U.S. and Global Employment Tax Issues Around Equity Compensation Phoenix Chapter NASPP Meeting Kate...

U.S. and Global Employment Tax Issues Around Equity Compensation

Phoenix Chapter NASPP Meeting

Kate Forsyth, Deloitte Tax LLP

David Johnson, Deloitte Tax LLP

Jason Russell, Deloitte Tax LLP

June 11th, 2013

Copyright © 2012 Deloitte Development LLC. All rights reserved.2 U.S. and Global Employment Tax Issues Around Equity Compensation

Introduction

U.S. payroll deposit rules

Managing non-U.S. employment tax obligations

Business travelers

Global rewards updates

Questions and contact information

Agenda

U.S. Payroll Deposit Rules


• Typically, the date the compensation becomes taxable, will trigger the employment tax liability. The deposit date for that liability, will be based on the employer’s payroll deposit filing status. – Monthly deposit schedule — deposit due by the 15th day of the following

month.– Semi-weekly deposit schedule

• If the payday falls on a Wednesday, Thursday, and/or Friday, then deposit taxes by the following Wednesday.

• If the payday falls on a Saturday, Sunday, Monday and/or Tuesday, then deposit taxes by the following Friday

– Deposits are due on business days, if a due date falls on a Saturday, Sunday, or legal holiday, the deposit is considered timely if it is made on the following business day.

– There is a next day deposit requirement once the accrued payroll tax liability exceeds $100,000 (“one day deposit rule”)

What is the payroll deposit date?


• NQSOs: Exercise date (T+3)• SARs: Exercise date• RS: Vesting date (or transfer date if 83(b) election is made)• RSUs: Vesting for FICA and stock delivery for FIT

Typical liability dates


• On March 14, 2003, a Memorandum was issued by the IRS to audit examiners to provide guidelines surrounding assessment of employment tax penalties for NQSOs.

“It has been argued that the shares (or the value of the shares) are not available to the exerciser of the options until settlement date, and therefore no actual or constructive payment of wages takes place until that time.

There is generally only a three day delay between time of exercise and time of settlement resulting from such exercise. In fact, under 17 C.F.R. Sec. 240.15c6-1(a), the SEC generally established a maximum three day settlement period for broker- dealer trades. There is presently no specific published guidance relative to whether the date of exercise or date of settlement is the appropriate date for considering assertion of the penalty for failure to deposit employment taxes attributable to the exercise of nonqualified stock options.”

• Under this Field Directive, auditors “should not challenge the timeliness of deposits required under Treas. Reg. § 31.6302-1(c), if such deposits are made within one day of the settlement date, as long as such settlement date does not fall more than three days from date of exercise.”

Field audit memorandum


• Company has regular payroll on the 1st and 15th of the month. They are considered a semiweekly depositor for Federal income taxes.

• Monday, October 15th is their regular payroll and they had a tax liability of $50,000

• Wednesday, October 17th they had an employee settle NQSO’s with a tax liability of $110,000.

• Based on the next day deposit rule the $110,000 would be due on Thursday, October 18th.

• Based on the semiweekly deposit status and the $50,000 would be due on Friday, October 19th.

Timing example


• Underpayment penalty– 2% — One to five days late; – 5% — Six to 15 days late; and – 10% for more that 16 days late

• Weekends and holidays are included when calculating penalties

Penalties


• Company has regular payroll on the 1st and 15th of the month. They are considered a semiweekly depositor for Federal income taxes.

• Monday, October 15th is their regular payroll and they had a tax liability of $50,000.

• Wednesday, October 17th they had an employee settle NQSO’s with a tax liability of $110,000.

• Instead of making the $110,000 deposit on October 18th, they lump the amount together with the Thursday, November 1st liability and deposit a total of $160,000 on Friday, November 2nd.

• Under audit, the service would request the brokerage records and see the settlement date of October 17th.

• The service would amend the Schedule Bto show the correct liability of $110,000 on October 17th.

• The deposit of $110,000 should have been made on Thursday, October 18th.

• The deposit is 15 days late, and subject to penalty of 5%, or $5,500.

Penalty example


• The IRS uses a FIFO system to assign deposits, and will attribute a deposit to the most recent tax liability. Unfortunately, this can cause a cascading penalty.

