Complying with the New 2010 Reporting Requirements for Incentive Stock Options and Employee Stock Purchase Plans

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1 EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION IN THE NEWS December 2010 Complying with the New 2010 Reporting Requirements for Incentive Stock Options and Employee Stock Purchase Plans Statements for Incentive Stock Options Exercises 3 Statements for ESPP Option Transfers 3 New IRS Forms 3921 and Penalties 4 I n November 2009, the IRS issued final regulations relating to the reporting and filing requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the Code) with respect to the exercise of incentive stock options (ISOs) and certain transfers of stock under an employee stock purchase plan (ESPP). As anticipated, the final regulations retained the established set of information required to be reported on employee information statements and employer information returns which must be provided on new IRS Form 3921 (Exercise of a Qualified Incentive Stock Option under Section 422(b)) and Form 3922 (Transfer of Stock Acquired Through an Employee Stock Purchase Plan under Section 423(c)). The final regulations, however, provided transition relief by waiving the reporting requirements for stock transfers during 2007, 2008 and Thus, the first such information reports and information statements must be filed by companies by January 31, 2011 for calendar year 2010 ISO and ESPP transactions. This tracks the delivery date of Form W-2s which are also needed by individuals to prepare their Form 1040s for a given calendar year. As such, companies need to start gearing up to meet this new information filing requirement. St. Louis Chicago Denver Phoenix Washington DC New York Wilmington DE Overland Park St. Joseph Springfield Jefferson City Topeka Edwardsville Redefining the business of law. SM

2 Code Section 6039 provides that a company must comply with certain information return and information statement requirements for any calendar year in which the company. The requirements are as follows: In this e-alert we discuss the following areas: Statements for Incentive Stock Options Exercises Transfers to any person a share of stock pursuant to such person s exercise of an ISO Records (or has by its agent record) a transfer of the legal title of a share of stock acquired by the transferor pursuant to his/her exercise of an option described in Code Section 423(c) (relating to the special rule where the option price is between 85 percent and 100 percent of the value of the stock) (an ESPP Option) Statements for ESPP Option Transfers New IRS Forms 3921 and 3922 Penalties Note that no Code Section 6039 reporting is required for nonresident aliens if a Form W-2 is not required to be provided to such individual for any part of calendar year between the date of grant and the date of exercise (e.g., for an ISO) or first transfer of legal title (e.g., for an ESPP). Page 2 of 7

3 Statements for Incentive Stock Options Exercises The information statement that a company must furnish to the recipient of an ISO upon such recipient s exercise of the ISO must include the following information: The number of shares of stock transferred to the person pursuant to the exercise of the option Again, this statement must be furnished by January 31 of the calendar year following the calendar year in which the recipient exercised the ISO. Statements ESPP Option Transfers The name, address and employer identification number of the corporation transferring the stock The name, address and identifying number of the person to whom the share or shares of stock were transferred The name, address and employer identification number of the corporation the stock of which is the subject of the ISO (if other than the corporation transferring the stock) The date the ISO was granted The exercise price per share The date the option was exercised by the person The fair market value of a share of stock on the date the option was exercised The information statement that the company must furnish to the recipient of the ESPP Option upon such recipient s transfer of the stock acquired pursuant to the ESPP Option must include the following information: The name, address and employer identification number of the corporation whose stock is being transferred The name, address, and identifying number of the transferor The date such stock was transferred to the transferor The fair market value of the stock on the date the option was granted The actual exercise price paid per share The exercise price per share determined as if the option were exercise on the date the option was granted to the transferor (if the exercise price per share is not fixed or Page 3 of 7

