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Financial Planning: High Net Worth

NEW! How does tax reform affect stock compensation?

In effect from the start of 2018, the Tax Cuts & Jobs Act has provisions that directly and indirectly affect stock compensation, whether in personal financial planning or in company stock plan administration. (See an interactive version of the legislation from the law firm Davis Polk.)

The core tax treatment of stock compensation has not changed. Below are the provisions that affect in some way the individual taxation of stock compensation. (The individual tax rates and AMT changes end after 2025, reverting to the current rates unless extended.)

Provisions Affecting Stock Compensation

1. Changes in the rates of individual income tax. The Tax Cuts & Jobs Act keeps seven tax brackets, reducing the rates and changing the income thresholds that apply. The new rates are 10%, 12%, 22%, 24%, 32%, 35%, and 37%, with the top bracket starting at $600,000 for joint filers ($500,000 for single filers). According to a statement from the IRS, new guidance about tax withholding will be issued in January, which could affect the amount of taxes coming from your paycheck as soon as February.

The flat supplemental rate of federal income tax withholding on stock compensation is based on the seven brackets. For amounts up to $1 million it is linked to the third-lowest rate (22%). For amounts over $1 million it is linked to the highest rate (37%). The 22% rate of withholding may not cover the actual taxes you will owe (the 24% tax bracket starts with yearly income over $165,000 for joint filers and over $82,500 for singles), so you need to know the tax bracket for your total income and assess the need to put money aside or pay estimated taxes.

2. Changes in the calculation of the alternative minimum tax (AMT). The income spread at incentive stock options (ISOs) exercise can trigger the AMT, which warrants complex tax planning. While the AMT or how it applies to ISOs is not repealed, below are the new numbers in the AMT calculation (to be adjusted annually for inflation).

  • The 2018 AMT income exemption amount rises to $70,300 (from 54,300) for single filers and to $109,400 (from 84,500) for married joint filers.
  • The income where this AMT income exemption starts to phase out in 2018 is substantially adjusted upward to begin at $500,000 for individuals (from $120,700) and $1,000,000 (from $160,900) for married couples.

These higher AMT income exemption amounts, and the much higher income point where the phaseout starts, make it much less likely that ISOs will trigger the AMT. With fewer employees at risk of triggering the AMT by exercising ISOs and holding the shares, companies may start to grant ISOs more frequently, given their potential tax advantages for plan participants.

What pays in part for this change in the AMT calculation is the $10,000 cap on the deduction for state and local income taxes and real-estate property taxes on tax returns. Given the odd way in which the AMT is calculated, those deductions may have triggered or added to your AMT in the past. Strangely enough, given that new cap, a taxpayer who has been paying the AMT may see less tax savings than they might otherwise expect to get from the AMT change.

3. New type of qualified stock grant for privately held companies. The final legislation adopted as one of its provisions a version of the Empowering Employees Through Stock Ownership Act. This provision lets an employee in a privately held company elect to defer taxes at option exercise or RSU vesting for up to five years as long as the company's equity awards meet certain conditions (the version of this provision that passed the House in 2016 allowed seven years). For details on the provision when it was part of the Empowering Employees Through Stock Ownership Act, see the coverage in the myStockOptions.com Blog.

4. No change in the capital gains rates (15% and 20%). A reduction in ordinary income rates would lower the difference between your income tax rate and your capital gains rate. This reduced differential might affect your tax-planning decisions, e.g. whether to hold shares at exercise, vesting, or purchase. While there is no change in these rates, the tax law creates a new income threshold for when the rate on long-term capital gains and qualified dividends goes from 15% to 20% ($479,000 for married joint filers and $425,800 for single taxpayers). That threshold is no longer similar to that of the top tax bracket.

Furthermore, while the Republican Congress did not seek to alter the capital gains rates themselves, they do still want to repeal the 3.8% Medicare surtax on investment income, including stock sales, that is paid by high-income taxpayers to fund Obamacare. The new tax law simply repeals the penalty for not buying health insurance.

5. Repeal of the performance-based exception to the Section 162(m) limit on deductible compensation. Publicly traded companies will no longer be able to deduct annual performance-based compensation (e.g. stock options, performance shares) in excess of $1 million for the CEO, CFO, and the top three highest-paid employees. For compensation paid under written plans existing as of November 2, 2017, an exemption applies as long as the plan is not modified. While that repeal does not affect financial planning, it further reduces the incentive for companies to favor one type of equity award over another.

What Could Have Been: Provisions Deleted During The Legislative Process

Two provisions that would have had a major impact are no longer a concern.

1. Cost basis of securities. The Senate bill sought to eliminate the ability to specifically identify any stock sold for the purposes of determining gains and losses, providing instead that stock will be considered to be sold on a "first in, first out" (FIFO) basis. The final bill does not have this provision.

2. Taxation of stock compensation at vesting. Under proposals initially made in both the House and the Senate bills but later dropped, stock and nonqualified deferred compensation (NQDC) would have become taxable once there was no longer a substantial risk of forfeiture.

Prospect Of Tax Reform Has Already Affected Tax Planning For Some

Given the tax changes for 2018, the general recommendation is to defer recognizing income, such as in exercising nonqualified stock options and selling appreciated company stock. That is meaningfully lowering government tax revenues. An article in The Washington Post reports that, according to federal data and the anecdotal experiences of tax advisors, wealthy taxpayers seem to be "postponing cashing out on investments and other financial decisions, hoping to pay less later if the White House and Congressional Republicans pass a huge reduction in tax rates" (see Americans Are Taking Their Sweet Time Paying Taxes, And The Government Is Running Out Of Cash, June 1, 2017).

Tax Brackets Matter

For the many upper-middle-class employees and managers who receive stock compensation, there is an important issue to follow with tax reform. That issue involves the taxable income that would fit into the new tax brackets and whether in 2018 you will be in a higher or lower bracket. At year-end, this can affect your decision about whether to defer income, such as waiting until next year to exercise nonqualified stock options (see this website's section on year-end planning).

Additional Resources For More Details

For more on the tax-reform legislation, see commentaries from the following sources.

On the final legislation:

Impact on stock and executive compensation:

On tax planning for nonqualified deferred compensation (NQDC):

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