• In Rev Proc 2001-58, the Service provides the following example to show how the FIFO methodology can create cascading penalties:– For the second calendar quarter of the year, B, a monthly employment tax depositor,

pays its employees on the first of every month. B normally makes deposits on the 25th (or next banking day thereafter) of each month in which the liability is incurred, instead of waiting until the 15th day of the following month. B pays its employees on April 1.B fails to make the deposit on April 25. For May, B pays its employees on May 1. On May 25 unaware of the underdeposit for April, B makes a deposit to cover its May liability. The IRS applies this deposit to the most recently ended deposit period — April — instead of the May liability as intended by B. This cycle of deposits continues until the end of the quarter. Instead of having a failure-to-deposit penalty only for April, B will be subject to a penalty for every month in the quarter. B can minimize cascading penalties and reduce the penalty amount by timely following the IRS’s procedures to designate May and June as the deposit periods to which the deposits are to be applied.

Penalties


• The IRS does allow a “safe-harbor” shortfall if the shortfall is no more then the greater of $100 or 2% of the amount due, so long as the original deposit is made timely, and the shortfall is made up by the ‘make-up date.’– Example: A is required to make a deposit of $1,000 on June 15 and is a semi-weekly depositor. A

makes a deposit of $900 on June 15 and would be required to make the additional $100 deposit by the first Wednesday or Friday occurring on our after July 15th. Because the shortfall is $100 andthey have made up the deposit by the make-up date, no penalties are assessed.

• Taxpayers can designate to which tax period they want a specific deposit applied within 90-days of receipt of a notice of penalty.

Penalty mitigation

Deposit period ending date Due date of deposit Date of deposit that service applies to deposit period and applicable penalty under section 6656

04/05/02 04/10/02 04/10/02 $ 0

04/12/02 04/17/02 06/26/02 $1,000

04/19/02 04/24/02 04/22/02 $0

04/26/02 05/01/02 04/29/02 $0

05/03/02 05/08/02 05/06/02 $0

05/10/02 05/15/02 05/13/02 $0

05/17/02 05/22/02 05/20/02 $0

05/24/02 05/30/02 05/27/02 $0

05/31/02 06/05/02 06/03/02 $0

06/07/02 06/12/02 06/10/02 $0

06/14/02 06/19/02 06/17/02 $0

06/21/02 06/26/02 06/24/02 $ 0

06/28/02 07/03/02 07/03/02 $ 0

TOTAL PENALTY $ 1,000

Managing non-U.S. employment tax obligations


• Timing of taxation varies between countries– Most countries tax at exercise– Some countries tax at grant, vest or sale– Exit and trailing tax considerations

• Amount subject to tax varies between countries – Even for those countries that tax stock options at exercise, there may be

differences in the statutory definition of fair market value• Italy — average price over the prior month• China/Taiwan — closing price on date of transaction• Malaysia — average of high and low on date of transaction

• Administrative infrastructure• Broker/administrator capabilities

Payroll compliance and equity compensation


• Income and social tax reporting and withholding requirements differ among various jurisdictions. The administrative burden can be minimized in some countries through plan design and decisions regarding the operation of the plan.

• Three “key ingredients” to determine an employer’s responsibility:1. Plan optimization opportunities/plan design

2. Corporate recharge

3. Administrative methodology

Canada/France/UK — Plan optimization affects conclusion

Brazil/Mexico — Recharge affects conclusion

Belgium — Administrative methodology affects conclusion

Corporate reporting and tax withholding


• ASC 718-10-25-18/Paragraph 35 of FAS 123(R) states that if the number of shares withheld exceeds the number of shares needed to meet the minimum statutory withholding rate, the entire award shall be classified as a liability.– Auditors may assert that this triggers liability accounting for the plan– The rule impacts awards settled in shares, which generally includes:

• Restricted stock• RSUs• Stock settled stock appreciation rights

• If an amount in excess of the minimum statutory requirement is withheld, the entire award may be classified as a liability.– The concept of minimum statutory requirement often does not exist outside the U.S.

and in most U.S. states– Withholding at the minimum statutory amount results in additional liability owed by

employee

Accounting for equity compensation andASC 718/FAS123(R)

* Stock options may be excluded for exercises settled in cash.


• RSU income is taxable, yet no cash is issued. How does a company address corporate withholding obligations?– Net-share-settlement?

• Deliver the shares net of taxes to the employee • Company pays the cash equivalent of those shares withheld to the tax

authorities• ASC 718/FAS123R obstacles (see later)• Increasingly popular to preserve share pool

• Sell-to-cover?– Shares are sold on the market to cover withholding taxes

• Payroll deduction or employee check?– Employee receives the gross shares and local payroll withholds taxes from

future income or collects personal check

Accounting for equity compensation andASC 718/FAS123(R) (cont.)


