January.04.2024
Requirement to Report
For (1) any exercise of an incentive stock option (ISO) during 2023 or (2) transfer during 2023 of a share previously purchased pursuant to a tax-qualified employee stock purchase plan (ESPP), the Internal Revenue Code requires companies to:
With respect to reporting ESPP transactions, companies are required to report the first transfer of legal title to any share purchased under an ESPP plan where the purchase price paid for the share was (a) less than 100% of the fair market value on the date of grant or (b) not fixed or determinable on the date of grant. When a participant’s shares are put into a brokerage account on behalf of such participant, the transaction is considered a transfer of legal title and, if it is the first transfer of legal title of the shares, it must be reported to the IRS and to the participant. If instead a participant’s shares are issued directly to the participant or registered in the participant’s name on the company's records, the transaction does not need to be reported to the IRS or to the participant because such transaction is not considered a transfer of legal title. Companies should speak to their tax adviser if the purchase of shares under an ESPP does not trigger IRS reporting obligations.
Participant information statements may either be delivered or mailed to the participant’s last known address or, if the participant has given his or her consent to receive the statement electronically, provided in electronic format. The consent to receive the statement electronically must be made in a way that demonstrates that the participant can access the statement in the electronic format in which the statement will be provided. For example, if the statement will be sent as a Word attachment to an e-mail message, the consent also must be sent as a Word attachment to an e-mail message. Further, the participant must be provided with certain disclosures related to the consent, including the right to receive a paper copy and the manner in which consent may be withdrawn.
Format of Statement/Return
Returns for ISO and ESPP transactions must be submitted to the IRS on Form 3921 (for ISOs) and Form 3922 (for ESPPs). Companies may order Form 3921 and/or 3922 by calling the IRS at 1-800-829-3676 or through the IRS website (please note that, even though Forms 3921 and 3922 may be found on the IRS website, companies are not permitted to print and file these forms with the IRS; the IRS will only accept the official forms ordered from the IRS).
Participant statements may be provided on Form 3921 (for ISOs) and Form 3922 (for ESPPs) or may be provided using a different format that complies with the substitute form requirements found in IRS Publication 1179. At a minimum, substitute forms will need to contain all of the same information as the actual Form 3921 and 3922. Note that many stock plan administration platforms can provide assistance with the preparation and filing/delivery of Forms 3921 and 3922 or, if desired, substitute statements.
We expect that companies with a limited number of transactions will likely use Forms 3921 and/or 3922 (as opposed to substitute statements) since these forms will need to be prepared and submitted to the IRS in any event. Further, we expect that many companies will deliver the form(s) or substitute statements to their participants, along with a cover letter explaining the form or substitute statement. This is an example of a statement that could be provided with a Form 3921 for ISO transactions and this is an example of a statement that could be provided with a Form 3922 for ESPP transactions.
The IRS requires that a separate Form 3921 or Form 3922 as applicable be filed with the IRS for each transaction (i.e., each ISO exercise is reported on its own form), even if one participant has multiple transactions during the year. If a company provides participants with an information statement that meets the substitute statement requirements, the IRS has indicated that the company may aggregate transactions and provide only one substitute statement to each participant who had multiple transactions during the year.
Certain information must be included in the Forms 3921 and/or 3922 (or substitute forms), including for ESPP transactions, the price per share of ESPP stock transfers. If the exercise price is not fixed or determinable on the date of grant (e.g., the exercise price is the lesser of 85% of the fair market value on the first day of an offering period or 85% of the fair market value on the last day of an offering period), companies must report the exercise price as if the purchase occurred on the grant date (i.e., the first day of the offering period).
In addition, if any individual participant has more than one ISO transaction or more than one ESPP transaction in a calendar year, companies must include a unique account number on the form. The IRS has indicated that this number may be any number, not longer than 20 digits, and can contain numbers, letters and special characters. The unique number assigned to exercises/purchases by some stock plan administration programs could be used for this purpose. Otherwise, companies should create a system to assign numbers to each transaction. Finally, even though companies are only required to assign unique account numbers if a participant has more than one ISO or ESPP transaction in a year, we recommend that companies assign a number to every ISO and ESPP transaction, as we expect that this will be used by the IRS to track/locate transactions and will likely be easier to ensure compliance if it is done consistently for all transactions.
