S. It is important to understand the differences in these rules, particularly the extent to which these differences affect the after-tax return to a Canadian executive compared to a U. Part II considers these personal income tax rules in detail. For individuals, the exemption amount depends on whether the individual is married and filing a joint return (in which case the amount is ,000) or is a surviving spouse (,000) or is single (,750).
In particular, the relevant personal income tax rules in the two countries are compared and contrasted to demonstrate the role these rules may play in determining the demand for backdated options in the two countries. As will be shown, this is potentially an important component in the decision of executives to accept backdated stock options and may provide an additional incentive for executives to demand them in Canada.
Another piece is the insider reporting obligations imposed upon some executives by securities regulations. Given a lenient disclosure regime for reporting the grant and exercise of stock options, as some have argued currently exists in Canada, backdating could easily go undetected.
Greed is often cited as the motive for backdated options. However, while greed could account for a desire for higher compensation, it cannot account for the form that such compensation takes. The exemption amount begins to be phased out when AMTI exceeds a threshold (0,000 for a married individual filing a joint return; 2,500 for a single individual). The deferral of the income inclusion for an ISO is an adjustment in computing AMTI, resulting in the addition to regular taxable income in the tax year in which the option is exercised of an amount equal to the difference between the fair market value of the shares and the exercise price of the option.
Both sets of motivations arise from the quantitative and qualitative benefits, costs, and risks of issuing and receiving backdated options. Certain AMT may be carried forward and applied to reduce the general tax payable in subsequent years (to the extent that the general tax exceeds the tentative alternative minimum tax liability for the subsequent year).
Most of the research to date has focused on supply side factors (e.g., accounting treatment, securities regulations, and corporate taxation), while there has been little discussion of demand side factors.
The first step in untangling the causes of backdating is to acknowledge that the backdating phenomenon must be driven by both supply and demand factors. Lipman, Incentive Stock Options and the Alternative Minimum Tax: The Worst of Time, 39 Harv. Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, Pub.
Personal income taxation of stock options in Canada is notably less complex and more generous from the employee’s perspective than in the United States. The AMT rate for individuals is 26% of such amount up to 5,000 and 28% of any excess. The comparison suggests that the personal tax regime may have been one of the factors which impacted the desire to receive backdated options in lieu of other forms of compensation in Canada but not so in the United States. Prior to 2003, the long-term capital gains rate was generally 20%. The practice of backdating executive stock options has received significant attention in the U. financial and legal literature, and has recently begun to be discussed in the Canadian legal literature. Backdating, in its most basic form, is the use of hindsight to selectively pick a local low point in a stock’s trading price and issue executive stock options stipulating the selected date as the grant date when, in fact, the options are granted at a later date. In 2003, the rate was reduced to 5% for individuals in the lowest two income brackets and 15% for all others. Second, upon the sale of the stock acquired pursuant to the option, the difference between the proceeds of disposition of the stock and the fair market value of the stock on the date the option is exercised is taxed as a capital gain or capital loss, as the case may be. One exception concerns stock options granted by a Canadian-controlled private corporation (“CCPC”). To be precise, the AMT imposed is the amount by which the tentative minimum tax liability exceeds the regular tax liability. The tentative minimum tax liability is calculated by recomputing regular tax liability, first by adding back to taxable income tax preference items and by making certain adjustments in order to determine the alternative minimum taxable income (“AMTI”), then by applying the appropriate AMT rate to the amount by which AMTI exceeds the taxpayer’s exemption amount.
Under subsection 7(1.1), if certain conditions are met, the inclusion of the employment income benefit is deferred until the time that the shares are sold. In addition, there is a deduction equal to one-half of the inclusion if either the option strike price is equal to or greater than the fair market value of the share at the time of the grant (section 110(1)(d)) or if the shares acquired on exercise are held for a minimum two- year period before sale (paragraph 110(1)(d.1)). As the backdating scandal mainly involves public corporations, we do not consider the tax treatment of options issued by CCPCs further. Dividends must be declared before they are paid and once they are declared they cannot be rescinded. At year end, some taxpayers may wish to characterize cash withdrawals or other amounts as dividends for accounting or tax purposes.