I.R.C § 83(b) elections

by Allen M Lee20. January 2011 10:23

Q.  I am receiving restricted stock in a company and was given the option of making an I.R.C § 83(b) election.  What does this mean, and should I make the election?

When given restricted stock, an employee normally recognizes as ordinary income the excess of the fair market value of the stock received over the amount (if any) paid for the stock, at the time the employee’s beneficial interest in the stock is transferable or is no longer subject to a substantial risk of forfeiture, whichever occurs earlier.  This would be reported on a Form W-2 for employees or Form 1099 for independent contractors.  Gains that occur thereafter will qualify for capital gains treatment.

I.R.C. § 83(b) permits an employee who has received stock as compensation to report its value as income in the year of receipt even though the stock is subject to a substantial risk of forfeiture. If the election is made, the employee recognizes as ordinary income the excess of the fair market value of the stock received over the amount (if any) paid for the stock.  The employee's tax basis in the stock becomes the fair market value at the time of receipt. If the stock is later sold for a greater amount, the employee will realize a capital gain equal to the difference.

In essence, an 83(b) election changes the timing for the inclusion of income of the stock, from the time when the risk of forfeiture ceases to exist to the time of its receipt.  Making an I.R.C. § 83(b) election can be advantageous if an employee expects stock received as compensation to appreciate substantially in value, particularly if its value is small at the time it is received, since the employee will qualify for capital gains treatment on the appreciation.  The risk of making the I.R.C. § 83(b) election is that the employee will receive no deduction for the value of the stock that was reported as income if the stock is later forfeited, thus paying taxes on a stock that he or she does not have. 

An I.R.C. § 83(b) election should be made whenever an employee purchases his or her employer's stock for its fair market value. The election will not result in income to the employee because the value of the stock does not exceed its purchase price, and any future appreciation of the stock will qualify as capital gains.

An I.R.C. § 83(b) election must be made within 30 days after the employee receives the stock.  I.R.C. § 83(b)(2).  An I.R.C. § 83(b) election can be revoked on or before its due date. Thereafter, the election is revocable with the consent of the IRS if made under a mistake of fact, but not a mistake of law.  Rev. Proc. 2006-31, 2006-27 I.R.B. 32.


Allen M. Lee  Mr. Lee’s practice focuses on business, corporate and intellectual property matters, including the creation, protection and exploitation of intellectual property assets.  For more information contact: Allen M. Lee, a Professional Law Corporation, Tel: (408) 249-2735, Email: info@allenmlee.com, Internet: www.allenmlee.com.


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