7546 / How is the grant of an incentive stock option taxed? How is the exercise of the option taxed?

No income is realized by the employee upon the grant of an incentive stock option. If the transfer of stock pursuant to the exercise of an incentive stock option is a qualifying transfer, no income will be realized by the employee at the time the option is exercised.¹ The transfer will be a qualifying transfer if both of the following requirements are met:

(1)   Holding period requirement: no disposition (defined below) of the stock may be made by the employee within two years of the date the option was granted, nor within one year of the date the stock was transferred pursuant to the option; and

(2)   Employment requirement: the transferee must be employed by the corporation granting the option (or its parent or subsidiary) at all times from the date the option was granted until three months before the date of exercise.²

If an employee becomes permanently and totally disabled, the three-month employment period is extended to 12 months.³ In the case of the death of an employee, the employment and holding requirements are waived.⁴

If an incentive stock option is exercised by an individual who does not meet the employment requirement described above (except in the event of the employee’s death), there will not be a qualifying transfer and the individual will recognize compensation income in the year the option is exercised. The amount of compensation income realized will be the excess, if any, of the fair market value of the stock over the exercise price of the option⁵ (see Q 7553 regarding disqualifying transfers).

In other words, if the employment requirement is met, the question of whether a transfer is a qualifying transfer can be answered with certainty only after the holding periods have been satisfied. If the holding periods and employment requirement are met, the taxpayer’s subsequent disposition of the stock will be taxed as explained in Q 7552. If the one-year and two-year holding periods are not eventually satisfied, ordinary income is realized as of the date the option is exercised, which is recognized (i.e., taxed), in the year of the disposition, as explained in Q 7553.

For purposes of the holding period requirement, “disposition” includes sales, exchanges, gifts, and transfers of legal title. The following will not constitute a disposition: (i) a transfer from a decedent to an estate or a transfer by bequest or inheritance; (ii) certain exchanges pursuant to a corporate reorganization or exchanges of stock for stock of the same corporation or a controlled corporation; or (iii) the making of a mere pledge or hypothecation. Additionally, the acquisition of stock as a joint tenant with right of survivorship or transfer of stock to joint ownership will not constitute a disposition until the joint tenancy is terminated.⁶ A transfer between spouses or former spouses incident to divorce also will not be considered a disposition, and the transferee spouse will receive the same tax treatment that would have applied to the transferor.⁷ The IRS determined that a transfer to a grantor trust, resulting in ownership of stock by two spouses with right of survivorship, did not constitute a disposition.⁸

For purposes of the one-year and two-year holding period requirements, a transfer resulting from bankruptcy proceedings will not be considered a disposition.⁹ However, such a transfer will be considered a disposition for purposes of the recognition of capital gain or loss.¹⁰

Generally, an individual’s basis in stock acquired in a qualifying transfer upon exercise of an incentive stock option is the amount paid to exercise the option. (If there is a disqualifying disposition, the individual’s basis is increased by amounts includable as compensation income (see Q 7553).

In informational guidance released in 2002, the IRS analyzed whether the “deemed sale” election under Section 311(e) of TRA ’97 (see Q 702) is a “disposition” within the meaning of IRC Section 424(c) under two circumstances: (1) where employees are holding incentive stock options that were granted to them prior to 2001, but that were not exercised as of January 1, 2001, and (2) where employees were granted incentive stock options and exercised those options during November 2000. In the first situation, the IRS stated that there is no provision in
Section 311(e) or the incentive stock option rules providing for a “deemed exercise” of the option in order to have the holding period start in 2001. In the second situation, the Service stated it appeared that any deemed sale of the stock acquired upon exercise of an incentive stock option would be treated as a disqualifying disposition for purposes of the incentive stock option rules, thus triggering the application of IRC Section 83. The Service concluded by stating that the informational guidance did not constitute a ruling on any issue. The Service also recognized that the interaction of the incentive stock option rules with the Section 311(e) election is a novel issue that the Service has not yet addressed.¹¹

The Service released regulations relating to the required return and information statements under IRC Section 6039 in 2009.¹²