• How to address issue?– Determine appropriate withholding methodology

• No withholding at source• Withhold actual taxes due for each participant• Flat rate minimum withholding

– Obtain auditor approval that withholding methodology does not create adverse

accounting implications• Varying opinions from auditors on this issue

Accounting for equity compensation andASC 718/FAS123(R) (cont.)


Accounting for equity compensation andASC 718/FAS123(R)

Specific rate determined for each individual

The most accurate methodology but can be time consuming to administer for the HQ and local company as well as for the brokerage

Determination of withholding rate

Administrative burden

Flat rate determined for each country

Based on highest paid participant

Based on lowest paid participant

OR

Will likely trigger liability accounting and as such, is probably unacceptable to Finance

Will result in under withholding for many plan participants requiring some involvement by local payroll to collect shortfall

Individual rate

Flat rate• Pre-tax event

• Local payroll and corporate

• Post-tax event

• Local payroll

Business Travelers


Business travelers

Individuals traveling on business for periods of varying lengths of less than one year and often to multiple countries or states with the potential to be exposed to other jurisdiction’s tax regimes.

These employees are frequently not on the mobile employee “radar screen”. They are typically working in alternate locations on projects, visiting suppliers or customers, or attending business meetings. They are not a traditional “expatriate” or “assignee” tracked by Human Resources.

Compensation is typically delivered from the home country/ state employer and may include per diems and/or expense reimbursements for items such as travel, accommodation, meals, incidentals, etc.

They typically do not change their residency or tax home and in most cases, family members do not travel with the employee.

These employees are not usually covered by a relocation or assignment policy and there may or may not be a cross charge to the locality(ies).

Similar challenges may be faced by telecommuters and cross-state/cross-border commuters

Who are business travelers?

Permanent State to State transfers

Telecommuters

International Business Travelers

Cross-state / cross-border commuters

State to State Business Travelers


Why focus now? – Risks with business travel

Corporate tax nexus

Visibility from

immigration

Home employer reporting

Host individual

tax

Home individual

tax

Host employer reporting

Tax program for business travelers

Processes to efficiently andeffectively analyze tax risks

incorporates numerous perspectives

Employer Employee

Payroll, income and social tax • Host and home payroll reporting

and withholding requirements• Withholding compliance

obligations• Employer Social Security

obligations; not always in line with income tax requirements (e.g., income tax treaties)

• Incremental employee income and social tax costs (if equalized)

• Corporate tax - Nexus risks• Withholding waivers

Income and social tax• Incremental income and social

tax costs• Equalization and tax

reconciliations

Reputation• What would be the impact on the

Company’s reputation if non-compliance was made public?

• How would the Company's relationship with the tax authority be affected?

Tax filings• Tax ID registration/application • Individual income tax return

filing requirements to claim foreign tax credits, or treaty positions

Commercial• Were the costs of business travel

accurately estimated for budgeting purposes?

After-tax pay• Equalization• Responsible for own taxes

Labor law• Does the presence of business

travelers in another jurisdiction expose the Company to labor laws of that jurisdiction?

Employee experience• Positive or negative

experiences of process and travel to host jurisdiction

• Willingness for future deployment

Immigration• Ensuring the correct visas and

work permits are obtained

Immigration• Risks associated with entering

a jurisdiction on the wrong visa• Detention/deportation

Increased scrutinyCompliance

Increased audit risk

Increased scrutiny

Acceptable risk profile

Legislative updates

3

1

4 2


Challenges with equity

International

• Is there a treaty between home and host countries?

• What are the tax exemption requirements? Such as days of physical presence, cost charges.

• The “183 Day Rule” • Treaty protection

may not aliviate employer compliance obligations (e.g., tax withholding waivers in Canada and the UK)

Reporting and withholding

• Practical considerations

• When / how frequent do you withhold and report?

• Do you take credits at the withholding level?

• Current travel data• Tax equalization?• How do deminimis

policies apply to equity (where earnings period > 1 year; or where vest happens before policy is exceeded)

US Domestic

• Each state has different rules

• Day 1 (CA)• Difference between

salary and equity (NY)

• Does not recognize travelers (IL)

• Reverse credits (CA and OR)

• Equity sourcing• Recognition of treaty

Equity team should be part of the cross functional team that addresses any business traveler problem – equity is especially complicated and policy design often does not consider equity


Business Traveler Approach

Key observations

• The majority of large market cap companies have a 2013 initiative to ensure that they can reasonably meet their compliance requirements with respect to business travelers, where they had not previously addressed this risk.

• Many companies who have historically tried to address business travelers with varying degrees of success.

