What Does the New FIFO Cost Basis Rule in the Tax Bill Mean for Equity Incentive Plans?

Under current law, taxpayers who hold multiple lots of the same shares can identify which shares are considered sold for purposes of calculating capital gains.  Section 13533 of the Senate tax bill would eliminate this flexibility and mandate a first-in, first out (FIFO) approach.

This will adversely impact employees who have acquired low cost basis company shares in the past and continue to hold those shares.

  • The obvious –  Following enactment,  employees will want to review/confirm their history of share purchases and determine their cost basis in each lot of  company shares, so that they can more precisely estimate the capital gains that will be recognized in any future sale or disposition.
  • The not so obvious – Following enactment, any market sale related to an equity award (exercise of a stock option and sell-to-cover for withholding) is likely to be considered a sale to which this FIFO approach applies.  The current wording of the provision suggests it may be difficult for Treasury to mitigate the impact of this rule through exceptions in subsequent Regulations.

At this point, there is no real fix to this proposed rule change.  This is an employee issue.  However, if the tax bill is enacted with this provision intact, companies may want to review their communication practices regarding tax changes which impact their employees’ participation in share plans.

Narendra Acharya focuses his practice on matters relating to US and international employee benefits and executive compensation — including global stock plans and pensions, as well as matters pertaining to pensions, executive compensation and employment issues in mergers and acquisitions. Mr. Acharya assists US and non-US companies – both publicly traded and private – in the design and implementation of employee stock plans. He has extensive experience advising clients on income tax, social security, payroll withholding and reporting, local corporate tax deduction, employment law, securities and other regulatory issues applicable to equity awards in numerous jurisdictions.
Anne Batter is a partner in Baker McKenzie's Tax Practice Group with 25 years of tax experience. She focuses her practice on the tax treatment of executive compensation and fringe benefits arrangements. She also handles excise tax matters, particularly those involving the air transportation excise tax. She previously served as an attorney in the Income Tax & Accounting Division of the IRS’s Office of Chief Counsel and as attorney-advisor with the US Tax Court.