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Don’t Tax Options and RSUs Upon Vesting

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Re: Don’t Tax Options and RSUs Upon Vesting

#211
post #29

The importance of this change can’t be understated; this effectively kills compensation at startups in the form of equity, and would make startups completely unable to compete with incumbents. Anyone that has options at a company that grows quickly would be paying tens or hundreds of thousands in taxes to keep their equity, which is still effectively a very risky bet that a company will end up huge. No one would want…

While this is an unintended consequence, how do you otherwise tax the massive equity compensation packages offered to executives? It has to be across the board.

How about taxing the options when they are actually sold, and gains are actually realized?

Re: Don’t Tax Options and RSUs Upon Vesting

#212

Earlier quoted context omitted.

I'm not sure that is better. Extra provisions on capital might be adding more capital to the mix, which increase wages all around. It might be shooting yourself in the foot. But hiding the information is a way for investors to have more leverage over employees. That is an undoubtedly unfair surplus to them. Its not the only thing I'd change. I would do away with the restriccions of investing in startups as well. That…

Why its to stop some shareholders being taken advantage of by companies with different share classes.

I think that effect is somewhat overrated. In the end, its best to let people get what they want. In that sense, not having information doesnt let people choose what they want.

Limiting what can be offered is more likely to prevent people from being able to get what they want.

Its possible that investors are very risk averse and so, are willing to pay a big premium for the preferred shares, one that employees are not willing to pay. In that case, employees actually win out on the deal, as they might not be as risk averse (as its only a small part of the compensation).

But in that game, the employee is barred from buying unlimitedly (min 1mm in assets) and also from knowing what everyone else is getting (which investors know).

I cant emphasize how big a loss it is to not let employees invest. Employees know a lot of things investors don't and share that information amongst each other, but can't give market signals because they cant buy or sell or disclose freely. I.E. if you saw a company where employees are all buying shares now, its great for both employees and the general public AND investing in general.

Not only that, but not being able to sell and exchange shares between employees means you cant hedge bets as employee. For example, you could pool a bunch of startup shares that way. Thats only for investor groups today.

Sometimes when I think the US is supposed to be the pinnacle of economic liberalism, I shed a few tears.

Re: Don’t Tax Options and RSUs Upon Vesting

#213
post #206
post #188

I'm going to say something that may be unpopular. Hopefully my karma can handle it. The latest analysis I saw of this from Fenwick says that this is only applying to non-qualified stock options. Employees get NSOs when you vest too much to get ISOs in a calendar year, based on the vesting schedule and value at the time of grant, not fair market value at time of vesting of the option. That limit is $100K, for people w…

Per the article and my understanding from other secondary sources, the tax-at-vest clause applies to RSUs as well as NQSOs. RSUs are frequently issued by companies that do not have a liquid market. So, tax-at-vest is still problematic for that class of employee compensation.

One would assume that companies would stop doing this and issue ISOs instead.

Re: Don’t Tax Options and RSUs Upon Vesting

#214
post #143
post #94

Earlier quoted context omitted.

This narrative isn't consistent with what the actual tax bill does, which is a massive redistribution of wealth to the very richest Americans. For example, what part of repealing the estate tax for inheritances above $5.5 million will help this urban middle class?

> For example, what part of repealing the estate tax for inheritances above $5.5 million will help this urban middle class? The narrative is that the tax bill is meant to help the rich and the rural red state poor at the expense of the urban blue state middle class.

I don't see how the tax plan helps the rural red state poor. It certainly helps the rich and prefers red states (people lose state and local deduction, businesses keep it). However, the rural red state poor already aren't paying much if any taxes. It's more of a red meat issue for them.

