T.C. Memo. 2007-2
UNITED STATES TAX COURT
EDWARD L. WALTER AND JAMIE K. WALTER, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8321-05. Filed January 3, 2007.
Deborah R. Jaffe and Robert M. McCallum, for petitioners.
Julie L. Payne, for respondent.
MEMORANDUM OPINION
LARO, Judge: This case is before the Court for decision
without trial. See Rule 122.1 Petitioners petitioned the Court
to redetermine respondent’s determination of a $167,401
1
Rule references are to the Tax Court Rules of Practice and
Procedure. Unless otherwise indicated, section references are to
the applicable versions of the Internal Revenue Code.
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deficiency in their 2000 Federal income tax and an addition to
tax of $5,197.70 under section 6651(a). After concessions by
respondent, we are left to decide the date on which to value
stock transferred to Edward Walter (petitioner) through his
exercise of stock options. Respondent argues that the
appropriate valuation date is July 14, 2000. Petitioners argue
that the appropriate valuation date is July 18, 2000. We agree
with respondent.
Background
All facts were stipulated or contained in the exhibits
submitted therewith. We find the facts accordingly. At the time
of the filing of the petition herein, petitioners resided on
Bainbridge Island, Washington.
Stock Option Grants
Petitioner was employed by Primus Knowledge Solutions Inc.
(Primus), until his employment terminated on May 5, 2000. As an
employee of Primus, petitioner was granted three separate options
to purchase its publicly traded common stock. More specifically,
respective stock option letter agreements dated February 4, 1999,
granted petitioner a nonqualified stock option (first option) to
purchase 78,182 shares of Primus stock, a nonqualified stock
option (second option) to purchase 16,666 shares of Primus stock,
and an incentive stock option (third option) to purchase 48,484
shares of Primus stock. The exercise price under each of these
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options was $8.25 per share. As of July 2000, petitioner was
sufficiently vested to purchase 27,676 of the shares mentioned in
the first option, 5,899 of the shares mentioned in the second
option, and 17,163 of the shares mentioned in the third option.
The stock option letter agreements pertaining to the first
and second options provided for payment of the exercise price of
the shares described therein as follows:
The option may be exercised by the delivery of: (a)
Cash, personal check (unless, at the time of exercise,
the Plan Administrator[2] determines otherwise), bank
certified or cashier’s check; or (b) Unless the Plan
Administrator in its sole discretion determines
otherwise, shares of the capital stock of the Company
held by you for a period of at least six months having
a fair market value at the time of exercise, as
determined in good faith by the Plan Administrator,
equal to the exercise price. * * * As a condition to
the exercise of a non-qualified stock option, you shall
make such arrangements as the Company may require for
the satisfaction of any federal, state or local
withholding tax obligations that may arise in
connection with such exercise.
The stock option letter agreement pertaining to the third option
provided for payment of the exercise price of the shares
described therein as follows:
Unless the Plan administrator at any time determines
otherwise, the option may be exercised by the delivery
of: (a) Cash, personal check, bank certified or
cashier’s check; or (b) Shares of the capital stock of
the Company held by you for a period of at least six
months having a fair market value at the time of
2
Primus’s 1995 Stock Incentive Compensation Plan (the
1995 Plan) defined the “Plan Administrator” as Primus’s board of
directors or any properly designated committee of the board.
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exercise, as determined in good faith by the Plan
Administrator, equal to the exercise price.
1995 Stock Incentive Compensation Plan
The stock options granted by the three stock option letter
agreements were granted pursuant to the 1995 Plan, and each of
those agreements incorporated the 1995 Plan by reference.
