409A Nonqualified Deferred Compensation Plans.
More In Retirement Plans.
Section 409A applies to compensation that workers earn in one year, but that is paid in a future year. This is referred to as nonqualified deferred compensation. This is different from deferred compensation in the form of elective deferrals to qualified plans (such as a 401(k) plan) or to a 403(b) or 457(b) plan.
How does coverage under Section 409A affect an employee’s taxes?
If deferred compensation meets the requirements of Section 409A, then there is no effect on the employee’s taxes. The compensation is taxed in the same manner as it would be taxed if it were not covered by Section 409A. If the arrangement does not meet the requirements of Section 409A, the compensation is subject to certain additional taxes, including a 20% additional income tax. Section 409A has no effect on FICA (Social Security and Medicare) tax.
How does Section 409A apply to the 10 and 12-month pay election?
At issue is how the 2004 law change applies to people who have compensation deferred from one year to a future year. Under the new law, when teachers and other employees are compensated on a 12-month pay period in lieu of the 9 or 10-month actual work period, they are deferring part of their income from one year to the next. For instance, a teacher who is paid over a 12-month period, running from August of one year through July of the next year, rather than over the August to May school year, a 10-month period, falls under this law.
Does Section 409A require that an employee be provided an election?
No, Section 409A does not require that an employee be provided any election regarding how the employee is paid. For example, a school district may provide that all teachers will have their pay spread over 12 months, without providing any election to the teachers. In that case, the rules under Section 409A would not apply and no additional taxes would be imposed.
What was the effect of Notice 2008-62 for most public school employees?
Released on July 3, 2008, the Treasury Department and IRS issued Interim Guidance with Notice 2008-62. If the criteria in the Notice is met, it is expected that regulations under Sections 457(f) and 409A would not apply to arrangements of electing 12-months over 10-months of pay.
What if the criteria in Notice 2008-62 are not met?
On August 7, 2007, the IRS established assistance through Frequently Asked Questions on Section 409A and Deferred Compensation which provides guidance on how to establish the deferred election within the provisions of Section 409A.
Resources for IRC Section 409A:
Notice 2008-62, Interim Guidance on 10 vs. 12-month Pay Period.
IR-2007-142, August 7, 2007, New Rule Will Not Affect Teacher Salaries in Upcoming School Year.
Notice 2007-86, Delayed Effective Date of Section 409A Requirements.

Qualified vs. Non-qualified Stock Options.
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.
Comparison chart.
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.
Tax Treatment.
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.

Irs regulations non qualified stock options

This material from the Income Tax Regulations is being maintained as part of the Pillsbury Winthrop Shaw Pittman LLP Tax Page, a demonstration World Wide Web project. Comments are welcome on the presentation of this material.
Taxation of nonqualified stock options.
(a) In general . If there is granted to an employee or independent contractor (or beneficiary thereof) in connection with the performance of services, an option to which section 421 (relating generally to certain qualified and other options) does not apply, section 83(a) shall apply to such grant if the option has a readily ascertainable fair market value (determined in accordance with paragraph (b) of this section) at the time the option is granted. The person who performed such services realizes compensation upon such grant at the time and in the amount determined under section 83(a). If section 83(a) does not apply to the grant of such an option because the option does not have a readily ascertainable fair market value at the time of grant, sections 83(a) and 83(b) shall apply at the time the option is exercised or otherwise disposed of, even though the fair market value of such option may have become readily ascertainable before such time. If the option is exercised, sections 83(a) and 83(b) apply to the transfer of property pursuant to such exercise, and the employee or independent contractor realizes compensation upon such transfer at the time and in the amount determined under section 83(a) or 83(b). If the option is sold or otherwise disposed of in an arm's length transaction, sections 83(a) and 83(b) apply to the transfer of money or other property received in the same manner as sections 83(a) and 83(b) would have applied to the transfer of property pursuant to an exercise of the option.
(b) Readily ascertainable defined —
(1) Actively traded on an established market . Options have a value at the time they are granted, but that value is ordinarily not readily ascertainable unless the option is actively traded on an established market. If an option is actively traded on an established market, the fair market value of such option is readily ascertainable for purposes of this section by applying the rules of valuation set forth in § 20.2031-2.
(2) Not actively traded on an established market . When an option is not actively traded on an established market, it does not have a readily ascertainable fair market value unless its fair market value can otherwise be measured with reasonable accuracy. For purposes of this section, if an option is not actively traded on an established market, the option does not have a readily ascertainable fair market value when granted unless the taxpayer can show that all of the following conditions exist:
(i) The option is transferable by the optionee;
(ii) The option is exerciseable immediately in full by the optionee;
(iii) The option or the property subject to the option is not subject to any restriction or condition (other than a lien or other condition to secure the payment of the purchase price) which has a significant effect upon the fair market value of the option; and.
(iv) The fair market value of the option privilege is readily ascertainable in accordance with paragraph (b)(3) of this section.
(3) Option privilege . The option privilege in the case of an option to buy is the opportunity to benefit during the option's exercise period from any increase in the value of property subject to the option during such period, without risking any capital. Similarly, the option privilege in the case of an option to sell is the opportunity to benefit during the exercise period from a decrease in the value of property subject to the option. For example, if at some time during the exercise period of an option to buy, the fair market value of the property subject to the option is greater than the option's exercise price, a profit may be realized by exercising the option and immediately selling the property so acquired for its higher fair market value. Irrespective of whether any such gain may be realized immediately at the time an option is granted, the fair market value of an option to buy includes the value of the right to benefit from any future increase in the value of the property subject to the option (relative to the option exercise price), without risking any capital. Therefore, the fair market value of an option is not merely the difference that may exist at a particular time between the option's exercise price and the value of the property subject to the option, but also includes the value of the option privilege for the remainder of the exercise period. Accordingly, for purposes of this section, in determining whether the fair market value of an option is readily ascertainable, it is necessary to consider whether the value of the entire option privilege can be measured with reasonable accuracy. In determining whether the value of the option privilege is readily ascertainable, and in determining the amount of such value when such value is readily ascertainable, it is necessary to consider—
(i) Whether the value of the property subject to the option can be ascertained;
(ii) The probability of any ascertainable value of such property increasing or decreasing; and.
(iii) The length of the period during which the option can be exercised.

