[Federal Register Volume 73, Number 138 (Thursday, July 17, 2008)]
[Proposed Rules]
[Pages 40999-41003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16177]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG-103146-08]
RIN 1545-BH69
Information Reporting Requirements Under Internal Revenue Code
Section 6039
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document contains proposed regulations relating to the
return and information statement requirements under section 6039 of the
Internal Revenue Code (Code). These regulations reflect changes to
section 6039 made by section 403 of the Tax Relief and Health Care Act
of 2006. These proposed regulations affect corporations that issue
statutory stock options and provide guidance to assist corporations in
complying with the return and information statement requirements under
section 6039.
DATES: Written or electronic comments and requests for a public hearing
must be received by October 15, 2008.
ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-103146-08), room
5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station,
Washington, DC 20044. Submissions may be hand delivered Monday through
Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-
103146-08), Courier's Desk, Internal Revenue Service, 1111 Constitution
Avenue, NW., Washington, DC, or sent electronically via the Federal
eRulemaking Portal at http://www.regulations.gov/ (IRS REG-103146-08).
FOR FURTHER INFORMATION CONTACT: Concerning these proposed regulations,
Thomas Scholz at (202) 622-6030 (not a toll-free number); concerning
submissions of comments and/or to request a hearing, Richard Hurst at
[email protected].
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information contained in this notice of proposed
rulemaking has been submitted to the Office of Management and Budget
for review in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)). Comments on the collection of information should be
sent to the Office of Management and
[[Page 41000]]
Budget, Attn: Desk Officer for the Department of the Treasury, Office
of Information and Regulatory Affairs, Washington, DC 20503, with
copies to the Internal Revenue Service, Attn: IRS Reports Clearance
Officer, SE:W:CAR:MP:T:T:SP; Washington, DC 20224. Comments on the
collection of information should be received by September 15, 2008.
Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the
proper performance of the functions of the Internal Revenue Service,
including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed
collection of information;
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the proposed collection of
information may be minimized, including through the application of
automated collection techniques or other forms of information
technology; and
Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of service to provide information.
The collection of information in these proposed regulations is in
Sec. 1.6039-1 and Sec. 1.6039-2. Section 6039 requires corporations
to file an information return with the IRS and furnish a written
statement to each employee, in a manner prescribed by the Secretary in
regulations, regarding: (i) The corporation's transfer of stock
pursuant to the employee's exercise of an incentive stock option
described in section 422(b); and (ii) the transfer of stock by the
employee where the stock was acquired pursuant to the exercise of an
option described in section 423(c). The information on the statements
required to be provided by the corporation will be used by employees to
complete their income tax returns in the year of the disposition of the
stock acquired pursuant to the statutory stock option. The likely
respondents are for-profit corporations.
Estimated total annual reporting burden: 25,000 hours.
Estimated average annual burden hours per respondent: 30 minutes.
Estimated number of respondents: 50,000.
Estimated annual frequency of responses: annually.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by the Office of Management and Budget.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and
tax return information are confidential, as required by 26 U.S.C. 6103.
Background
Section 403 of the Tax Relief and Health Care Act of 2006 (Act)
amended the information reporting requirements of section 6039. Prior
to its amendment, section 6039 required corporations to furnish a
written statement to each employee, in a manner prescribed by the
Secretary in regulations, regarding: (i) The corporation's transfer of
stock pursuant to the employee's exercise of an incentive stock option
described in section 422(b); and (ii) the transfer of stock by the
employee where the stock was acquired pursuant to the exercise of an
option described in section 423(c). Corporations must furnish employees
with the information statements required by section 6039 on or before
January 31 of the year following the year for which the statement is
required. Prior to the amendment of section 6039 made by the Act, the
regulations under section 6039 were last updated in 2004. See TD 9144
(69 FR 46401).
As amended by the Act, section 6039 requires corporations to file
an information return with the IRS, in addition to providing employees
with an information statement, following a stock transfer. The time and
manner for filing a return with the IRS, as well as the information to
be contained in the return and furnished to employees, is addressed in
these proposed regulations. Section 6039, as amended by the Act,
applies to stock transfers occurring on or after January 1, 2007.