Section 7.4 of the 1995 Plan states that an optionee may exercise
his or her stock options “by written notice to the Company, in
accordance with procedures established by the Plan Administrator,
setting forth the number of shares with respect to which the
Option is being exercised and accompanied by payment in full as
described in Section 7.5 of the Plan.” Section 7.5 of the 1995
Plan states that payment in full may be made by the following
means:
The exercise price for shares purchased under an Option
shall be paid in full to the Company [Primus] by
delivery of consideration equal to the product of the
Option exercise price and the number of shares
purchased. Such consideration must be paid in cash,
except that the Plan Administrator may, either at the
time the Option is granted or at any time before it is
exercised and subject to such limitations as the Plan
Administrator may determine, authorize payment in cash
and/or one or more of the following alternative forms:
(i) Common Stock already owned by the Holder for at
least six months (or any shorter period necessary to
avoid a charge to the Company’s earnings for financial
reporting purposes) having a Fair Market Value on the
day prior to the exercise date equal to the aggregate
Option exercise price; (ii) a promissory note
authorized pursuant to Section 11 of the Plan; (iii) if
the Common Stock is publicly traded, delivery of a
properly executed exercise notice, together with
irrevocable instructions, to (a) a brokerage firm
designated by the Company to deliver promptly to the
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Company the aggregate amount of sale or loan proceeds
to pay the Option exercise price and any withholding
tax obligations that may arise in connection with the
exercise and (b) the Company to deliver the
certificates for such purchased shares directly to such
brokerage firm, all in accordance with the regulations
of the Federal Reserve Board; or (iv) such other
consideration as the Plan Administrator may permit.
Section 14 of the 1995 Plan states that Primus may require an
optionee to pay Primus the amount of any withholding tax that
Primus is required to withhold with respect to the grant,
exercise, payment, or settlement of the option. The 1995 Plan
does not provide for postponing the delivery of shares of stock
to an optionee who exercises a stock option.
Petitioner’s Piper Jaffray Account
During all periods relevant to this case, U.S. Bancorp Piper
Jaffray (Piper Jaffray) was a brokerage firm designated by Primus
as one authorized to pay the optionee’s exercise price and
receive the optionee’s certificates for purchased shares. On
July 13, 2000, petitioner opened an asset management account at
Piper Jaffray. Petitioner stated on the application that his
annual income was $150,000, that his net worth, excluding his
home, was more than $999,000, and that his liquid net worth
(e.g., his cash and securities holdings) totaled $500,000. The
account gave petitioner “automatic access to credit extension
(pre-approved loans at competitive rates).” Petitioner’s account
at Piper Jaffray was subject to an Asset Management Account
Agreement, Disclosure Statement, and Application (PJ account
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agreement). The PJ account agreement stated, in part, that
petitioner’s account included a “ready purchase credit feature”.
That feature allowed petitioner to purchase securities on credit
of up to 50 percent of the current market value of eligible
securities in his account. If petitioner used this feature, any
securities in his Piper Jaffray account became collateral for the
extended credit and, in the event of a default by petitioner in
repaying the extension of credit, could be sold by Piper Jaffray
to reduce or to liquidate entirely any debit balances in his
account.
As to any order that petitioner placed with Piper Jaffray
for the purchase of securities, the PJ account agreement stated:
When I buy securities, you will first apply any cash in
my Account on the settlement date to pay for the
purchase. If there is insufficient cash, you will then
redeem Fund shares at net asset value to pay the amount
due.
If there are not enough Fund shares in the Account
to pay this amount, the trade will be treated as a
credit transaction. You may extend credit to me on the
terms and conditions set forth in this Agreement. Any
credit you extend to me will be automatically
collateralized by eligible securities in my account.
If there are not sufficient eligible securities in the
Account, I must deposit additional cash or eligible
securities into my Account within the timeframes
required by regulations and your policies. If cash or
eligible securities are not deposited on time, you may
liquidate the securities at market risk and exposure to
me.
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Stock Option Notice of Exercise and Exercise
In order for petitioner to exercise his stock options from
Primus, Piper Jaffray used a 1-page form (notice). The notice
was drafted on Piper Jaffray letterhead and was entitled “Stock
Option Notice of Exercise”. The top half of the notice allowed
petitioner to advise Primus that he was exercising his stock
options and to instruct Piper Jaffray on the manner in which he
would pay for the exercise by checking one of three boxes with
corresponding instructions.3 The top half of the notice also
advised Primus that Piper Jaffray was enclosing its check (or
checks) payable to Primus as “the TOTAL PAYMENT amount
representing the exercise price due as a result of the stock
option exercise”, instructed Primus to deposit into petitioner’s
Piper Jaffray account the shares he purchased by exercising his
stock options, and contained lines on which petitioner should
enter certain specified personal information and sign his name
with a date of signature. The bottom half of the notice
contained a statement that Primus verified the information set
forth on the top half of the notice and that it would deliver the
requested shares to Piper Jaffray within 3 business days or a
reasonable time thereafter. The bottom half of the notice also
3
The respective instructions to the three boxes were:
“SAME DAY SALE: Exercise your stock options by selling all
shares immediately”; “CASHLESS EXERCISE: Exercise your stock
options by selling enough shares to cover exercise cost”; and
“EXERCISE AND HOLD: Margin stock to exercise options and hold at
US Bancorp Piper Jaffray. Interest rates will be charged
according to current margin rates”.
