Section Review

Section Review runs practice area-specific articles as part of the MBA's bi-monthly Lawyers Journal.

Tax consequences related to the transfer of stock options in a divorce

Issue July 2014 July 2014 By William H. Schmidt and Amy L. Green


For some employees, stock options are regular components of their compensation packages, whether received as non-qualified stock options (NSOs) or incentive stock options (ISOs). Challenges for these employees and their attorneys often arise during a divorce when determining how to treat said stock options for purposes of division of assets and support awards and the tax consequences that follow. In 2001, Massachusetts courts concluded that language in M.G.L. c. 208, s. 34 clearly indicates that both vested and unvested stock options may be treated as marital assets for purposes of dividing a marital estate. Massachusetts courts have also concluded that income from the exercise of stock options can be considered as part of gross annual income under a divorce judgment. For those stock options divided as assets, there are a number of factors to consider, determined primarily by what type of stock option(s) the employee has been granted.

Types of grants
Nonqualified stock options
Nonqualified stock options (NSOs), or nonstatutory stock options, are more commonly granted than incentive stock options (ISOs). NSOs do not carry the same tax advantages as ISOs for employees. Employers are able to deduct the spread between the strike price and the price at which the option is exercised as compensation, making NSOs more favorable for employers to grant. NSOs generally are not taxable to employees upon the grant of the option. The first taxable event occurs upon exercise of the option. Upon exercise, the employee receives compensation income equal to the spread between the strike price and the price on the date of exercise and pays ordinary income tax on the spread. The employer receives a tax deduction equal to the income recognized by the employee upon exercise. The sale of stock triggers a second taxable event with respect to the gain on the sale, which is the excess of the sale price over the price on the date of exercise. If the stock is sold at least one year after the option is exercised, the employee pays long-term capital gain taxes, but if the stock is sold within a year of exercise, the employee pays ordinary tax rates.

NSOs can be granted to anyone, including employees, consultants, advisors and directors. Further, NSOs may be transferrable in the case of divorce, depending on the stock plan. Because NSOs can be granted to anyone and they are more favorable to employers, stock options to be considered in a divorce will most likely be NSOs.

Incentive stock options
ISOs are options that conform to all of the statutory requirements of IRC §§ 421, 422 and 424 at the time of the grant. ISOs are more favorable to the employee from a tax standpoint and less advantageous for employers. Therefore, they are granted less often than NSOs. Like NSOs, ISOs are not taxed upon the grant of the option. If an employee makes a disposition of the stock received from the exercise of the incentive stock option within two years of the date he or she was granted the option and within one year after the date exercised, the spread is treated as ordinary income and is taxed accordingly. Any appreciation subsequent to the exercise will be taxed as a short-term capital gain. Provided the employee exercises the options more than one year after vesting and sells the stocks more than two years after the options were granted, the amount realized on sale in excess of the strike price is taxed as long-term capital gains, an advantageous tax treatment for the employee as this can lead to significant savings over an NSO.

Despite the favorable income tax treatment of ISOs for employees, ISOs are treated as NSOs for purposes of the Alternative Minimum Tax. ISOs can only be granted to employees and if an employee leaves his or her job, he or she has three months to exercise the options or they revert to NSOs. Pursuant to IRC § 422, ISOs are not transferrable. Therefore, ISOs cannot be transferred by an employee to a nonemployee spouse in a divorce.

Issues to consider
Is an employee who transfers nonstatutory stock options to a former spouse pursuant to a divorce required to include an amount in gross income upon the transfer?
IRC § 1041(a) provides that no gain or loss is recognized on a transfer of property if incident to divorce. IRC § 1041(b) provides that the property transferred is generally treated as acquired by the transferee by gift and that the transferee's basis in the property is the adjusted basis of the transferor.

Although a transfer of nonstatutory stock options as part of a property settlement may involve exchange for money, property or other consideration, it would contravene the gift treatment prescribed by IRC § 1041 to include the value of the consideration in the transferor's income under IRC § 83. Accordingly, the transfer of stock options pursuant to a divorce is entitled to nonrecognition treatment under IRC § 1041. Rev. Rul. 2002-22, Part 1, Section 61. This tax treatment only applies to the transfer of vested options. When the transferee exercises the stock options, the transferee realizes ordinary income to the extent that the value of the stock on the date of exercise exceeds the amount paid for the stock. The employee/transferor is not required to include any amount in gross income when the transferee exercises the stock options.

What is the effect upon taxation under FICA, FUTA and income tax withholding of a transfer of nonstatutory stock options incident to divorce?
Federal Insurance Contributions Act (FICA): IRC §§ 3101 and 3111 impose FICA taxes on "wages," as defined in § 3121(a). These taxes are imposed on both the employer and employee. IRC § 3102(a) provides that the employee portion of FICA taxes must be collected by the employer of the taxpayer by deducting the amount of the tax from wages as and when paid. IRC § 31.3102(a)-1(a) provides that the employer is required to collect the tax, notwithstanding that wages are paid in something other than money. Section § 3102(b) provides that every employer required to deduct the FICA employee tax is liable for the payment of that tax, and is indemnified against the claims and demands of any person for the amount of any such payment made by such employer. See IRS Rev. Rul. 2004-60.

