Walter and Susan Moore - Page 19




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          of the option but at the time, pursuant to the employee’s                   
          exercise of the option, the shares have been transferred to, and            
          become substantially vested in, the employee.  See sec. 83(a),              
          (e)(3); Tanner v. Commissioner, supra at 242; sec. 1.83-1(a)(1),            
          Income Tax Regs.  Shares become substantially vested in the                 
          employee when the shares are either transferable or not subject             
          to a substantial risk of forfeiture.  See United States v. Tuff,            
          supra at 1252; Racine v. Commissioner, T.C. Memo. 2006-162;                 
          Facq v. Commissioner, T.C. Memo. 2006-111; sec. 1.83-3(b), Income           
          Tax Regs.                                                                   
               Section 83 does not apply to a “statutory” stock option;               
          i.e., an “incentive stock option” (ISO) within the meaning of               
          section 422(b), that meets the requirements of sections 421                 
          through 424.  As relevant herein, section 421(a) provides that if           
          the requirements of section 422(a) are met,4 a taxpayer does not            
          recognize income either upon the granting to the taxpayer of an             
          ISO or when the taxpayer receives stock upon the ISO’s exercise.            
          Recognition of income is deferred until disposition of the stock.           
          Sec. 421(a).  Section 422(b) defines an ISO as a stock option               
          granted to an individual for any reason connected to his or her             
          employment, if granted by a corporate employer (or its parent or            


               4 Sec. 422(a) requires in relevant part that the option                
          holder be an employee of the company granting the option at all             
          times from the granting of the option until 3 months before the             
          date of exercise.                                                           





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