Mark Spitz - Page 9

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          of the stock is characterized as capital gain if the holding                
          requirements under section 422(a)(1) are satisfied.  Secs. 1221             
          and 1222; sec. 14a.422A-1, Q&A-1, Temporary Income Tax Regs.,               
          supra.                                                                      
               In order to qualify for capital gain treatment, the                    
          taxpayer must hold the stock he acquires by exercising an ISO for           
          a period ending no earlier than 2 years after the grant date or 1           
          year after the transfer of the stock to him.  Sec. 422(a)(1).               
          Selling a share of stock before the holding period expires                  
          results in a disqualifying disposition.  Sec. 421(b). If a                  
          disposition is disqualified, recognized gain on the sale of the             
          stock is characterized as ordinary income up to the fair market             
          value (FMV) of the stock at the date the option is exercised, and           
          the balance, if any, is treated as capital gain.8  Sec. 421(b);             
          sec. 14a.422A-1, Q&A-2(a), Temporary Income Tax Regs., supra.9              


               8 The gain treated as ordinary income in a disqualifying               
          disposition is the lesser of:  (1) The fair market value of the             
          stock on the date of exercise minus the option price; or (2) the            
          amount realized on disposition minus the option price.  Sec.                
          14a.422A-1, Q&A-2(a), Temporary Income Tax Regs., 46 Fed. Reg.              
          61840 (Dec. 21, 1981).                                                      
               9  New regulations under sec. 422 became effective Aug. 3,             
          2004, but are not applicable to the years at issue.  Sec. 1.422-            
          5(f), Income Tax Regs.                                                      










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