Re: Don’t Tax Options and RSUs Upon Vesting

#215
post #205
post #188

I'm going to say something that may be unpopular. Hopefully my karma can handle it. The latest analysis I saw of this from Fenwick says that this is only applying to non-qualified stock options. Employees get NSOs when you vest too much to get ISOs in a calendar year, based on the vesting schedule and value at the time of grant, not fair market value at time of vesting of the option. That limit is $100K, for people w…

It depends a lot on the pricing of that $100K. If that's based on price at time of vesting you run into big problems -- that's not how ISO's work currently but it's unclear exactly what is going to change in this bill. Say you get $50K/year in stock at the valuation based on the time you join the start-up and the start-up has on paper 10X growth in 2 years. In your 3rd year, your $50K of stock is $500K on paper so th…

I tried to be clear above -- the cap is based on the grant value, not the vested value -- ie it is strike price, not 409A (or other) exercise value.

Really, if you think about it, it could only be this way. You can't predict the future value of your company. If I give you an ISO grant now, but the company doubles in value next year and puts you over the cap, we're in a pickle.

Re: Don’t Tax Options and RSUs Upon Vesting

#216
I remember reading about a nightmare scenario of earlier Uber employees having to give up hundreds of thousands (or possibly millions) of dollars because of how their options were taxed. It has since changed, I believe, but it used to be that:

Upon leaving the company, they would have 90 days to exercise options. If they'd been there for a couple years during the fast growth phase, it's possible they had (e.g.) $500k in options with a strike price at $10k. Uber prohibited secondary market sales, so if you exercised your options, you had to hold on to them until IPO. However, you;d have to pay taxes on the gains on those vested options despite being unable to sell them. Suddenly you were on the hook for $171,500 in taxes ($490k * 35%) plus the $10k to vest as you quit your job -- or else lose out on $318,500 in value on those options. It led to a real golden-handcuffs situation where engineers couldn't really leave without walking away from fortunes.

Re: Don’t Tax Options and RSUs Upon Vesting

#217

Earlier quoted context omitted.

Existing grants would be grandfathered in, so giving them back may not make much sense. Future grants, though, should just be killed and you should negotiate for higher pay.

Is the grandfathering section clear on that? It mentions deferred compensation, which I'm not sure was a comment on options specifically or something else.

When would the new law take effect?

Re: Don’t Tax Options and RSUs Upon Vesting

#218
post #206

Earlier quoted context omitted.

Per the article and my understanding from other secondary sources, the tax-at-vest clause applies to RSUs as well as NQSOs. RSUs are frequently issued by companies that do not have a liquid market. So, tax-at-vest is still problematic for that class of employee compensation.

One would assume that companies would stop doing this and issue ISOs instead.

Its not that trivial. ISO's have a $100k limit.

Re: Don’t Tax Options and RSUs Upon Vesting

#219
post #188

I'm going to say something that may be unpopular. Hopefully my karma can handle it. The latest analysis I saw of this from Fenwick says that this is only applying to non-qualified stock options. Employees get NSOs when you vest too much to get ISOs in a calendar year, based on the vesting schedule and value at the time of grant, not fair market value at time of vesting of the option. That limit is $100K, for people w…

Do you have a link to this analysis? I couldn't find it online.

Re: Don’t Tax Options and RSUs Upon Vesting

#220
post #204
post #188

I'm going to say something that may be unpopular. Hopefully my karma can handle it. The latest analysis I saw of this from Fenwick says that this is only applying to non-qualified stock options. Employees get NSOs when you vest too much to get ISOs in a calendar year, based on the vesting schedule and value at the time of grant, not fair market value at time of vesting of the option. That limit is $100K, for people w…

You seem to be bringing up a really good point. From reading the article earlier, I was under the false impression that this applies to ISO's too but looks like it only applies to NSO's. What about non-public RSU's for late stage startups like Uber, Airbnb etc?

Those RSUs are a particular kind of promise, and it makes sense to use RSUs when the company has gotten very valuable because you hit the ISO cap pretty quickly and NSOs already have a tax-at-vest issue. My guess (IANAL) is that you'd just change the promise. "You will vest these RSUs when we go public and you can pay the taxes". I actually think there's _already_ an issue around this, because you can be vesting RSUs while the company is public but you are personally locked out and not allowed to trade them -- and yet you need to pay your taxes and the normal way to do that is to sell a portion of your RSUs. In the case I know of (Twitter), there was a special way of handling that on a one-time basis. I don't remember the exact details (it didn't apply to me), but they managed to work it out.
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