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contained a space that Piper Jaffray desired Primus to sign to
acknowledge its verification.4
On July 13, 2000, petitioner signed his notice, and either
he or Piper Jaffray faxed the notice to Primus after Primus’s
close of business. The notice stated that petitioner was
exercising his options to purchase 44,791 shares and that the
total due was $369,525.75.5 In payment of those shares,
petitioner checked the box corresponding to “SAME DAY SALE:
Exercise your stock options by selling all shares immediately.”
At 7:30 a.m., of the next day, July 14, 2000, Piper Jaffray faxed
Primus a second notice that consisted of the notice faxed the day
before with two alterations; the first alteration crossed out the
election of the same day sale, and the second alteration checked
the box corresponding to “EXERCISE AND HOLD” and circled that box
and the related instructions. The notice faxed on July 14, 2000,
was accompanied by a cover sheet that explained that the first
notice was incorrect in that petitioner was exercising and
holding his shares rather than selling them. The cover sheet
also explained that petitioner on that day was wiring $369,525.75
to Piper Jaffray and that Piper Jaffray would forward those
proceeds to Primus when received. On July 14, 2000, $370,000 was
4
It does not appear that Primus signed the statement on
petitioner’s notice.
5
44,791 shares multiplied by a per share exercise price of
$8.25 equals $369,525.75.
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transferred by wire from petitioner’s account at Charles Schwab
to petitioner’s account at Piper Jaffray.
Piper Jaffray sent Primus two checks drawn on petitioner’s
Piper Jaffray account. The first check, in the amount of
$369,525.75 and dated July 18, 2000, was for payment of the
exercise price. The second check, in the amount of $385,711.80
and dated July 20, 2000, was for payment of withholding tax on
the exercise of petitioner’s nonqualified stock options.
Petitioner used credit from Piper Jaffray to fund $385,170.74 of
the $385,711.80.
On July 20, 2000, Primus prepared three confirmations. The
confirmations reported that petitioner, on July 14, 2000, had
exercised his first, second, and third options in purchase of
24,432 shares, 5,208 shares, and 15,151 shares, respectively, at
a market value per share of $52.4375. On each weekday from
Friday, July 14 through Thursday, July 20, 2000, shares of Primus
common stock had a closing price and an average high/low price as
follows:
Closing Price High/Low Average
July 14 $52.31 $52.4375
17 46.25 49.25
18 38.00 41.28
19 40.0625 40.685
20 40.00 41.375
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Form W-2 Issued to Petitioner and Petitioners’ 2000 Return
Petitioner received from Primus a 2000 Form W-2, Wage and
Tax Statement, reporting income of $1,449,373.65 from wages,
tips, and other compensation. Primus reported that $1,309,717.50
of this amount was attributable to the exercise of petitioner’s
stock options.6 In calculating petitioner’s 2000 income from the
exercise of his stock options, Primus used a market value per
share of $52.4375, which amount is the shares’ high/low average
on July 14, 2000.
On their joint 2000 Federal income tax return, petitioners
reported income from wages, salaries, tips, etc. of $1,474,374,
which amount represents all of the income reported as paid to
petitioner on the Forms W-2 issued by Primus and the Illinois
Institute of Technology.7 On line 21 (“Other income”) of their
return, petitioners reduced their gross income by $366,795. This
amount reflects a per share value of $40.0625 for Primus stock
purchased by the exercise of petitioner’s nonqualified stock
options, which value was the closing price for Primus common
stock on July 19, 2000.
6
This figure equals the 29,640 shares purchased through the
exercise of the first and second options multiplied by the
high/low average of $52.4375, less the 29,640 shares multiplied
by the $8.25 per share exercise price; in other words, (29,640 x
$52.4375) - (29,640 x $8.25) = $1,309,717.50.
7
In addition to the Form W-2 issued by Primus, a Form W-2
was issued to petitioner by the Illinois Institute of Technology
in the amount of $25,000.
