What constitutes transferable stock in ISO AMT calculations?
February 14, 2000
Subject: What constitutes “transferable” stock in ISO AMT calculation?
Date: 2 Jan 2000
This question is in regard to exercising ISOs.
AMT must be calculated on the exercise of an ISO “when your rights in the aquired stock first become transferable, or when these rights are no longer subject to a substantial risk of forfeiture.”
If a 100% vested stock option is exercised in 8/99, but on the back of the stock certificate is a restriction, saying that the shares are subject to a lock-up agreement, and cannot be sold until 1/00, then does AMT need to be calculated in 1999, based on the 8/99 exercise date? Or is it calculated in 2000, based on the expiration of the lock-up agreement?
Date: 19 Jan 2000
According to Internal Revenue Code Section 83(a), the transaction is treated as completed when the rights of the taxpayer become transferable OR not subject to a substantial risk of forfeiture.
There is a special exception at Section 83(c)(3) when a sale of the property at a profit could subject a person to being sued under section 16(b) of the Securities Exchange Act of 1934. When this applies, the stock is considered to be non-transferable AND subject to a substantial risk of forfeiture.
When your stock is vested, the stock is not subject to a substantial risk of forfeiture.
Therefore, unless you are a corporate “insider” subject to Section 16(b) restrictions, your AMT is based on the 8/99 exercise date. The “lock out” does not postpone the tax results of the exercise.