Electronic Submission of IRS Returns
Effective for returns required to be filed on or after January 1, 2024, companies that are required to file 10 or more ISO returns or 10 or more ESPP returns to the IRS must file the ISO or ESPP returns, as applicable, electronically through the IRS’ Filing Information Returns Electronically (FIRE) system. To submit through the FIRE system, companies will need to set up a FIRE account through the IRS website and will need a Transmitter Control Code (TCC). If a company is using a stock plan administration firm that will be submitting these returns on the company’s behalf, they will likely use their TCC. If a company is not filing through a stock plan administration firm and/or does not have a TCC, the company must get a TCC by completing an IR Application for TCC, formerly Form 4419, Application for Filing Information Returns Electronically, so that a TCC can be assigned to the company. Moreover, FIRE TCC holders who submitted their TCC application prior to September 26, 2021, must complete and submit a new application. As the TCC application process may take up to 45 days to process, the company should apply no later than February 16, 2024 (or March 18, 2024 if an extension is obtained) in order to timely file Forms 3921 or 3922 electronically. Also, to submit returns through FIRE, the company will need to create a submission file that meets the FIRE requirements. These formatting requirements for FIRE are somewhat onerous and, as a result, companies will likely need assistance in creating the submission file due to the formatting requirements (a number of stock plan administration firms are equipped to provide this assistance). In addition, while companies are permitted to voluntarily file electronically, because the process is challenging and potentially involves some cost to prepare the necessary file, most companies with limited transactions will find it more practical to prepare and file paper returns.
Penalties
The Internal Revenue Code imposes up to a US$310 penalty for each statement not furnished, or for each statement furnished to a participant with incomplete or incorrect information, up to a maximum penalty of US$3,783,000 ($1,261,000 for small businesses) per year. In addition, the Internal Revenue Code imposes up to a US$310 penalty for each return not filed with the IRS, or for each return filed with the IRS with incomplete or incorrect information, up to a maximum penalty of US$3,783,000 (US$1,261,000 for small businesses) per year. Greater penalties will apply if a company intentionally fails to provide a statement or file a return with the IRS.
Assistance
Please contact any member of Orrick’s Compensation and Benefits Group for further assistance on meeting these information statement and return requirements. If a company uses an external stock plan administrator, the company’s stock plan administrator may also be of assistance as many stock plan administrators have developed specific services to help companies comply with these requirements.
Disqualifying Disposition of ISO Shares
A company must report any ordinary income that an optionee recognizes in connection with a disqualifying disposition of ISO shares during the 2023 calendar year in box 1 of the optionee's 2023 Form W-2. Failure to report this income will prevent a company from taking a deduction for the ordinary income that results from the disqualifying disposition and may subject the company to certain reporting penalties.
A sale of ISO shares before the later of the date which is two years after the date of grant and the date that is one year after the date of exercise is treated as a disqualifying disposition. The ordinary income recognized on a disqualifying disposition is equal to the difference between the ISO exercise price and the lesser of the fair market value of the shares on the date of exercise or the sale price of the shares.
Disposition of ESPP Stock
If any person sold ESPP stock during the 2023 calendar year, the company must report in box 1 of the person's 2023 Form W-2 the amount of the purchase price discount (described below), if any, on the ESPP stock and, if the ESPP stock was sold in a disqualifying disposition, any ordinary income that the person recognized when the shares were sold. The "purchase price discount" is the difference between the fair market value of the shares on the first day of the offering period and the purchase price that would result if the shares were actually purchased on the first day of the offering period. For example, if the purchase price of the ESPP stock is equal to the lesser of 85% of the fair market value on the first day of the offering period and 85% of the fair market value on the last day of the offering period (the purchase date), the purchase price discount is 15% of the fair market value on the first day of the offering period. Failure to report this income will prevent a company from taking a deduction for the ordinary income and may subject the company to certain reporting penalties.
A sale of ESPP stock before the later of the date which is two years after the first day of the offering period or the date which is one year after the purchase date is treated as a disqualifying disposition. The ordinary income recognized on a disqualifying disposition is equal to the difference between the purchase price and the fair market value of the shares on the purchase date.
If you would like additional information on the topic discussed in this Compensation and Benefits Alert, please contact any member of Orrick’s Compensation and Benefits Group.