Posted: May 06, 2005 By: Coalition for Tax Fairness, Timothy J. Carlson President

Subject: Alternative Minimum Tax Treatment of Incentive Stock Options – A Crisis of Complexity and Unfairness

Comment: March 17, 2005
Tim CarlsonCoalition for Tax

TO: President’s Advisory Panel on Tax Reform
FROM: Timothy J. CarlsonPresidentCoalition for Tax Fairness
RE: Alternative Minimum Tax Treatment of Incentive Stock Options – A Crisis of Complexity and Unfairness


ORIGINATING FROM: The Coalition for Tax Fairness, a Non-Profit 501(c)4 Corporation

March 17, 2005
Tim CarlsonCoalition for Tax FairnessDirect Tel (301) 515 6584

TO: President’s Advisory Panel on Tax Reform
FROM: Timothy J. CarlsonPresidentCoalition for Tax Fairness
RE: Alternative Minimum Tax Treatment of Incentive Stock Options – A Crisis of Complexity and Unfairness

Americans Being Destroyed by 300% Tax Rates

The Problem: Tens of thousands of hardworking Americans are being financially destroyed by tax rates exceeding 100% – and reaching as high as 500% or more - of their entire income. These Americans belong to the hardworking, entrepreneurial group of workers that are the engines of the U.S. economy. They were caught in the “Perfect Storm” of events in early 2000, trapped by a complex, unintended anomaly in the tax code that subjected them to colossal taxes on phantom “income” they never will receive. Engineers and administrative assistants owe $200,000 or more, and mid-level executives owe $1,000,000 or more on stock on which they never saw financial gain. It is almost unbelievable this is happening in America.
The Irony: These Americans are being driven into bankruptcy and ruin as a result of:
n an element of their compensation, incentive stock options (ISOs), that was intended to reward their hard work, sacrifice, and investment in their company;
n their honesty in reporting a tax element on phantom gain, that the IRS cannot independently discover or track (those who didn’t report are paying nothing);
n their compliance with SEC insider trading laws and company ethics policies;
n their decision not to sell inflated stock and foist losses on the unsuspecting public;
n the AMT -- a tax provision that was intended to ensure the ultra-rich paid some tax;
n a tax provision that didn’t contemplate the effects of an economic meltdown.
The Tax Code Complexity and Resulting Unfairness: While one can argue that many provisions of the AMT create unfairness and undermine confidence in the tax system, by far the most severe and devastating impact to individual taxpayers has occurred as a result of the AMT treatment of incentive stock options. The complex interaction between the incentive provisions of the regular tax code and the prepayment provisions of the AMT code as applied to ISOs created a crisis of unfairness in the economic meltdown of 2000. Taxpayers who followed the incentives Congress put in place, worked hard and invested in their companies, and followed the law, are being forced to pay tens of thousands, hundreds of thousands, and even millions of dollars in taxes based on phantom income, literally ruining them financially.
In normal economic times, the ISO provisions of the regular tax code and AMT code interact awkwardly, but in general balance the competing incentive and prepayment goals. However, in the challenging economy of early 2000, the conflicting provisions became a volatile mix that trapped, destroyed and is continuing to destroy tens of thousands of American taxpayers and their families, impacting hundreds of thousands of people and hundreds of companies. The tax prepayment provisions of the AMT levied on phantom income are forcing taxpayers to make gargantuan, permanent interest-free loans to the government. Those who cannot sell other assets, or borrow by leveraging other assets, to fully pay these excessive taxes are driven to bankruptcy; many have quit working altogether as they face decades of what amounts to indentured servitude to the IRS; those who are working are having huge portions of their income taken by the IRS to prepay taxes they’ll never really owe; others have fled the country. All these significant tax overpayments create useless AMT “credits” that will never be recovered or returned in the taxpayer’s lifetime. People’s financial lives are destroyed, as they lose their homes, retirement accounts, education accounts and future income, solely to build up massive tax overpayments that trickle back a maximum of $3,000 per year.

