Guide to RSA RSU 83 b election: Maximizing Employee Stock Benefits

Casey Fenton


September 17, 2023

Are you an employer looking to reward your employees with company stock or considering implementing an equity compensation plan? If so, it's crucial to understand the intricacies of the 83 b election and restricted stock to help them maximize their financial gains.

Hence, in this comprehensive guide, we'll explore the ins and outs of Section 83 b election and restricted stock, ensuring you have a firm grasp on their implications for both you and your employees.

What is the 83 b election?

In simple terms, Section 83 b election refers to a provision in the Internal Revenue Code that allows employees to alter the tax treatment of a restricted stock award

When an employee receives restricted stock, they typically face income tax consequences as the restrictions on the stock lapse. However, by making this election, the employee can choose to recognize the taxable income at the grant date rather than when the restrictions lapse.

When Does This Tax Election Apply?

Section 83 b election comes into play when an employee is granted restricted stock that is subject to a substantial risk of forfeiture. By making this tax election within 30 days of the grant date, employees can potentially benefit from paying ordinary income tax upfront, instead of waiting until the stock vests. This early taxation can be advantageous when the stock's fair market value at the grant date is lower than its expected future value.

How Does It Affect the Taxation of Restricted Company Stock?

Now that we understand what Section 83 b election is, let's delve into its impact on the taxation of restricted company stock. Without this tax election, the employee would owe ordinary income tax on the entire value of the stock when it vests, based on the fair market value at that time. However, if the tax election is made, the taxable income is determined using the fair market value at the grant date, potentially resulting in a lower tax liability.

Here's an example to illustrate this better: Let's say an employee receives 1,000 shares of restricted stock with a grant date fair market value of $10 per share. Without the Section 83 b election, the employee would pay ordinary income tax on the value of the stock when it vests. If the stock's fair market value at vesting is $15 per share, the employee would owe taxes on the $15,000 ($15 x 1,000 shares). However, if the employee made the tax election, they would pay income tax upfront based on the $10,000 ($10 x 1,000 shares), potentially resulting in a lower tax liability.

It's crucial to note that while the 83 b election can minimize the upfront ordinary income tax, it doesn't eliminate the tax obligation altogether. The employee will still be liable for capital gains tax when they eventually sell the stock, subject to the capital gains rate applicable at that time.

When is This Tax Election Not Applicable?

The 83 b election is not applicable to all situations involving restricted stock. For instance, it cannot be used with restricted stock units (RSUs), as RSUs are taxed differently. RSUs represent a promise to deliver company stock in the future, typically upon the satisfaction of certain conditions such as a specified vesting period. Unlike restricted stock, RSUs do not qualify for this tax election since they are not technically considered ownership of the stock until the delivery occurs upon vesting.

Furthermore, it's important to note that this tax election cannot be applied to already vested shares. It must be made within 30 days of the grant date when the restrictions are still in place. Once the vesting timeframe has passed, the opportunity to make this tax election is lost.

Comparison Between RSA RSU 83 b Election

When it comes to choosing between a restricted stock award (RSA) and a restricted stock unit (RSU), it's important to consider the tax implications for both employers and employees. While restricted stock awards (RSAs) have their merits, restricted stock units (RSUs) often offer more favorable tax treatment. Let's explore why RSUs are often considered superior to RSAs in terms of tax consequences.

RSUs: No Ordinary Income Tax Upfront

One significant advantage of restricted stock units (RSUs) is that they do not require employees to immediately pay ordinary income tax. Unlike restricted stock awards (RSAs), RSUs are not considered ownership of the stock until the delivery occurs upon vesting. As a result, employees are not subject to immediate taxation upon grant, which can be beneficial from a cash flow perspective.

Long Term Capital Gains Tax

Restricted stock units (RSUs) trigger taxable events at the time of vesting. At that point, employees are taxed on the fair market value (FMV) of the shares received. However, this can be advantageous because it allows employees to postpone the tax payment until they actually receive the stock. Furthermore, RSUs provide employees with the flexibility to choose when to sell the shares and potentially take advantage of a more favorable long term capital gains tax bracket.

Restricted Stock Award: Pay Ordinary Income Tax at Grant Date

On the other hand, the restricted stock award (RSA) requires employees to pay income tax on the value of the shares at the time of grant. This upfront taxation can be burdensome, particularly if the stock's value increases significantly over time. Moreover, if the employee decides to sell the vested shares, they may be subject to additional tax for capital gains, depending on the appreciation in value from the grant date to the sale date.

By offering restricted stock units (RSUs) instead of restricted stock awards (RSAs), employers can provide their employees with greater tax flexibility and potentially lower tax liabilities. Employees have the opportunity to postpone tax payment until the shares vested, potentially taking advantage of a more favorable tax rate. This can be especially advantageous if the stock's value is expected to rise significantly during the vesting period.

It's worth noting that restricted stock units (RSUs) still have tax ramifications that need to be considered. Employees must be aware of the tax purposes associated with the sale of RSU shares and any applicable capital gains tax rate. Additionally, employers should ensure they comply with the regulatory and tax withholding obligation and accurately report RSU grants and vesting events.

While RSAs have their merits, RSUs generally offer more favorable tax implications for employees. The ability to only pay tax until the shares vest and potentially take advantage of a long term capital gains tax rate can be highly advantageous. Employers should consider these factors when designing their company’s plan for equity sharing and carefully weigh the potential benefits of RSUs against the upfront tax burden associated with RSAs.