26 CFR 1.83-7 - Taxation of nonqualified stock options.
(a) In general. If there is granted to an employee or independent contractor (or beneficiary thereof) in connection with the performance of services, an option to which section 421 (relating generally to certain qualified and other options) does not apply, section 83(a) shall apply to such grant if the option has a readily ascertainable fair market value (determined in accordance with paragraph (b) of this section) at the time the option is granted. The person who performed such services realizes compensation upon such grant at the time and in the amount determined under section 83(a). If section 83(a) does not apply to the grant of such an option because the option does not have a readily ascertainable fair market value at the time of grant, sections 83(a) and 83(b) shall apply at the time the option is exercised or otherwise disposed of, even though the fair market value of such option may have become readily ascertainable before such time. If the option is exercised, sections 83(a) and 83(b) apply to the transfer of property pursuant to such exercise, and the employee or independent contractor realizes compensation upon such transfer at the time and in the amount determined under section 83(a) or 83(b). If the option is sold or otherwise disposed of in an arm's length transaction, sections 83(a) and 83(b) apply to the transfer of money or other property received in the same manner as sections 83(a) and 83(b) would have applied to the transfer of property pursuant to an exercise of the option. The preceding sentence does not apply to a sale or other disposition of the option to a person related to the service provider that occurs on or after July 2, 2003. For this purpose, a person is related to the service provider if -
(1) The person and the service provider bear a relationship to each other that is specified in section 267(b) or 707(b)(1), subject to the modifications that the language “20 percent” is used instead of “50 percent” each place it appears in sections 267(b) and 707(b)(1), and section 267(c)(4) is applied as if the family of an individual includes the spouse of any member of the family; or.
(2) The person and the service provider are engaged in trades or businesses under common control (within the meaning of section 52(a) and (b)); provided that a person is not related to the service provider if the person is the service recipient with respect to the option or the grantor of the option.
(b) Readily ascertainable defined -
(1) Actively traded on an established market. Options have a value at the time they are granted, but that value is ordinarily not readily ascertainable unless the option is actively traded on an established market. If an option is actively traded on an established market, the fair market value of such option is readily ascertainable for purposes of this section by applying the rules of valuation set forth in § 20.2031-2.
(2) Not actively traded on an established market. When an option is not actively traded on an established market, it does not have a readily ascertainable fair market value unless its fair market value can otherwise be measured with reasonable accuracy. For purposes of this section, if an option is not actively traded on an established market, the option does not have a readily ascertainable fair market value when granted unless the taxpayer can show that all of the following conditions exist:
(i) The option is transferable by the optionee;
(ii) The option is exerciseable immediately in full by the optionee;
(iii) The option or the property subject to the option is not subject to any restriction or condition (other than a lien or other condition to secure the payment of the purchase price) which has a significant effect upon the fair market value of the option; and.
(iv) The fair market value of the option privilege is readily ascertainable in accordance with paragraph (b)(3) of this section.
(3) Option privilege. The option privilege in the case of an option to buy is the opportunity to benefit during the option's exercise period from any increase in the value of property subject to the option during such period, without risking any capital. Similarly, the option privilege in the case of an option to sell is the opportunity to benefit during the exercise period from a decrease in the value of property subject to the option. For example, if at some time during the exercise period of an option to buy, the fair market value of the property subject to the option is greater than the option's exercise price, a profit may be realized by exercising the option and immediately selling the property so acquired for its higher fair market value. Irrespective of whether any such gain may be realized immediately at the time an option is granted, the fair market value of an option to buy includes the value of the right to benefit from any future increase in the value of the property subject to the option (relative to the option exercise price), without risking any capital. Therefore, the fair market value of an option is not merely the difference that may exist at a particular time between the option's exercise price and the value of the property subject to the option, but also includes the value of the option privilege for the remainder of the exercise period. Accordingly, for purposes of this section, in determining whether the fair market value of an option is readily ascertainable, it is necessary to consider whether the value of the entire option privilege can be measured with reasonable accuracy. In determining whether the value of the option privilege is readily ascertainable, and in determining the amount of such value when such value is readily ascertainable, it is necessary to consider -
(i) Whether the value of the property subject to the option can be ascertained;
(ii) The probability of any ascertainable value of such property increasing or decreasing; and.
(iii) The length of the period during which the option can be exercised.
(c) Reporting requirements. [Reserved]
(d) This section applies on and after July 2, 2003. For transactions prior to that date, see § 1.83-7 as published in 26 CFR part 1 (revised as of April 1, 2003).
This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.
It is not guaranteed to be accurate or up-to-date, though we do refresh the database weekly. More limitations on accuracy are described at the GPO site.