Section of Taxation
Submission to the Internal Revenue Service

Comments Concerning FSA 199926034:
FICA Liability for ESPPs

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The following comments are the individual views of the members of the Section of Taxation who prepared them and do not represent the position of the American Bar Association or the Section of Taxation.

These comments were prepared by individual members of the Executive Compensation Subcommittee of the Employee Benefits Committee of the Section of Taxation. Principal responsibility was exercised by Wayne R. Luepker. The Comments were reviewed by Dan Morgan of the Employment Tax Section and by Diane J. Fuchs, Chair of the Committee on Employee Benefits. They were also reviewed by Ronald Rizzo of the Section’s Committee on Government Submissions and by Stuart M. Lewis, Council Director for the Committee on Employee Benefits.

Although many of the members of the Section of Taxation who participated in preparing these Comments have clients who would be affected by the federal tax principles addressed by these Comments or have advised clients on the application of such principles, no such member (or the firm or organization to which such member belongs) has been engaged by a client to make a government submission with respect to, or otherwise to influence the development or outcome of, the specific subject matter of these Comments.

Contact Person:

Wayne R. Luepker
(312) 701-7197
wluepker@mayerbrown.com

Date: May 2001


Contents

Executive Summary
Comments
1. Income Tax Treatment of Options
(a) NSOs
(b) ISOs
(c) ESPPs
2. Employment Tax Obligation
(a) General
(b) NSOs
(c) Rev. Rul. 71-52
3. Discussion of FSA Position
(a) General
(b) Rev. Rul. 71-52 Holdings Should Apply to ISOs and ESPPs
(c) Sun Microsystems Does Not Discredit Rev. Rul. 71-52
(d) Establishment of Withholding Obligation Through FSA Is Inappropriate
(e) Policy Reasons Also Support Exemption from FICA and FUTA for ISOs and ESPP Options
(f) Application of FICA Taxes to ISOs and ESPP Options Should Not Be Retroactive

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