Depending upon the tax treatment of stock options, they can be classified as either qualified stock options or non-qualified stock options. Qualified stock options are also called Incentive Stock Options, or ISO.
Profits made from exercising qualified stock options (QSO) are taxed at the capital gains tax rate (typically 15%), which is lower than the rate at which ordinary income is taxed. Gains from non-qualified stock options (NQSO) are considered ordinary income and are therefore not eligible for the tax break. NQSOs may have higher taxes, but they also afford a lot more flexibility in terms of whom they can be granted to and how they may be exercised. Companies typically prefer to grant non-qualified stock options because they can deduct the cost incurred for NQSOs as an operating expense sooner.
More details about the differences, rules, and restrictions of qualified and non-qualified stock options are provided below along with example scenarios.
Non-qualified Stock Options
Qualified Stock Options
|Recipient||Can be issued to anyone, e.g., employees, vendors, board of directors||Can only be issued to employees|
|Waiting period||No restrictions. Options can be exercised at any time after they vest.||Must wait at least one year from the date QSOs are granted before exercising them.|
|Exercise Price||May have any exercise price||Exercise price must be at least equal to the fair market value (FMV) at time of grant. For 10%+ stockholders, exercise price must equal 110% or more of FMV at time of grant.|
|Tax consequences (recipient)||No tax at the time of grant. The recipient receives ordinary income (or loss) upon exercise, equal to the difference between the grant price and the FMV of the stock at date of exercise.||No tax at the time of grant or at exercise. Capital gain (or loss) tax upon sale of stock if employee holds stock for at least 1 year after exercising the option.|
|Tax consequences (company)||As long as the company fulfills withholding obligations, it can deduct the costs incurred as operating expense. This cost is equal to the ordinary income declared by the recipient.||No deductions available to the company.|
|Value of stock||No limit on the value of stock that can be received as a result of exercise||The aggregate fair market value (determined as of the grant date) of stock bought by exercising QSOs that are exercisable for the first time cannot exceed $ 100,000 in a calendar year.|
|Holding Period||No restrictions||Once options are exercised, the employee owns the stock. She must hold the stock for a minimum of one additional year before selling the shares. When the one year holding period has elapsed, the employee can sell the stock.|
|Transferable||May or may not be transferable||Must be nontransferable, and exercisable no more than 10 years from grant.|
How Stock Options Work
Stock options are often used by a company to compensate current employees and to entice potential hires. Employee-type stock options (but non-qualified) can also be offered to non-employees, like suppliers, consultants, lawyers, and promoters, for services rendered. Stock options are call options on the common stock of a company, i.e., contracts between a company and its employees that give employees the right to buy a specific number of the company’s shares at a fixed price within a certain period of time. Employees hope to profit from exercising these options in the future when the stock price is higher.
The date on which options are awarded is called the grant date. The fair market value of the stock on the grant date is called the grant price. If this price is low, and if the value of the stock rises in the future, the recipient can exercise the option (exercise her right to buy the stock at the grant price).
This is where qualified and non-qualified stock options differ. With NQSOs, the recipient can immediately sell the stock she acquires by exercising the option. This is a "cashless exercise", because the recipient simply pockets the difference between the market price and the grant price. She does not have to put up any cash of her own. But with qualified stock options, the recipient must acquire the shares and hold them for at least oneyear. This means paying cash to buy the stock at the grant price. It also means higher risk because the value of the stock may go down during the one-year holding period.
Rules for Qualified Stock Options (Incentive Stock Options)
The IRS and SEC have placed some restrictions on qualified stock options because of the favorable tax treatment they receive. These include:
- The recipient must wait for at least one year after the grant date before she can exercise the options.
- The recipient must wait for at least one year after the exercise date before she can sell the stock.
- Only employees of the company can be recipients of qualified stock options issued by the company.
- Options expire after 10 years.
- The exercise price must equal or exceed the fair market value of the underlying stock at the time of grant.
- For employees who own 10% or more of the company, the exercise price must be at least 110% of the fair market value and options expire in 5 years from the time of the grant.
- Options are non-transferable except by will or by the laws of descent. The option cannot be exercised by anyone other than the option holder.
- The aggregate fair market value (determined as of the grant date) of stock bought by exercising ISOs that are exercisable for the first time cannot exceed $100,000 in a calendar year. To the extent it does, such options are treated as non-qualified stock options.
Why do people use qualified stock options in spite of these restrictions? The reason is favorable tax treatment afforded to gains from QSOs.
No taxes are due when qualified stock options are exercised and shares are purchased at the grant price (even if the grant price is lower than the market value at the time of exercise). When stocks are eventually sold (after a holding period of at least 1 year), the gains are considered long-term capital gains, which are tax-free for people in the lower two tax brackets (10% and 15%) and are taxed at 15% for people who are in higher tax brackets for ordinary income.
If stocks are sold sooner than the 1-year hold, it's called a "disqualifying disposition,” which is just like an NQSO.
When non-qualified stock options are exercised, the gain is the difference between the market price (FMV or fair market value) on the date of exercise and the grant price. This gain is considered ordinary income and must be declared on the tax return for that year. Now if the recipient immediately sells the stock after exercising, there are no further tax considerations.
However, if the recipient holds the shares after exercising the options, the FMV on the exercise date becomes the purchase price or "cost basis" of the shares. Now if the shares are held for another year, any further gains are considered long-term capital gains. If shares are sold before that timeframe, any further gains (or losses) are counted towards ordinary income.
Let's say an employee was awarded stock options on January 1, 2010 when the stock price was $5. Let's also assume that the employee's income is $100,000 and she is in the 28% marginal tax rate bracket for ordinary income. Now let's take a look at the different scenarios and calculate the tax implications.
Scenario 1 is the classic qualified stock option. No income is declared when options are exercised and no taxes are due in 2011. Stocks are held for over 1 year after purchase so all gains are taxed at the long-term capital gains tax rate of 15%.
Scenario 2 is an example of a disqualifying disposition even though the plan was a qualified stock option plan. The shares were not held for one year after exercise, so the tax benefits of a qualified ISO are not realized.
Scenario 1 and Scenario 2 under the non-qualified category represent the same situation when the grant was under a non-qualified stock option plan. When the options are exercised (2011), ordinary income is declared equal to the difference between the FMV on exercise date ($15) and the grant price ($5). In Scenario 1, the shares are purchased and held for more than one year. So the further gains ($22 - $15) are considered long term capital gains. In Scenario 2, shares are not held for more than one year. So the further gains are also considered ordinary income. Finally, scenario 3 is a special case of scenario 2 where the shares are sold immediately after they are acquired. This is a "cashless exercise" of the stock options and the entire profit is considered ordinary income.