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What happens to Non-Qualified Stock Options when the holder dies?

June 16, 2000

Question 1

Subject:   Non Qualified Stock Options
Date:   Thu, 10 Feb 2000
From:   John and Roz

I am executor of a small estate that has non qualified employee stock options. No income was recognized or tax paid when the options were granted. The options are for a company that is publicly traded. The options have a grant price of $X and the market value of the stock at the date of death was $Y. The stock price is now $Z. What is the amount of income that the estate reflects on the K-1's to pass through to the beneficiaries if the stock options were exercised and sold today? Is any ordinary income recorded when exercised as would have been the case if the employee were alive and/or will any gain be recognized when it is sold?

Question 2

Date:   Wed, 17 May 2000
From:   Kathy

A descedent left unexercised non-qualified stock options to his heirs. For Federal Estate Tax purposes will his options be priced the day of death? When the stock is distributed to his heirs what will be the basis for the stock?

Regards,
Kathy McGarity

Answer

Date:   Mon, 12 June 2000

Hello John, Roz and Kathy,

Of course, if the option is cancelled at death, it is not reported on Form 706 and there is no income tax issue.

Assuming the option is not cancelled at death, a non-qualified option keeps its character after death.

In the past, tax return preparers valued the options to report them on Form 706, the Federal Estate Tax Return, at the excess of the fair market value of the securities over the option price. This approach was based on Rev Rul 196, 1953-2 CB 178.

The Treasury regulations indicate there is another aspect of the option to be valued, called the option privilege. (Regulations Section 1.83-7(b)(3).) The option privilege represents the value of being able to participate in the future appreciation of the securities without having cash invested.

The IRS issued new guidelines for valuing compensatory stock options in Revenue Procedure 98-34. Under the Revenue Procedure, taxpayers may use a generally recognized option pricing model, such as the Black-Scholes model or an accepted version of the binomial model, when valuing compensating stock options for gift, estate or generation skipping transfer tax purposes.

Alternatively, you may find that hiring a business appraiser to value the options would result in a lower value, but this is an expensive alternative.

You should probably seek professional help relating to this matter. (Consider having the estate tax return prepared by a CPA or an attorney.)

The excess of the fair market value of a non-qualified stock option over the option price reported on an estate tax return is income with respect of a decedent, which means part of the estate tax may be deducted on the income tax return of the estate, trust or beneficiary when the option is exercised.

When the estate or beneficiary exercises the option, ordinary income is reported for the excess of the fair market value of the stock received over the option price (Regulations Section 1.83-1(d).)

Since the value of a non-qualified stock option reported on the estate tax return is income with respect of a decedent, it has no tax basis. (Tax basis = estate tax value income with respect of a decedent.)

The tax basis of the stock received is the option price paid in cash plus the ordinary income reported. The holding period starts on the date of exercise.

Good luck!

Mike Gray

For more information about non-qualified stock options, request our free report, Non-Qualified 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.

 

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