First service backdating stock options

The Directive instructs agents to identify the existence of any backdating issues at the beginning of any corporate examination. The Directive states that the backdating issue should be identified early in the audit process so as to "ensure proper statute [of limitations] procedures are in place to address this issue at the individual level." Thus, the Directive signals that the IRS intends to use its audits of corporate taxpayers as a tool for the timely identification of individuals who have benefited from backdating so that the IRS can pursue separate audits of such individuals before any relevant statute of limitations lapse.

There are three principal tax issues associated with the backdating issue.

In order to qualify for this exception, the option in question must have an exercise price that equals or exceeds the per share value on the grant date (other requirements also apply). The second tax consideration identified in the Directive focuses on whether an option qualifies as an Incentive Stock Option ("ISO") pursuant to § 422.

Backdating of an option may prevent it from qualifying for the exception set forth in Treas. Backdating of a stock option might prevent such option from qualifying as an ISO as § 422(b)(4) requires that the option's exercise price be not less than the fair market value of the stock at the time such option was granted.

Apple has not publicly released its investigation report.Tier I Issues are considered matters of "high strategic importance," The Directive has important implications for both companies and individuals.The IRS's interest in the tax implications of backdated options is not new.Regulators said the action allowed Apple to avoid million in expenses.Late last year, Apple said that Jobs helped pick some favorable dates but that he "did not appreciate the accounting implications." Explaining Anderson's motive for issuing the statement, his lawyer Jerome Roth said: "We thought it was important that the world understand what we believe occurred here." Roth said his client, a prominent Silicon Valley figure and a managing director at the venture capital firm Elevation Partners, will not be barred from serving as a public-company officer or board member under the settlement, in which Anderson did not admit wrongdoing.

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