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Discussion
Section 83(a) generally provides that when property is
transferred to a person in connection with the performance of
services, the fair market value of the property at the first time
the rights of the person having the beneficial interest in the
property are transferable or not subject to a substantial risk of
forfeiture, less the amount paid for the property, is includable
in the gross income of the person who performed the services.
See Tanner v. Commissioner, 117 T.C. 237, 241 (2001), affd.
65 Fed. Appx. 508 (5th Cir. 2003). In general, an employee who
receives a nonstatutory stock option without a readily
ascertainable fair market value is taxed not on the receipt 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 Racine v. Commissioner, T.C.
Memo. 2006-162; Facq v. Commissioner, T.C. Memo. 2006-111; sec.
1.83-3(b), Income Tax Regs.
The parties do not argue that the disputed shares were
nontransferrable or that petitioner’s right to full enjoyment of
the shares was conditioned upon the future performance of
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substantial services. Resolution of the issue before us turns on
the date of the transfer of the shares to petitioner. See sec.
1.83-3(a), Income Tax Regs. For purposes of section 83 and the
regulations thereunder, a transfer of property occurs when a
person acquires a beneficial ownership interest in the property.
See sec. 1.83-3(a)(1), Income Tax Regs.
Petitioner’s rights in the Primus stock subject to option
are fixed by the terms of the 1995 Plan and the stock option
letter agreements. Thus, the determination of when petitioner
acquired a beneficial interest in the Primus stock requires an
analysis of the contract provisions set forth in those documents.
These provisions define and establish when the exercise is
complete, so as to constitute a transfer of a beneficial interest
to petitioner.
We read those documents to conclude that petitioner acquired
a beneficial ownership interest in his Primus stock on the day
the notice became effective; i.e., on July 14, 2000.
Petitioner’s notice was first faxed to Primus after the close of
business on July 13, 2000, and was superseded by the second
notice faxed to Primus the next morning. The transmission of the
notice, as superseded, satisfied the requirements for exercising
the options set forth in section 7.4 of the 1995 Plan: It was a
written notice, delivered to Primus, specifying the number of
shares to be purchased, and accompanied by payment in full as
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described in section 7.5 of the 1995 Plan. Both the writing of a
check to Primus and the crediting of the shares to petitioner’s
brokerage account were but ministerial acts done in furtherance
of his exercise of July 14, 2000.
Petitioners argue that the exercise of the stock options did
not occur until July 18, 2000, because that is when full payment
of the exercise price of the shares took place in the form of the
issuance and delivery by Piper Jaffray of a check in full payment
of the exercise price. Petitioner’s notice, as superseded,
provided for payment in a method, as an alternative to a cash
payment, that was permitted by section 7.5(iii) of the 1995 Plan
and was sufficient to validate and make effective the notice on
July 14, 2000. Petitioners argue that this method was
unavailable to petitioner as a means by which to exercise his
options because it was not expressly provided for in the stock
option letter agreements entered into between petitioner and
Primus. We disagree. It was not necessary for that method to be
expressly provided for in those agreements because the agreements
specifically state that the terms of the options are as set forth
in the 1995 Plan and the stock option letter agreements, that the
agreements are subject to and in accordance with the express
terms and conditions of the 1995 Plan and are in all respects
limited by and subject to the express terms and provisions of the
1995 Plan, and that the terms set forth in the agreements are a
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summary of the most important terms set forth in the 1995 Plan.
A copy of the 1995 Plan was attached to and expressly
incorporated by reference into each of the stock option letter
agreements.
Although not mentioned by petitioners, we recognize that
section 7.5(iii) of the 1995 Plan states that irrevocable
instructions shall be given to pay not only the option price but
any withholding obligations as well and that the total amount
shown as due on the notice does not include any withholding tax.
We do not believe that this fact means that petitioner’s exercise
of his options was not effective on July 14, 2000. To be sure,
Primus considered petitioner to have met (and treated petitioner
as having met) all of the requirements to have exercised his
options in purchase of the stock on July 14, 2000. Primus issued
to petitioner the confirmations reporting that he had exercised
his options on that date, and it issued to him the Form W-2
valuing the stock as of that date. Primus’s view on the date on
which petitioner exercised his options is especially probative
here where, notwithstanding the applicability of section 7.5(iii)
of the 1995 Plan, section 7.5(iv) of the 1995 Plan allowed the
plan administrator to accept in exercise of the options any form
of consideration that it desired.
