Hi guys, I wanted to get a second opinion on my reading of a section of the tax code. I’ve been stuck on this for way too long so input is appreciated.
The short version of the questions is: “Can the gain on the installment sale of a disqualified ISO be reduced in the year of sale?”
Here’s the full story:
I have a client that had Incentive Stock Options that were exercised, and then sold days later as part of the sale of a business. The sale involved an esrow account that held back 100K of the sale price to be distributed over two years assuming there is not problems.
The rules of incentive stock options say if you exercise them and do not hold them for a year, you owe tax on the difference between FML and option price as ordinary income. My question is the following:
IRC 422(c)(2) says:
(A) an individual who has acquired a share of stock by the exercise of an incentive stock option makes a disposition of such share within either of the periods described in subsection (a)(1), and
(B) such disposition is a sale or exchange with respect to which a loss (if sustained) would be recognized to such individual,
then the amount which is includeable in the gross income of such individual, and the amount which is deductible from the income of his employer corporation, as compensation attributable to the exercise of such option shall not exceed the excess (if any) of the amount realized on such sale or exchange over the adjusted basis of such share.
And the section 422(a)(1) says:
“(1) no disposition of such share is made by him within 2 years from the date of the granting of the option nor within 1 year after the transfer of such share to him, and”
The sub section starts with the words “no disposition of such share is made by…” and then it describes the time period. The client is in the description of the time period that starts after that point, but my interpretation is because it starts with saying no disposition can be made in that time described, he is not “within either of the periods described in subsection (a)(1)”. To be within that time period, he would have to abide by that full description of not having a disposition that meets that time period.
This phrasing is tricky and I could see how it could go either way so I thought I’d look for other points of view as delaying the ordinary income would make a big difference, but I don't think it can be done. Thanks if any of you have time. Full code section for reference: http://www.law.cornell.edu/uscode/text/26/422
The short version of the questions is: “Can the gain on the installment sale of a disqualified ISO be reduced in the year of sale?”
Here’s the full story:
I have a client that had Incentive Stock Options that were exercised, and then sold days later as part of the sale of a business. The sale involved an esrow account that held back 100K of the sale price to be distributed over two years assuming there is not problems.
The rules of incentive stock options say if you exercise them and do not hold them for a year, you owe tax on the difference between FML and option price as ordinary income. My question is the following:
IRC 422(c)(2) says:
(A) an individual who has acquired a share of stock by the exercise of an incentive stock option makes a disposition of such share within either of the periods described in subsection (a)(1), and
(B) such disposition is a sale or exchange with respect to which a loss (if sustained) would be recognized to such individual,
then the amount which is includeable in the gross income of such individual, and the amount which is deductible from the income of his employer corporation, as compensation attributable to the exercise of such option shall not exceed the excess (if any) of the amount realized on such sale or exchange over the adjusted basis of such share.
And the section 422(a)(1) says:
“(1) no disposition of such share is made by him within 2 years from the date of the granting of the option nor within 1 year after the transfer of such share to him, and”
The sub section starts with the words “no disposition of such share is made by…” and then it describes the time period. The client is in the description of the time period that starts after that point, but my interpretation is because it starts with saying no disposition can be made in that time described, he is not “within either of the periods described in subsection (a)(1)”. To be within that time period, he would have to abide by that full description of not having a disposition that meets that time period.
This phrasing is tricky and I could see how it could go either way so I thought I’d look for other points of view as delaying the ordinary income would make a big difference, but I don't think it can be done. Thanks if any of you have time. Full code section for reference: http://www.law.cornell.edu/uscode/text/26/422