However, in Notice 2008-8, 2008-3 IRB 276 (December 19, 2007) (see
Sec. 601.601(d)(2)(ii)(b)), the IRS waived the obligation to file an
information return for 2007 stock transfers governed by section 6039.
Explanation of Provisions
These proposed regulations describe the information that would be
required in the return filed with the IRS and the information statement
furnished to employees pursuant to section 6039. There are two sections
under these proposed regulations: Sec. 1.6039-1, Returns required in
connection with certain options; and Sec. 1.6039-2, Statements to
persons with respect to whom information is reported. In crafting these
proposed regulations, one principal objective was to require
corporations to furnish employees with sufficient information to enable
them to calculate their tax obligations upon disposition of the shares
acquired by the exercise of a statutory option. Under these proposed
regulations, essentially the same information would be reported with
respect to the transfer of stock pursuant to the exercise of an
incentive stock option and the transfer of stock acquired pursuant to
an employee stock purchase plan.
With respect to a transfer of stock upon the exercise of an
incentive stock option, the information required to be furnished to
employees pursuant to the existing regulations under Sec. 1.6039-1 is
sufficient to enable the employee to calculate his or her tax
obligations upon disposition of the shares. Therefore, the information
that would be required in the information return and the statement
furnished to employees under these proposed regulations is generally
the same information that is included in the statement furnished to
employees pursuant to the existing regulations under Sec. 1.6039-1.
With respect to an employee's transfer of stock acquired under an
employee stock purchase plan, the information required to be furnished
to employees pursuant to the existing regulations under Sec. 1.6039-1
is not sufficient to enable the employee to calculate his or her tax
obligations upon disposition of the shares. Accordingly, these proposed
regulations would require that additional information be included in
the information return and the statement furnished to employees.
As discussed further in the preamble, the IRS will issue two forms
with instructions that corporations must use to satisfy the return and
information statement requirements under section 6039.
1. Returns Required With Respect to Incentive Stock Options
Section 1.6039-1(a) of these proposed regulations would require
every corporation that transfers stock pursuant to an employee's
exercise of an incentive stock option described in section 422(b) to
file a return with respect to each transfer made during a particular
year. This return would include the following information:
(i) The name, address, and employer identification number of the
corporation transferring the stock;
(ii) If other than the corporation identified in (i), the name,
address and employer identification number of the corporation whose
stock is being transferred;
(iii) The name, address, and identifying number of the person to
[[Page 41001]]
whom the share or shares of stock were transferred pursuant to the
exercise of the option;
(iv) The date the option was granted to the person;
(v) The exercise price per share;
(vi) The date the option was exercised by the person;
(vii) The fair market value of a share of stock on the date the
option was exercised by the person; and
(viii) The number of shares of stock transferred to the person
pursuant to the exercise of the option.
The information required to be included on the information return
pursuant to these proposed regulations is generally the same
information that is required to be furnished to employees pursuant to
the existing regulations. However, while the existing regulations
require that the corporation report the total cost of all shares
acquired, these proposed regulations would require instead that the
corporation report the exercise price per share. The exercise price per
share, rather than the total cost of all shares acquired, is more
readily useable by the employee in calculating the tax obligation when
the employee later disposes of some or all of the shares.
Returns required by Sec. 1.6039-1(a) must be filed on or before
January 31 of the year following the calendar year for which the return
is made. Such returns must be made on Form 3921, Exercise of an
Incentive Stock Option Under Section 422(b) (or its designated
successor) and filed in the manner provided in the instructions
thereto. The IRS expects to release Form 3921 later this year.
2. Returns Required With Respect to Stock Purchased Under an Employee
Stock Purchase Plan
Section 1.6039-1(b) of these proposed regulations would require
every corporation which records a transfer of the legal title of a
share of stock acquired by the employee where the stock was acquired
pursuant to the exercise of an option described in section 423(c) to
file a return with respect to each transfer made during a particular
year. This return would include the following information:
(i) The name, address, and identifying number of the transferor;
(ii) The name, address and employer identification number of the
corporation whose stock is being transferred;
(iii) The date the option was granted to the transferor;
(iv) The fair market value of the stock on the date the option was
granted;
(v) The exercise price per share;
(vi) The date the option was exercised by the transferor;
(vii) The fair market value of the stock on the date the option was
exercised by the transferor;
(viii) The date the legal title of the shares was transferred by
the transferor; and
(ix) The number of shares to which legal title was transferred by
the transferor.