• Companies that address their business traveler compliance obligations:

usually apply business thresholds such as de-minimis days tax equalize business travel income, including equity obtain travel data from a variety of sources such as travel expenses, booked

travel and self identification have not been able to address their compliance obligations through payroll

reporting and remittance. For these companies, it is common practice that employee tax return support is provided to mitigate risks.

Global Rewards Updates


• Background: Many multi-national companies are required to comply with a number of registration and reporting requirements with respect to equity awards in China such as State Administration of Foreign Exchange (SAFE) registration and Tax registration.

With increased volumes of equity compensation, the tax and SAFE authorities have grown the level of scrutiny of the registration process.

• SAFE Registration: On 20 February 2012, SAFE issued Circular 7 to supersede Circular 78 which emphasizes the employer’s obligation to comply with registration requirements and signals the authorities’ continual efforts to strengthen reporting and administration in this area. Various provinces have started to implemented different steps to streamline as per Circular 7.• Beijing is requesting for re-registration of the already registered existing plan.• All provinces are reviewing the registered plans and strict follow-ups to get

more information on the equity plans.• Chances of penalties for non-compliance of SAFE process have increased

significantly owing to formal guidelines issued to local SAFE authorities.

25

China: Intensified SAFE and Tax Registration requirements of equity awards


• Tax Registration: All equity plans offered in China must be registered with the company’s in-charge tax bureau(s) prior to the roll out of the equity plan. Failure to fulfil this regulatory requirement would result in penalties to the company and further disqualify participants from adopting the preferential tax treatment on equity gains.• Beijing tax bureaus have started adopting formal procedures under which a

list of documents are requested for review and approval purposes.• Some Beijing tax bureaus have also set for on-site review with

company/authorized agent to conduct a thorough review of the documents submitted in order to complete registration.

• Shanghai province have been seeing increasing number of penalty instances for failure or untimely registration of plans.

• Provincial tax bureaus have also set a standardized processes for tax registration and on-going reporting requirements.

• Conclusion: Any company offering equity plans in China are required to evaluate the potential risks of unregistered plans or monitor the need for re-registering plans and adhere to increased compliance.

26

China: Intensified SAFE and Tax RegistrationRequirements of equity award


• Background: On 29 December 2012, France’s Constitutional Court issued its decision on measures in the 2013 Finance Law, concluding that all the measures affecting companies were valid, but striking down some controversial provisions relating to individuals.

• 75% Tax: The Constitutional Court struck down the 75% tax on professional income over EUR 1 million. Re-proposal of a similar tax for 2013 income may occur.

• Impact to French tax qualified equity awards (employees): Flat preferential rates will continue to apply for awards granted before September 28, 2012. New income and social surtax rates will apply to awards granted on or after September 28, 2012:

27

French 2013 Finance Bill – Impacts to Taxation of Equity Awards and Capital Gains

Changes implied by the Financial Act for 2013

Qualified Awards (Granted as of 9-28-2012) - Taxes Paid at Sale Non-Qualified - Taxes Paid at Taxable Event

Income Tax Up to 45% Income Tax Up to 45%

Additional Social Taxes

8% (of which 5.1% will be

deductible)Employee social contribution from 23% to 8.85%

(rate decreases as earnings increase)

Employee social contribution 10% (sales after Aug. 17,2012)

High Income Contribution 3% or 4% High income contribution 3% or 4%


• Impact to French tax qualified equity awards (employer): Flat 30% social tax rate will continue to apply at the time of grant.

• Impact on capital gains:- Capital gains on shares: Taxed at the progressive income tax rates, up to 45%.

- High income contribution of 3% or 4%.

- Taper relief on taxable capital gain will be available depending on the holding period of the shares prior to sale:

• 20% for shares held between two and four years

• 30% for shares held from four to six years

• 40% for shares held during more than six years.

- Social surtaxes of 15.5% remain applicable on the full capital gain (5.1% is deductible).

28

French 2013 Finance Bill – Impacts to Taxation of Equity Awards and Capital Gains


• Background: On 14 December 2012, Irish Revenue issued official guidance on how RSUs should be treated for Irish tax purposes in cross-border situations.

• Key considerations:

• 100% if resident in Ireland at taxable event; and

• Not taxable if non-resident at taxable event.

• Double tax relief will be allowed when employees file resident returns at yearend.

• Conditions for the “real-time” foreign tax credit: To apply the foreign tax credit mechanism through payroll, the conditions are as follows:

‾ Ireland has a tax treaty with the country where there is tax withholding due

‾ Employee’s annual personal income tax return must be filed by 31st March of following year;

‾ The employer must provide information reporting to Revenue by 31st March of the following tax year; and

‾ Evidence of deduction of foreign income tax at source (which must be nonrefundable) must be available for production if requested by the Revenue.