4 determinable on the grant date) The date the option was exercised by the transferor The fair market value of the stock on the date the option was exercised The date the legal title of the shares was transferred The number of shares to which title is being transferred What is meant by or included in the term transfer? If the shares underlying the ESPP Option were acquired and are still held by the employee, for example, there is no transfer as contemplated by Code Section As such, the transactions/transfers which are being targeted for reporting include, but are not limited to: An employee who sold the shares in their ESPP account and received cash An employee who took a distribution of his/her ESPP shares directly (because now the corporation can no longer track what that individual is doing with those acquired shares) An employee who rolled his/her acquired ESPP shares to another brokerage account Basically, any instance where the company can no longer track the holding period related to those ESPP shares must be reported on the statement so the IRS has a record of the holding period and can then track it independently. This is necessary because ESPP stock only gets favorable tax treatment if certain holding periods are met. New IRS Forms 3921 and 3922 The final regulations require the reports filed by a company to be made on Form 3921 for ISOs and Form 3922 for ESPPs. These information returns must be delivered in person or sent to the last known address of the individual who exercised the ISO or transferred shares under the ESPP. The regulations provide that these information returns may be sent electronically if the individual has previously consented and certain procedures are followed. Companies required to file 250 or more of such forms for a given calendar year must do so electronically (through the FIRE system, see IRS Publication 1220). Note that the 250-or-more requirement applies separately for each type of return (i.e., if a company has 250 Forms 3921 to file, it must file electronically, but if the company has 125 Forms 3921 and 125 Forms 3922 to file, there is no electronic filing requirement). Penalties With regard to filing employer information reports, the IRS imposes a penalty for statements which are not timely delivered or that contain incorrect or incomplete information. Page 4 of 7

5 If a company misses the filing date by 30 days or less, then the penalty is $15 per form (with a $75,000 cap maximum) If the company misses the filing date by greater than 30 days but files by August 1, then the penalty is $30 per form (with a $150,000 cap maximum) If the company files after August 1 or not at all, then the penalty is $50 per form (with a $250,000 cap maximum) With regard to filing employee information statements, the IRS imposes a penalty for a failure to timely deliver such statements. The penalty is $50 per statement (with a $100,000 cap maximum per calendar year). What You Need To Do Now Because a company will need to put appropriate procedures in place to ensure that the correct information is captured and reported in early 2011, a company should allocate resources and attention to this issue now to provide themselves with suitable response time. Further, if a company does not track these reportable transactions through an agent or vendor, then extra time will be necessary for that company to actually develop a process for coordination of the information. Where a company intentionally disregards the reporting requirements, the penalty caps significantly increase. For More Information If you have questions or would like more information on this topic, please contact: Mary K. Samsa msamsa@polsinelli.com Courtney M. Brunsfeld cbrunsfeld@polsinelli.com Page 5 of 7

6 EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION ATTORNEYS Brian M. Johnston, Chair Courtney M. Brunsfeld St. Louis Michael V. Conger Hannah R. DeLuca Jamie Zveitel Kwiatek St. Louis Mary K. Samsa Chicago Randal L. Schultz William P. Sweeney Chicago Polsinelli Shughart PC has a deep bench of qualified Employee Benefits attorneys who cover all aspects of plan creation and design, plan compliance and executive compensation agreements. Collectively our attorneys have more than 100 years of combined employee benefits expertise, providing practical, proactive advice, while also striving to develop innovative solutions to all of your employee benefit needs. In this increasingly complex area of compliance responsibility, with a multitude of different legal requirements under the Internal Revenue Code, the Employee Retirement Income Security Act, among other state and federal mandates, the team will work with you to not only minimized the risk of problems, but to develop a strategy for success. A key to such success lies in the development of initial advisory alerts, training programs, educational campaigns and regular internal memorandums that properly outline the compliance obligations as well as the keys of the organization s successful usage of such arrangements. Polsinelli Shughart employee benefit and executive compensation attorneys practice in the following areas: Retirement plans Welfare benefit plans ERISA fiduciary duty and plan investment counseling Employee stock ownership plans ERISA and employee benefit plan litigation Executive compensation To learn more about our services, visit us online at Page 6 of 7

7 EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION ABOUT About Polsinelli Shughart PC With more than 500 attorneys, Polsinelli Shughart PC is a national law firm that is a recognized leader in the areas of business law, financial services, real estate and business litigation. Serving corporate, institutional and individual clients, Polsinelli Shughart is redefining the business of law by sharing ideas, goals and outcomes with its clients. The firm builds enduring relationships by creating value beyond legal services - with passion, ingenuity and a sense of urgency. The firm has offices located in ; St. Louis; Phoenix; Chicago; Denver; Washington, D.C.; New York; Wilmington, Del.; Overland Park, Kan.; St. Joseph, Springfield, and Jefferson City, Mo.; Topeka, Kan.; and Edwardsville, Ill. The firm can be found at About this Publication If you know of anyone who you believe would like to receive our updates, or if you would like to be removed from our e-distribution list, please contact Therese O Shea via at toshea@polsinelli.com. Polsinelli Shughart PC provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship. Polsinelli Shughart is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements. Polsinelli Shughart is a registered trademark of Polsinelli Shughart PC. Page 7 of 7