Should my ISOs be treated like NQSOs after retirement?
January 24, 2005
Subject: ISO’s and leaving the company
Date: Thu, 30 Dec 2004
I retired in 2002 and was allowed to keep some ISOs expiring in 2008. I exercised them in 2004. The company is taking the position that the gain is ordinary income, subject to social security, Medicare, etc. and requesting payment of 25% of the gain as withholding. They will then send me a W-2 form. Do you agree with this position?
Thank you for your help,
Date: Fri, 07 Jan 2005
Yes. When an employee is allowed to keep ISOs after leaving an employer, they are converted to non-qualified stock options.
For income tax withholding, under Treasury regulations section 31.3401(a)-1(a)(5), “Remuneration for services, unless such remuneration is specifically excepted by the statute, constitutes wages even though at the time paid the relationship of employer and employee no longer exists between the person in whose employ the services were performed and the individual who performed them.”
A similar rule applies under Treasury Regulations Sections 31.3121(a)-1(i) and 31.3306(b)-1(i) for FICA withholding and FUTA taxes.
There is an exception when an option is exercised after the year of death of a deceased employee. (Revenue Ruling 86-109.)
I do not work extensively in the area of payroll tax reporting. Employers should be seeking their own counsel in this area.