A Situational Example

To better understand the potential benefits of the 83 b election, let's consider a scenario. Imagine you run a startup and want to reward a key employee, Alice, with 1,000 shares of restricted stock. The stock's fair market value at the time of granting is $5 per share. Alice anticipates that the stock's value will increase substantially over time.

If Alice chooses to make an 83 b election within 30 days of the grant date, she would pay taxes on the $5,000 total value of the shares upfront. Let's assume her income tax rate is 32%. Therefore, she would owe $1,600 in total taxes on the date when the company grants the stocks.

Now, fast forward a few years when the restrictions on the stock have lapsed, and the share price has skyrocketed to $50 per share. Alice decides to sell her company shares. Thanks to this tax election, she would only owe capital gains tax on the appreciation in value from $5 to $50 per share, resulting in potential long term capital gains tax rates instead of the ordinary income tax rate.

Restricted Stock With and Without the Election

To better understand the impact of the 83 b election, let's compare restricted stock with and without this tax election. Without 83 b, the employee pays tax as regular income on the value of the stock at the time of vesting, based on the fair market value then. This can result in a higher tax liability if the share price has appreciated significantly, which does not seem to be a huge trade-off considering RSUs can help postpone payment until they vest and the company shares are delivered.

Restricted Stock Award with 83 b Election

Meanwhile, with the 83 b election, the employee pays tax on ordinary income upfront based on the FMV at the award date. This can be advantageous if the stock price is expected to rise over time. By preferring to pay income tax at the award date, the employee may have a lower total tax bill when compared to paying taxes at the vesting date.

However, it's important to consult a tax advisor to assess the specific tax obligations based on individual circumstances. Tax rate, the employee's tax bracket, and the expected appreciation of the stock should all be considered when evaluating the potential benefits of this tax election.

Effect on Vesting and Fair Market Value

When the 83 b election is made, it does not impact the vesting schedule or the conditions that must be met for the restrictions to lapse. The tax election only affects the timing and amount of taxable income recognized by the employee.

For example, let's say an employee is granted 1,000 shares of restricted stock with a vesting period of four years. If the employee makes the tax election, they will owe ordinary income tax based on the FMV of the stock at the time the company grants it, even if the stock price declines during the vesting period. Conversely, if the stock price increases, the employee will benefit from a potentially lower capital gains tax bracket when they eventually sell the stock with a capital gain.

It's important to obtain a reliable valuation of the stock at the time of grant to ensure accurate tax reporting. This valuation will be crucial in determining the taxable income when the tax election is made.

Checklist of Tax Considerations and Implications involving the 83 b election

Before implementing the tax election and restricted stock in your equity compensation plan, consider the following checklist of tax considerations and implications:

1. Understand the requirements and limitations of the tax election and ensure your company's stock plan, as well as the grant agreement, allows for it.

2. Educate employees about the tax election and its potential benefits, emphasizing the importance of timely decision-making.

3. Consult with tax professionals to ensure accurate valuation and tax reporting.

4. Discuss potential risks and drawbacks of the tax election, such as falling share prices, with employees.

5. Consider the financial goals and circumstances of your individual employees when determining the appropriateness of the tax election.

6. Clearly communicate the potential tax implications to employees, helping them avoid surprises when filing a tax return.

7. Stay informed about changes in tax laws that may impact the tax election and equity compensation plans.

Should You Opt for RSA 83(b) Election?

Understanding the 83 b election and restricted stock is essential for employers seeking to implement effective equity compensation plans. By grasping the implications and benefits of the 83 b election, you can navigate the complexities of taxation and make informed decisions that align with both your company's and employees' financial goals.

Remember, the 83 b election provides an opportunity to pay ordinary income tax immediately and potentially reduce the tax burden wheen the stock eventually vests. However, it's crucial to consult with tax professionals or an investment advisor and consider individual circumstances to fully comprehend the implications and benefits of the 83 b election and ensure compliance with the Internal Revenue Service (IRS) and the guidelines prescribed in the Revenue Code.

Equity compensation can be a powerful tool for attracting and retaining talent, and by comprehending the nuances of the 83 b election and restricted stock, you can harness its potential to create a mutually beneficial arrangement for both your company and employees.

Alternatively, you may simply opt for RSU compensation plans, as these allow a more flexible tax treatment that can help your employees manage their cash flow more effectively. They could also benefit from a more favorable long term capital gains tax rate when they eventually sell the shares.

Moreover, RSUs offer employees protection against falling share prices. With RSAs, if the stock price falls after the award date, employees still bear the tax liability associated with the higher fair market value at the time of grant. RSUs, however, allow employees to avoid this potential tax hit and mitigate their risk in the event of a stock price decrease. 

Want to make the switch? Let Upstock take care of your equity compensation needs! Send us a message to see how we help share the ownership culture through our innovative RSU plans.

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Casey Fenton

Founder, Upstock & Couchsurfing, AI and Equity Innovator

Casey Fenton, the founder of Upstock & Couchsurfing and an AI and equity innovator, has revolutionized how we perceive and implement equity in the workplace. His foresight in creating platforms that not only connect people but also align their interests towards communal and corporate prosperity has established him as a pivotal figure in technology and community building. Casey speaks worldwide on topics including ownership mindset, worker equity, With Upstock and Couchsurfing, he has demonstrated an unparalleled expertise in harnessing technology for the betterment of community interaction and organizational benefits.

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