Qualified employees at private companies who are granted non-qualified stock options (NSOs) or restricted stock units (RSUs) and who later receive stock upon exercise of the option or upon settlement of the RSU may elect to defer the recognition of income for federal income tax purposes for up to 5 years if certain requirements are met. This is the new IRS Section 83(i) election to defer income tax on stock grants. These rules apply to stock attributable to options exercised, or RSUs settled, after December 31, 2017.

By combining an 83(i) election and an ESO Fund advance of the taxes you need up front, you are essentially getting the float for 5 years until you actually forward the money to the IRS. Moreover, you are avoiding the risk of the stock’s value collapsing or not yet being public but still having to pay the IRS at the end of 5 years.

How can an employee exercise an NSO and defer the recognition of income for federal income tax purposes for up to 5 years without being subject to immediate withholding?

The 83(i) election is made in a manner similar to that for an 83(b) election. The election must be made no later than 30 days after the options are exercised and no longer subject to vesting. The employee must file the 83(i) election form with the Internal Revenue Service by certified mail and provide the employer with a copy of the 83(i) election form. (83(i) Form) An 83(i) election cannot be made if an 83(b) election was made.

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Can ISO exercises benefit from any kind of 5-year AMT deferral under this provision?

No, the 83(i) election is not applicable to ISOs. If an 83(i) election is made for an option exercise, then that option will not be considered an ISO and will not receive ISO tax treatment.

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What does the company need to do in order to in order to comply with the new rules?

Notice Requirement. Employers are required to provide notice to their employees that they are eligible for the 83(i) election at the time (or a reasonable period before) the employee’s right to the qualified stock is substantially vested (and income attributable to the stock would first be includible absent an 83(i) election). Noncompliance can result in a fine of $100 for each failure, not to exceed $50,000.

‍Reporting Requirement. For each employee, employers must report in Form W-2, box 12, code GG the amount included in income in the calendar year from qualified equity grants under IRC Section 83(i), and in code HH the total amount of income deferred under IRC Section 83(i) determined as of the close of the calendar year. Then the employer must provide to the electing employee a written statement showing (1) the amount includible in gross income for the tax year when a statutory inclusion event occurs, and (2) the aggregate income amount that is being deferred under an 83(i) election, as of the close of the calendar year.

‍Deferred Employer’s Deduction. If an employee makes an 83(i) election, the employer’s deduction is deferred until the employer’s tax year in which or with which ends the tax year of the employee for which the amount is included in the employee’s income.

‍Withholding Requirement. The employer must withhold federal income tax at 37% in the tax year that the amount deferred is included in the employee’s income.

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What if an exit occurs before the end of the 5 year deferral period or if the real exit is for a valuation lower than the valuation at the time of the 83(i) election?

States may, but are not required to, conform to federal tax laws. For example, California does not generally conform to the federal income tax law, while New York generally conforms to most federal income tax provisions. As a result, California and New York may adopt different rules regarding the recognition of income upon making the new 83(i) election. Please consult with a Certified Public Accountant (CPA) in your state of residence, if you have not already done so, to determine the state income tax treatment of the option exercise and 83ielection.

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Where can I find an 83(i) election form?

ESO Fund cannot guarantee the validity of the sample 83(i)Form against the ever-changing tax code. As such, it is your responsibility to contact a tax professional.

For help funding exercise related taxes, check out how ESO Fund can cover your taxes risk-free.

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