The fact that payments are includible in the gross income of an individual other than an employee, here the employee's former spouse, does not remove the payments from FICA wages. Nothing in IRC § 1041, pertaining to transfers of property between spouses or incident to divorce, excludes payments to a person other than an employee from wages for purposes of FICA. Thus, the payment of such remuneration is subject to FICA to the same extent as if paid to the employee spouse. See IRS Rev. Rul. 2004-60.

To the extent the distributed payments are FICA wages, the employee FICA tax is deducted from the payment made to the transferee. The amount includible in the gross income of the transferee is not reduced by any FICA withholding from the payments, including transfers of property, to the transferee. See Rev. Rul. 86-109 and Rev. Rul. 71-116.

Federal Unemployment Tax Act (FUTA): The FUTA taxation provisions applicable with respect to nonstatutory stock options are similar to the FICA provisions, except that only the employer pays the tax imposed under FUTA. See IRC §§ 3301, 3306(b) and 3306(b)(2) and the regulations thereunder. To the extent wage taxation applies, the wages are FUTA wages of the employee, subject to the maximum wage base contained in § 3306(b)(1).

Income tax withholding: IRC § 3402(a), relating to income tax withholding, generally requires every employer making a payment of wages to deduct and withhold upon these wages a tax determined in accordance with prescribed tables or computational procedures. IRC § 3401(a) provides that "wages" for income tax withholding purposes means all remuneration for services performed by an employee for his employer, including the cash value of all remuneration, including benefits, paid in any medium other than cash, with certain exceptions. Under Treasury Regulation § 31.3402(a)-1(c), an employer is required to deduct and withhold the tax notwithstanding that the wages are paid in something other than money. Therefore, an employer is required to deduct and withhold the tax even when the wages are paid by way of stock options.

IRC § 31 provides that the amount withheld from wages as income tax withholding will be allowed as a credit against the income taxes imposed by Section A to the "recipient of the income." The "recipient of the income" for purposes of the § 31 credit, pursuant to Treasury Regulation § 1.31-1(a), is the individual who is subject to income taxes upon the wages from which the tax was withheld. Because the compensatory interests transferred under § 1041 to the nonemployee spouse pursuant to the divorce remain taxable for employment tax purposes to the same extent as if retained by the employee spouse, the income recognized by the nonemployee spouse with respect to the exercise of the nonstatutory stock options are considered remuneration for employment and wages for purposes of income tax withholding under § 3402. Therefore, pursuant to § 1.31-1(a), because the income recognized with respect to this compensation is includible in the gross income of the nonemployee spouse, the nonemployee spouse is entitled to the credit for the income tax withheld with respect to these wage payments. See IRS Rev. Rul. 2004-60.

Reporting income: IRC § 6051 requires those who remunerate employees to report said payments on a Form W-2. Given the nonemployee spouse is not an employee, the reporting requirements of IRC § 6051 do not apply. Under a scenario where a nonemployee spouse realizes income from the exercise of the nonstatutory stock options, the employer, under § 6041(a), must file an information return reporting said income. The income realized upon the exercise of the nonstatutory stock options would be reportable to the nonemployee spouse by the employer on Form 1099-MISC and issued to the nonemployee spouse. See IRS Rev. Rul. 2004-60.

Under Treasury Regulation § 31.6051-1(a)(1), the employee's wages that are subject to social security and Medicare taxes are included in the appropriate boxes on the employee's Form W-2 issued by the employer.

What is the effect of the transfer of stock received upon exercise of an ISO?
IRC § 424(c)(4) provides that in the event of a transfer of stock between spouses or incident to divorce, as described in § 1041(a), said transfer of stock should not be treated as a disposition. Further, the same tax treatment with respect to the transferred stock shall apply to the nonemployee/transferee as would have applied to the employee/transferor.

When representing clients in a divorce who are receiving stock issued upon the exercise of an ISO, special attention should be given to the grant date of the original option. Provided the option was exercised more than one year after vesting and the transferee then sells the stocks more than two years after the grant of the option, the amount realized on sale in excess of the exercise price is taxed as long-term capital gains. Otherwise, the amount realized is treated as ordinary income and is taxed accordingly.

Though significant attention is often given to the categorization of stock options, specifically, whether they should be deemed assets for division or as income for purposes of calculating support, all too often insufficient attention is paid to the tax consequences related to the options. Attorneys should be mindful throughout the divorce process of the stock options granted to an employee client and the potential tax consequences related to the disposition of same. It is often prudent to engage a tax professional to advise clients on the specific tax consequences applicable to his or her specific scenario.