Distortion of Business and Personal Decisions and Congressional Intent: Congress created incentive stock options as a tool for businesses to attract and retain talented employees, and to provide employees an incentive for long-term investment in companies. To that end, ISOs were not taxed upon exercise (unlike nonqualified stock options) and employees receive the long term capital gains rate if they hold the stock at least two years from date of grant and one year from date of exercise. The AMT, however, imposes a “prepayment tax” upon exercise that generates a credit offset on expected future gain. The critical failings of the current AMT model lie in the fact that (i) the AMT code did not contemplate the possibility of a major decline in stock value between exercise and the expiration of the ISO holding period, (ii) the AMT code did not provide for a proper “true up” of credits to actual tax owed upon sale, especially when the value at exercise greatly exceeds the value at sale, and (iii) the prepayment rate (28%) was not synchronized with the current capital gains rate (15%), forcing employees to generate overpayment credits even when the stock maintains its value between exercise and sale.
The inconsistencies of this provision of the current tax code is resulting in the following undesirable distortions of business and personal decisions:
n businesses have lost a key component of entrepreneurial incentive as employees are viewing ISOs as a “trap” rather than a reward for hard work and investment in their company. (In a Select Revenue Measures Hearing September 2004, Chairman Jim McCrery responded to Rep. Zoe Lofgren’s statements regarding this ISO AMT crisis by stating “incentive stock options [ ] are around in your district, but certainly everywhere across the country, that is a tool that companies can use and they want to use; and employees like it, so we ought not discourage the use of that through the tax treatment on the alternative minimum tax.”);
n employees who exercised incentive stock options in the past have virtually all their financial decisions distorted by ISO AMT, as they are borrowing and selling assets to prepay tax on money they never will have, quitting work because they cannot earn a living with the extent of wage garnishment from the IRS, and losing the retirement assets they worked their entire lifetime to acquire;
n employees who were able to pay their ISO AMT taxes and now have huge AMT credits, are spending thousands of dollars with accountants and financial advisors to try and manage their financial affairs to get some of these massive overpayments back in their lifetime;
n employees who have incentive stock options now are either not exercising them at all, or are exercising them and immediately selling to avoid being trapped and financially destroyed – just the opposite of what Congress intends;
n employees who receive incentive stock options do not view them as a benefit and encouragement to build value in their company, but rather as a dangerous trap that should be either never exercised at all or sold immediately upon exercise;
n the IRS is spending tremendous resources fighting taxpayers in offers in compromise, Tax Court, District Court and Bankruptcy Court in attempts to collect unfair and excessive taxes from people who have no money with which to pay the disproportional tax; this is neither an efficient use of resources, nor is it right.
The Critical Need for an Immediate Solution: This crisis began for many taxpayers in 1999. Those honest taxpayers who reported their ISO AMT “income” and trusted in the system to work to bring about some measure of fairness, have been sorely disappointed. The IRS has refused to grant any offer in compromise unless it is based on “inability to pay,” meaning that hardworking Americans trapped by this unintended result are losing everything they have ever worked for their entire lives – and also having their future wages garnished. These Americans are being treated as tax dodgers or tax avoiders, in spite of having overpaid tens, hundreds of thousands, and millions of dollars in taxes.
After four years of struggle, the appeal process for these taxpayers is now coming to a close, and these hardworking Americans are on the brink of financial ruin. If immediate action is not taken this year in 2005, the solution will come to late to prevent loss of homes, retirement savings, education accounts – all due to an unexpected and unintended result of a complex tax code applied to an unprecedented time of economic crisis.
These Americans Deserve Fair and Just Treatment: These Americans have worked hard and lost everything. They are not asking for a return of the value they lost – they are merely asking not to be destroyed by being unfairly taxed on money they never received. They have waited more than four years for relief, borrowing money to prepay taxes on phantom income, paying high interest rates so they can lend that money interest-free to the IRS, following the laws and working within the system to try to bring about justice, all the while facing imminent financial ruin. This issue has been highlighted as a critical taxpayer issue in the following venues:
n The June 2004 Ways and Means Oversight Subcommittee Hearing
n The September 2004 Select Revenue Measures Subcommittee Hearing
n The National Taxpayer Advocates 2002, 2003 and 2004 Reports to Congress
n Numerous Bi-partisan House and Senate Bills in the 107th and 108th Congresses
n Countless magazine articles over the last four years
n CBS Broadcasts the last two years highlighting the Speltz family from Iowa, (destroyed by an over $200,000 ISO AMT tax bill on stock sold for a loss).

The Coalition for Tax Fairness urges this Tax Panel to support much needed immediate relief for these American taxpayers trapped by a complex tax provision and subjected to an unintended, devastating, and unfair effect of the AMT treatment of incentive stock options.