These proposed regulations would require that all of the
information required pursuant to the existing regulations be included
on the information statement furnished to employees. However, the
information required to be furnished to employees pursuant to the
existing regulations is not sufficient to enable the employee to
calculate his or her tax obligations upon disposition of the shares.
Accordingly, items (iii), (iv), (v), (vi) and (vii) in the list in the
preceding paragraph would request new information that is not required
to be reported under the existing regulations. This additional
information, along with the information required under the existing
regulations, will enable the employee to determine his or her tax
obligations upon the disposition of shares.
Returns required by Sec. 1.6039-1(b) must be filed on or before
January 31 of the year following the calendar year for which the return
is made. Such returns must be made on Form 3922, Transfer of Stock
Acquired Through an Employee Stock Purchase Plan Under Section 423(c)
(or its designated successor) and filed in the manner provided in the
instructions thereto. The IRS expects to release Form 3922 later this
year.
3. Information Statements Required With Respect to Incentive Stock
Options
Section 1.6039-2(a) of these proposed regulations would require
every corporation filing a return under Sec. 1.6039-1(a) to furnish to
each employee named in such return a written statement with respect to
the transfer or transfers made to such employee during such year. Each
information statement required by Sec. 1.6039-2(a) must be furnished
to the employee on or before January 31 of the year following the
calendar year for which the return under Sec. 1.6039-1(a) is made.
Such information statements must be furnished to employees on Form 3921
(or its designated successor) and be delivered in the manner provided
in the instructions thereto. Rules regarding electronic furnishing of
the information statements and furnishing the information statement by
mail (items addressed under Sec. 1.6039-1(d) and (f) of the existing
regulations) will be set forth in the instructions to Form 3921 (or its
designated successor).
4. Information Statements Required With Respect to Stock Purchased
Under an Employee Stock Purchase Plan
Section 1.6039-2(b) of these proposed regulations would require
every corporation filing a return under Sec. 1.6039-1(b) to furnish to
each employee named in such return a written statement with respect to
the transfer or transfers made by the employee during such year. Each
information statement required by Sec. 1.6039-2(b) must be furnished
to the employee on or before January 31 of the year following the
calendar year for which the return under Sec. 1.6039-1(b) is made.
Such information statements must be furnished to employees on Form 3922
(or its designated successor) and be delivered in the manner provided
in the instructions thereto. Rules regarding electronic furnishing of
the information statements and furnishing the information statement by
mail (items addressed under Sec. 1.6039-1(d) and (f) of the existing
regulations) will be set forth in the instructions to Form 3922 (or its
designated successor).
Proposed Effective Date
These regulations under section 6039 are proposed to apply to any
stock transfer occurring on or after January 1, 2007. However,
corporations are not required to comply with the return requirements of
Sec. 1.6039-1(a) and (b) for stock transfers that occur during the
2007 and 2008 calendar years. Notwithstanding the waiver of the return
requirements for 2007 and 2008 stock transfers, corporations must
furnish information statements to employees for such 2007 and 2008
stock transfers. For purposes of furnishing information statements for
2007 and 2008 stock transfers, corporations may rely on Sec. 1.6039-1
of the 2004 final regulations (TD 9144) or Sec. 1.6039-2 of these
proposed regulations.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in Executive Order
12866. Therefore, a regulatory assessment is not required. It is hereby
certified that the regulations will not have a significant economic
impact on a substantial number of small entities. This certification is
based on the fact that the filing of a return with the IRS and the
provision of employee statements required under these proposed
regulations will impose a minimal administrative burden on small
[[Page 41002]]
entities. It is estimated that it will take approximately 30 minutes to
prepare and provide the information required by these regulations.
