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Discount Stock Options As Deferred Compensation

By Kenneth B. Tillou and Matthew B. Tenney
October 31, 2005

Recent legislation has heralded a dramatic shift in the United States federal income tax treatment of nonqualified deferred compensation arrangements. One of the potentially more far-reaching aspects of the legislation is its effect on individuals who receive certain non-statutory stock options for their services. This article focuses on the circumstances under which the Act treats compensatory stock op-tions as nonqualified deferred compensation for federal income tax purposes, the consequences of such treatment, and the resulting practical considerations in dealing with the treatment of certain stock options as nonqualified deferred compensation.

Background

In October 2004, President Bush signed into law the American Jobs Creation Act (the Act). The Act added new Section 409A to the Internal Revenue Code of 1986 (the Code) generally effective for amounts deferred after Dec. 31, 2004. Concerned about “the popular use of deferred compensation arrangements by executives to defer current taxation of substantial amounts of income,” Congress enacted Code Section 409A to narrow the circumstances under which executives could effectively defer the recognition of taxable compensation. In doing so, however, Congress cast an extremely wide net. Section 409A draws no distinction between executives and lower echelon employees and it defines the targeted class of “nonqualified deferred compensation plans” in the broadest possible terms subject to a very limited list of exceptions. As a result, certain compensatory non-statutory stock option arrangements are now subject to the Code Section 409A regime, with possibly disastrous tax results to the option holders.

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