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Backdated Options
On Feb. 8, 2007, the Internal Revenue Service ('IRS') made an usual offer to employers: on very short notice ' by Feb. 28, 2007, employers could inform the IRS of their intent to pay the back taxes and penalties owed by (non-insider) employees who exercised stock options with 'an exercise price of less than fair market value of the underlying stock on the date of grant in 2006.' See IRS Announcement 2007-18 ('Corporate Resolution Program For Employees Other Than Insiders For Additional 2006 Taxes Arising Under '409A due to the Exercise of Stock Options') ('Announcement 2007-18' or 'Program'). Under this Program, companies with backdated options programs were 'allowed' to calculate and pay, by June 30, 2007, on behalf of their employees who exercised such options, a 20% penalty tax, and an additional 1% interest on underpayments, owed by such employees under ' 409A of the Internal Revenue Code ('IRC').
If your company is taking the IRS up on the offer, you will have the satisfaction of knowing that you can pay taxes that your employees, not the company, really owe. The amounts you pay on your employees' behalf will be included in the employees' gross incomes for 2007, as they would have been if the IRS Announcement 2007-18 had not been issued. And you will have openly alerted the IRS, and possibly the Securities and Exchange Commission, to the fact that your stock options program has historically included (if it does not still include) backdated or 'in the money' options. And certainly you will have saved the IRS a lot of paperwork by calculating what is owed by each employee who exercised such options last year. I hope for your sake that this does not result in a time-consuming and troublesome audit or other investigation of the entire company's backdating practices.
But it is doubtful that many ofthe readers of this article signed up for the Program provided for in Announcement 2007-18. Even though the Feb. 28, 2007, 'deadline' set in the Program has passed, you can still pay such taxes for your employees, or pay them a 'gross-up' bonus or other compensation in an amount equal to the what they owe for such taxes, as you could have before the Program was announced. So the IRS wasn't really giving you a break ' in substance the 'Program' was a bogus inducement to get you to do what you could have done anyway, and still can do.
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