Further, the information to be provided is readily available.
Therefore, an analysis under the Regulatory Flexibility Act (5 U.S.C.
chapter 6) is not required. Pursuant to section 7805(f) of the Internal
Revenue Code, this regulation has been submitted to the Chief Counsel
for Advocacy of the Small Business Administration for comment on their
impact on small business.
Comments and Request for Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written (a signed original and eight
(8) copies) or electronic comments that are timely submitted to the
IRS. The IRS and the Treasury Department request comments on the
clarity of the proposed rules and how they can be made easier to
understand. All comments will be available for public inspection and
copying. A public hearing will be scheduled if requested in writing by
any person that timely submits written or electronic comments. If a
public hearing is scheduled, notice of the date, time, and place for
the hearing will be published in the Federal Register.
Drafting Information
The principal author of these proposed regulations is Thomas
Scholz, Office of the Division Counsel/Associate Chief Counsel (Tax
Exempt and Government Entities). However, other personnel from the IRS
and Treasury Department participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.6039-1 is revised to read as follows:
Sec. 1.6039-1 Returns required in connection with certain options.
(a) Requirement of return with respect to incentive stock options
under section 6039(a)(1). (1) Every corporation which in any calendar
year transfers to any person a share of stock pursuant to such person's
exercise of an incentive stock option shall, for such calendar year,
file a return with respect each transfer made during such year. This
return must include the following information--
(i) The name, address, and employer identification number of the
corporation transferring the stock;
(ii) If other than the corporation identified in paragraph
(a)(1)(i) of this section, the name, address and employer
identification number of the corporation whose stock is being
transferred;
(iii) The name, address, and identifying number of the person to
whom the share or shares of stock were transferred pursuant to the
exercise of the option;
(iv) The date the option was granted to the person;
(v) The exercise price per share;
(vi) The date the option was exercised by the person;
(vii) The fair market value of a share of stock on the date the
option was exercised by the person; and
(viii) The number of shares of stock transferred to the person
pursuant to the exercise of the option.
(2) Each return required by this paragraph (a) shall be made on
Form 3921, Exercise of an Incentive Stock Option Under Section 422(b)
(or its designated successor) and shall be filed in such manner as
provided in the instructions thereto.
(b) Requirement of return with respect to stock purchased under an
employee stock purchase plan under section 6039(a)(2). (1) Every
corporation which in any calendar year records, or has by its agent
recorded, a transfer of the legal title of a share of stock acquired by
the transferor pursuant to the transferor's exercise of an option
granted under an employee stock purchase plan and described in section
423(c) (relating to the special rule where the option price is between
85 percent and 100 percent of value of the stock), shall, for such
calendar year, file a return with respect each transfer made during
such year. This return must include the following information--
(i) The name, address, and identifying number of the transferor;
(ii) The name, address and employer identification number of the
corporation whose stock is being transferred;
(iii) The date the option was granted to the transferor;
(iv) The fair market value of the stock on the date the option was
granted;
(v) The exercise price per share;
(vi) The date the option was exercised by the transferor;
(vii) The fair market value of the stock on the date the option was
exercised by the transferor;
(viii) The date the legal title of the shares was transferred by
the transferor; and
(ix) The number of shares to which legal title was transferred by
the transferor.
(2) Each return required by this paragraph (b) shall be made on
Form 3922, Transfer of Stock Acquired Through an Employee Stock
Purchase Plan Under Section 423(c) (or its designated successor) and
shall be filed in such manner as provided in the instructions thereto.
(3) A return is required by reason of a transfer described in
section 6039(a)(2) of a share only with respect to the first transfer
of such share by the person who exercised the option. Thus, for
example, if the owner has record title to a share or shares of stock
transferred to a recognized broker or financial institution and the
stock is subsequently sold by such broker or institution (on behalf of
the owner), the corporation is only required to file a return relating
to the transfer of record title to the broker or financial institution.
Similarly, a return is required when a share of stock is transferred by
the optionee to himself and another person (or persons) as joint
tenants, tenants by the entirety or tenants in common. However, when
stock is originally issued to the optionee and another person (or
persons) as joint tenants, or as tenants by the entirety, the return
required by this paragraph shall be filed with respect to the first
transfer of the title to such stock by the optionee.
