Introduction
An Employee Stock Option Plan ("ESOP") is an option granted to employees to acquire a certain number of shares allotted by the company, at a pre-determined price, at a future date. ESOPs are allotted only after fulfilment of certain conditions specified in the ESOP policy drafted by the company. The tax implications of issuing ESOPs are discussed below.
Tax Liability for Employees
The tax liability for ESOPs arises only in two circumstances:
1. When Shares are Allotted to the Employee
The difference between the Fair Market Value ("FMV") and the exercise price of the shares is called a perquisite. As per Rule 3(8) of the Income Tax Rules, 1962, where the shares allotted are of a listed company, the FMV is the average of the opening price and closing price. Where the shares allotted are of an unlisted company, the FMV is the value determined by a merchant banker registered with the Securities and Exchange Board of India ("SEBI"). When shares are allotted, the difference between the market value of the shares and the exercise price is taxed as a perquisite, and is considered part of income from salary. Tax liability arises only at the time of allotment of shares, and not when the option was granted to the employee.
2. When the Employee Sells the Shares Allotted to Them
Employees with ESOPs have the option to hold or sell them. When shares are sold, it attracts capital gains tax. Capital gains can be long-term or short-term, depending upon the period of holding, calculated from the date of allotment of the ESOPs.
In the case of a listed company, if shares are held for a period less than or equal to 12 months, the gains resulting from the sale of shares are short-term capital gains. Where shares are held for a period exceeding 12 months, the resulting gains are long-term capital gains.
In the case of an unlisted company, shares held for a period less than or equal to 24 months attract short-term capital gains on sale, while shares held for a period exceeding 24 months attract long-term capital gains.
Conclusion
ESOPs, being a great motivational tool for employees, also attract taxes depending on the holding period, type of company and other factors. A company issuing ESOPs has a good opportunity to encourage employees to stay with it for a longer period of time.
Disclaimer: The content of this article is intended to provide general guidance on the subject matter. Specialist advice should be sought about your specific circumstances.