Note: Where the conditions are not met, Revenue will make an estimate of the full amounts due and the standard interest and penalty provisions will apply.

29

Ireland: Restricted Stock Units (RSUs) – Cross Border Taxation


• Action steps: • Employers should consider whether to administer the “real-time” foreign tax

credit relief at the payroll withholding/reporting stage for Ireland inbound employees.

• Setup an internal process to apply the relief and work with payroll provider to ensure adjustments are properly reported through payroll.

30

Ireland: Restricted Stock Units (RSUs) – Cross Border Taxation


• Various Proposals by the Office of Tax Simplification:

• Employer reporting and withholding: ‾ Form 42 should be released at the start of the tax year to enable employers

to complete the form throughout the year rather than completing at once at the tax year end.

‾ Online filing of Form 42 should be introduced to reduce the administration burden. Form 42 should eventually be integrated into the real time information (RTI) reporting.

‾ PAYE withholding tax remittance date should be extended from 14 days to 60 days following the tax month end.

‾ PAYE arising from equity compensation should be removed from the section 222 charge if the tax is ‘made good’. Note: Currently, under section 222 ITEPA 2003, where the company does not recover the PAYE due on a notional payment such as options exercise within 90 days, the amount of PAYE due is treated as additional income for employee.

31

United Kingdom: Various New Proposals that could Impact Equity Compensation

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– Employer Reporting and Withholding: ‒ The OTS proposed online filing to replace existing paper-based annual return (Form-

42) and share plan reporting to be integrated to real-time information (RTI) reporting where payroll withholding applies. HMRC will proceed with implementing online filing of Form-42 to implement in 2014 and will look into intelligent filing recommendations.

‒ Integration of share plan reporting into RTI would be looked into once Form-42 online implementation is completed.

‾ The government will implement the OTS recommendation to extend the deadline for tax withheld to be paid to HMRC once the RTI is fully implemented. OTS recommends to extend withheld payment due date to 60 days following the month end of taxable event but no later than 31 May following the end of tax year.

‾ The government will consult on a modification to extend the due date to recover the applicable withholding amount from current 90 day to 6 July following the end of the tax year.

32

United Kingdom: Government’s response to the Office of Tax Simplification’s (OTS) proposed changes



• Background: ‾ The Her Majesty’s Revenue and Customs (HMRC) require companies to report any

employee-related share plan transactions during the UK tax-year (April 6 – April 5) on Form-42 by July 6 following the tax year end default of which may attract penalty.

• Relevant to Non-UK companies & Penalties: Most non-UK companies are unaware of this obligations even though they are required to report share plan details provided to UK employees.‾ Late filing of Form-42 attracts an initial penalty of £300 per reportable event and

further penalties can be up to £60 per day. ‾ Penalties for incorrect return can also up to £3,000.‾ Late or incorrect submissions affects the tax risk profile of the company; HMRC are

more likely to focus their attention on those companies that miss filing reportable event deadlines or make errors in their reporting.

• Reportable events: The reportable events include wide spectrum of events such as grant and exercise of stock options, the award and vesting of restricted stock units and even the acquisition of stock at market value. Any of these activities may trigger the need to submit a Form-42

33

United Kingdom: Form 42 submission: July 6, 2013



– Conclusion: A Form-42 reporting obligation for non-UK parent companies can arise where stock awards are held by:

‒ UK employees in a non-UK-based parent company.‒ Non-UK employees in respect of duties or workdays in the UK‒ Internationally mobile employees

This is an area of focus for HMRC and non-UK companies should submit a Form-42 through a responsible person such as an officer of the UK employer or the parent company who signs the submission.

34

United Kingdom: Form 42 submission: July 6, 2013


Questions?


Kate ForsythGlobal Employer ServicesDeloitte Tax LLP

Tel/Direct: [email protected]

Deloitte contact information

David JohnsonGlobal Employer ServicesDeloitte Tax LLP

Tel/Direct: [email protected]

Jason RussellGlobal Employer ServicesDeloitte Tax LLP

Tel/Direct: 415-783-5376 [email protected]


This presentation contains general information only and Deloitte is not, by means of this presentation, rendering accounting, business, financial, investment, legal, tax, or other professional advice or services. This presentation is not a substitute for such professional advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified professional advisor. Deloitte shall not be responsible for any loss sustained by any person who relies on this presentation.

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U.S. and Global Employment Tax Issues Around Equity Compensation Phoenix Chapter NASPP Meeting Kate...

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