(4) Every corporation which transfers any share of stock pursuant
to the exercise of an option described in this paragraph shall identify
such stock in a manner sufficient to enable the accurate reporting of
the transfer of record title to such shares. Such identification may be
accomplished by assigning to the certificates of stock issued pursuant
to the exercise of such options a special serial number or color.
(c) Time for filing returns--(1) In general. Each return required
by this section for a calendar year must be filed on or before January
31 of the year following the year for which the return is required.
(2) Extension of time. An extension of time to file returns
required by this section may be granted in accordance with the
guidelines and procedures set forth in the instructions to Form 3921
and Form 3922.
(d) Penalty. For provisions relating to the penalty provided for
failure to file a return under this section, see section 6721.
[[Page 41003]]
(e) Effective/applicability date--(1) In general. Upon the date of
publication of the Treasury decision adopting the rules of this section
as a final regulation in the Federal Register, these rules will apply
as of January 1, 2007.
(2) Transition period. Taxpayers are not required to comply with
the return requirements of paragraphs (a) and (b) of this section for
stock transfers that occur during the 2007 and 2008 calendar years.
Par. 3. A new Sec. 1.6039-2 is added to read as follows:
Sec. 1.6039-2 Statements to persons with respect to whom information
is reported.
(a) Requirement of statement with respect to incentive stock
options under section 6039(b). (1) Every corporation filing a return
under Sec. 1.6039-1(a) shall furnish to each person whose name is set
forth in such return a written statement with respect to the transfer
or transfers made to such person during such year. This statement must
include the information described in Sec. 1.6039-1(a)(1).
(2) Each statement required by this paragraph (a) to be furnished
to any person must be furnished to such person on Form 3921, Exercise
of an Incentive Stock Option Under Section 422(b) (or its designated
successor) and be delivered at such time and in such manner as provided
in the instructions thereto.
(b) Requirement of statement with respect to stock purchased under
an employee stock purchase plan under section 6039(a)(2). (1) Every
corporation filing a return under Sec. 1.6039-1(b) shall furnish to
each person whose name is set forth in such return a written statement
with respect to the transfer or transfers made by such person during
such year. This statement must include the information described in
Sec. 1.6039-1(b)(1).
(2) Each statement required by this paragraph (b) to be furnished
to any person must be furnished to such person on Form 3922, Transfer
of Stock Acquired Through an Employee Stock Purchase Plan Under Section
423(c) (or its designated successor) and be delivered at such time and
in such manner as provided in the instructions thereto.
(3) If the statement required by this paragraph is made by the
authorized transfer agent of the corporation, it is deemed to have been
made by the corporation. The term transfer agent, as used in this
section, means any designee authorized to keep the stock ownership
records of a corporation and to record a transfer of title of the stock
of such corporation on behalf of such corporation.
(c) Time for furnishing statements--(1) In general. Each statement
required by this section to be furnished to any person for a calendar
year must be furnished to such person on or before January 31 of the
year following the year for which the statement is required.
(2) Extension of time. An extension of time to furnish statements
required by this section may be granted in accordance with the
guidelines and procedures set forth in the instructions to Form 3921
and Form 3922.
(d) Penalty. For provisions relating to the penalty provided for
failure to furnish a statement under this section, see section 6722.
(e) Effective/applicability date--(1) In general. Upon the date of
publication of the Treasury decision adopting the rules of this section
as a final regulation in the Federal Register, these rules will apply
as of January 1, 2007.
(2) Reliance and transition period. For stock transfers that are
subject to the return requirements under Sec. 1.6039-1(a) and (b), and
occur during the 2007 and 2008 calendar years, taxpayers may comply
with Sec. 1.6039-1 of the 2004 final regulations (69 FR 46401) or this
section.
Linda E. Stiff,
Deputy Commissioner for Services and Enforcement.
[FR Doc. E8-16177 Filed 7-16-08; 8:45 am]
BILLING CODE 4830-01-P