Moreover, by way of the notice, petitioner on July 14, 2000,
gave irrevocable instructions to Piper Jaffray to purchase Primus
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stock through an exercise of his options and directed Primus to
issue the stock to him by placing the stock in his Piper Jaffray
account. Petitioner also directed Piper Jaffray to hold the
stock and to purchase the stock on margin to generate any funds
necessary to pay for the purchase. The fact that the notice did
not state specifically that Primus was also instructed to forward
to Primus any withholding obligation connected to the exercise of
the options does not necessarily mean that Primus as of that date
was not obligated to do so. Given petitioner’s instructions to
Piper Jaffray and his PJ account agreement with Piper Jaffray,
Piper Jaffray was required to pay promptly to Primus all costs
related to petitioner’s exercise of his options in purchase of
the Primus stock, and such costs would have included the prompt
depositing of the withholding taxes if and when required. In
this regard, section 7.5(iii) of the 1995 Plan did not require
that the option exercise price or any withholding obligation be
tendered with the exercise notice in order to make the notice
effective; it simply stated that the optionee must instruct the
brokerage firm to deliver the option exercise price and any
withholding tax obligations “promptly”. Nor do the stock option
letters require that petitioner actually pay the withholding tax,
just that he “make such arrangements as the Company may require
for the satisfaction” of any withholding obligations connected to
the exercise.
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Petitioners further argue that even if petitioner had been
authorized to pay the exercise price by the method set forth in
section 7.5(iii) of the 1995 Plan, such attempt was ineffective
because petitioner gave irrevocable instructions neither to
Primus nor to Piper Jaffray. We find petitioners’ arguments on
this point unavailing. On July 14, 2000, Primus became obligated
to issue the shares, and Piper Jaffray became obligated to pay
for them, either by selling the shares or advancing funds on
margin. Petitioner’s July 14, 2000, notice constitutes his
unconditional acceptance of Primus’s offer under the stock option
grants and created a contract between Primus and petitioner for
the sale of the exercised shares of stock. Petitioner could not
revoke or withdraw his acceptance of Primus’s offer. Moreover,
petitioners have not shown that petitioner’s exercise was
conditional or that he reserved the right to revoke the notice.
A “beneficial owner” is one who does not have legal title to
property but has rights in the property which are the normal
incidents of owning property. Miller v. United States, 345 F.
Supp. 2d 1046, 1050 (N.D. Cal. 2004). Such rights include the
right to receive dividends on and vote the shares, the right to
dispose of the shares as the beneficial owner sees fit, and the
right to use the shares as collateral. See United States v.
Tuff, 359 F. Supp. 2d 1129, 1133 (W.D. Wash. 2005); Miller v.
United States, supra at 1050. Another indication that a transfer
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has occurred is the extent to which the transferee incurs the
risk that the value of the property at the time of transfer will
decline. Sec. 1.83-3(a)(6), Income Tax Regs.
As of July 14, 2000, petitioner could dispose of his Primus
stock as he saw fit. In fact, according to his notice,
petitioner provided for the sale on July 14, 2000, of all of the
Primus shares he obtained by exercising his stock options. This
sale would have taken place if petitioner had not again exercised
control over those shares by changing his sell order. Petitioner
also evidenced his beneficial ownership interest in the Primus
shares by using at least some of those shares as collateral for
the funds he borrowed from Piper Jaffray. Petitioner used credit
from Piper Jaffray to fund $385,170.74 of the $385,711.80 paid to
Primus for withholding taxes on the exercise of the stock
options. Under petitioner’s PJ account agreement, petitioner’s
use of credit caused the securities in his account (consisting
largely of the Primus stock he purchased by exercising his stock
options) to become collateral for that credit.
Also on July 14, 2000, petitioner incurred the risk of a
beneficial owner that the value of his Primus stock would
decline. According to his notice, petitioner determined to
eliminate this risk by electing to sell all of his Primus stock
immediately after exercise. When petitioner changed his mind and
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canceled his sell order, he chose to hold his Primus stock and to
bear the risk of a decline in its value.
We hold for respondent. We have considered all arguments
made by petitioners for a contrary holding and found those
arguments not discussed herein to be without merit. To reflect
the foregoing,
Decision will be entered
under Rule 155.