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Subject:   Questionable Fair Market Value
Date:   Thu, 24 Jan 2002
From:   Fred

Mike,

I have a question I was hoping you might be able to answer.

If I disagree with the fair market value that my private company has set for the exercise date of my options, is there any way to dispute this or claim a lower price? The company claims they were giving out options at the same time I exercised for some value $X.XX. This to me has no bearing on the fair market value since it is a private company and they are semi-randomly raising the option price themselves.

In my case, the difference of $1.50 in the FMV of the options is the difference between no AMT and a few thousand dollars extra tax!

Thanks in advance if you can help,
Fred

Answer

Hello Fred,

The employer is given considerable latitude in determining the fair market value of its stock when it isn't publicly traded. When the employee reports income using a different value, especially when the information is reported on a Form W-2 by the employer, the stage is set for a tax dispute, because the IRS is being "whipsawed" about the deduction the employer is entitled to and the income the employee must report.

This means the employee should have some proof that that the value he or she is using is correct and the employer is in error. Ideally, the employee should get a value determined by a qualified appraiser. This is an expensive proposition, and will probably require the cooperation of the employer's accounting department.

First, go to your employer to see if you can get it to agree to use a lower value for determining your tax preference. This is much less expensive than getting an appraisal or litigating a tax dispute. Also, reporting inconsistently with your employer's representations will not make you popular with your employer.

If you are only talking about a couple of thousand dollars of tax, it's probably not worth the trouble to dispute the value. Just pay the tax.

Good luck!

Mike Gray

For more information about incentive stock options, request our free report, Incentive Stock Options - Executive Tax and Financial Planning Strategies.

IRS Circular 230 Disclosure: As required by U.S. Treasury Regulations, you are hereby advised that any written tax advice contained in this answer was not written or intended to be used (and cannot be used) by any taxpayer for the purpose of avoiding penalties that may be imposed under the U.S. Internal Revenue Code.