DocketNumber: Docket Nos. 5618-70, 5708-70
Citation Numbers: 58 T.C. 360, 1972 U.S. Tax Ct. LEXIS 118
Judges: Tietjens
Filed Date: 5/22/1972
Status: Precedential
Modified Date: 1/13/2023
*118
On Apr. 30, 1964, Rolfs and Arnold exercised statutory restricted stock options by giving their interest-bearing promissory notes for the purchase of a specified number of shares of stock of their employer, GB&B, pursuant to the latter's 1963 Employees' Stock Purchase Plan. Under the plan, cash payment had to be completed or a promissory note taken up no later than June 30, 1965, as a condition of the issuance of shares. Rolfs and Arnold took up their notes respectively on May 1 and June 30 of 1965. On Oct. 14, 1965, they sold all their GB&B stock.
*360 OPINION
In these consolidated cases the Commissioner determined deficiencies in the income tax of petitioners herein as follows:
Petitioner | Docket No. | Year | Deficiency |
John H. Rolfs | 5618-70 | 1965 | $ 2,375.00 |
Maxwell A. Arnold, Jr., and Patricia Arnold | 5708-70 | 1965 | 4,452.13 |
John H. Rolfs filed an individual Federal income tax return for 1965 with the district director of internal revenue in San Francisco, Calif. He resided in Sausalito, Calif., at the time of filing the petition herein. Maxwell A. Arnold, Jr., and Patricia Arnold have at all pertinent times been husband and wife residing at Menlo Park, Calif. They filed *361 a joint Federal income tax return for 1965 with the district director in San Francisco. Patricia Arnold is a party because she signed the joint return. Any reference to "petitioners" hereafter will refer to John Rolfs and Maxwell Arnold only.
The facts are fully stipulated and submitted with joint exhibits, and the legal issues are the same in both dockets. The Commissioner's sole determination in each is that*122 petitioners should have included as compensation the amounts realized upon the sale of stock they had previously acquired through the exercise of statutory restricted stock options. The petitioners reported the amounts as long-term capital gain in their respective returns, and they challenge the entire deficiencies. The issue is whether the shares were transferred to petitioners more than 6 months before petitioners disposed of them by sale.
Petitioners' common employer, Guild, Bascom & Bonfigli, Inc. (GB&B), an advertising agency incorporated in California, established on July 23, 1963, effective July 1, 1963, a restricted stock option plan called the 1963 Employees' Stock Purchase Plan. The objective of the plan was to permit employees who had completed a minimum of 1 year of service to become shareholders or to increase their shareholdings as the case may be, and the petitioners, both of whom worked for GB&B since the early 1950's, were eligible to participate.
Letters dated July 22, 1963, were sent to eligible employees informing them of the stock options granted pursuant to the plan. Originally the options had to be exercised before December 31, 1963, but the deadline was*123 extended, and petitioners timely exercised their respective options on April 30, 1964. The option price was $ 81 per share, a figure which equaled the fair market value of the stock on the date the options were granted. Each employee was entitled under the 1963 plan to purchase up to 200 shares, and was required to designate the number of whole shares desired when he exercised the option. On the date of exercise, Rolfs executed a promissory note pursuant to one of several acceptable means of payment, for the price of 95 shares plus 4-percent interest. Arnold gave a note for the purchase of 200 shares the same day. Under the plan cash payment had to be completed or a promissory note taken up no later than June 30, 1965, and on that date Arnold paid $ 16,200 with interest and thereupon received a certificate for 200 shares of GB&B stock bearing that date. Rolfs tendered $ 7,695 with interest in satisfaction of his note on the previous May 1, 1965, and received a certificate dated April 30, 1965.
Taking into account the facts already recited, the fact that petitioners did not individually own more than 10 percent of the GB&B voting stock on the option date of grant, and the fact*124 that under the terms of the plan the options themselves were nontransferable, there is no *362 doubt that the options exercised by the petitioners were "restricted stock options" within the meaning of
Late in August 1965, GB&B, acting as agent for the shareholders through its three senior partners, commenced negotiations with the Delaware corporation Dancer-Fitzgerald-Sample, Inc., for the cash purchase of all the outstanding GB&B common stock. An understanding was reached and all the GB&B stockholders sold their entire holdings for an agreed price of $ 181 per share. Accordingly, Rolfs realized $ 17,195 and Arnold realized $ 36,200 on the stock they had acquired originally through the 1963 stock purchase plan.
This case is not*125 one to be decided under the case law concerning nonstatutory stock options such as those dealt with in
*126 *363 The parties do not dispute that the date of the sale of all the GB&B stock by its shareholders was October 14, 1965. Since the date of the granting of the options was July 1, 1963, petitioners satisfied the first prong of
Although there is no definition of the term "transfer" in the statute,
*129 Petitioners must show that at least they possessed substantially all the rights of ownership of the optioned stock on or before April 13, 1965, the last day on which a holding period of 6 months could have begun. The Commissioner contends that various express conditions in the stock purchase plan in effect postponed the transfer date until after April 13, 1965. We are persuaded by the provisions of the plan calling for cash payment by the June 30, 1965, deadline as a condition of the issuance of shares. Evidently the parties considered it a major condition respecting GB&B's duty to perform. That being the case, we cannot conclude that transfer of substantially all the rights of ownership occurred at any time before petitioners made cash payment. As petitioners did not take up their promissory notes until after April 13, 1965, it follows that the Commissioner must prevail.
We do not think that the contracting parties intended that the mere giving of promissory notes would substitute for cash payment. Tender of the notes neither entitled petitioners to immediate delivery of the shares nor extended their deadline for eventual cash payment. 5
*130 Petitioners contend that
The precise amount of income petitioners realized is not an issue for our redetermination, but we note the parties' agreement, evidently for purposes of
1. All statutory references are to the Internal Revenue Code of 1954 unless otherwise stated.↩
2. The pertinent parts of the two interacting sections are as follow:
(a) In General. -- (1) no disposition of such share is made by him within 2 years from the date of the granting of the option nor within 6 months after the transfer of such share to him, * * *
(a) Effect of Qualifying Transfer. -- If a share of stock is transferred to an individual in a transfer in respect of which the requirements of section 422(a), 423(a), or 424(a) are met -- (1) except as provided in section 422(c)(1), no income shall result at the time of the transfer of such share to the individual upon his exercise of the option with respect to such share; * * * *
(b) Effect of Disqualifying Disposition. -- If the transfer of a share of stock to an individual pursuant to his exercise of an option would otherwise meet the requirements of section 422(a), 423(a), or 424(a) except that there is a failure to meet any of the holding period requirements of section 422(a)(1), 423(a)(1), or 424(a)(1), then any increase in the income of such individual or deduction from the income of his employer corporation for the taxable year in which such exercise occurred attributable to such disposition, shall be treated as an increase in income or a deduction from income in the taxable year of such individual or of such employer corporation in which such disposition occurred.↩
3.
(f)
4. In
5. Petitioners argue that the transfer occurred as early as the date the options were exercised, which we have determined to be Apr. 30, 1964. The opinion of the Third Circuit reversing our decision in
6.
(6) In determining the period for which the taxpayer has held stock or securities acquired from a corporation by the exercise of rights to acquire such stock or securities, there shall be included only the period beginning with the date on which the right to acquire was exercised.↩