The Federal Government is currently receiving advice from various special interest groups on how best to amend the taxation rules applying to employee share schemes. Much of the recommendations received will be from bodies such as the CEO Trade Union (also known as the Business Council of Australia), the Corporate Tax Association and Australian Industry Group. These groups exist for the dominant reason of enriching executives. Unions will also propose submissions regarding the impact of the changes on lower level employees.

In the Federal Budget, Treasurer Wayne Swan announced that the taxation of employee share schemes will be altered. Instead of allowing a $1,000 tax break for all schemes, the $1,000 exemption would have been limited to employees earning less than $60,000.

It is this change which has for some reason enraged unions. However, the change made sense — why should certain employees able to receive a tax benefit simply because they work at a public company? Despite the resulting outrage, in the overall scheme of things, the tax exemption is virtually irrelevant, with the tax effect on each employee being less than $500. For those earning $70,000, the effect is a few hundred dollars.

The more significant change proposed in the Budget was to remove the ability for employees to choose whether they ‘prepay’ tax at the time of grant or defer tax until the equity instrument is exercised. Under the scrapped proposal, employees would have been required to prepay tax based on the ‘accounting value’ of the instrument at the time of grant. It was this move which raised the ire of the likes of the BCA, which claimed that it was manifestly unfair to tax employees for ‘unearned income’. The major intention of the proposed changes was to prevent widespread tax evasion which had been occurring. An ATO audit of 1,300 top executives recently revealed that almost 10 percent under-reported income from share grants.

While the Government is to be applauded for removing the ability for employees to evade taxation of granted equity, as tax lawyer, Andrew Carter percipiently noted in Crikey on Tuesday, “the Government’s first action should have been to make companies mandatorily report this information in the same way that salary and wages are reported: on a group certificate. Additionally, withholding — again, akin to how tax is withheld from salary and wages — could have been implemented.” This is a similar method to what is used in the US and UK.

The most significant problem with the proposed laws though, was that they may have inadvertently benefited executives by allowing them to continue to (legally) minimise tax paid on income — largely through accounting chicanery and the magic of concessional capital gains tax.

The largest mistruth told by opponents of the Federal Government’s changes is that the new laws are unfair because they require the employee to prepay tax at their marginal rate (effectively creating an unfair burden on the taxpayer who is not able to sell the equity granted to cover the tax liability). However, while this may be somewhat accurate in a technical sense, in reality, the tax paid upfront is minimal. That is because tax is paid on the ‘accounting value’ of the instrument, not its ‘actual realised’ value.

The Income Tax Assessment Act is exceptionally confusing but according to Schedule 139FN, the provides that the “market value” of any equity right ranges from 7.8 percent to 24.7 percent of its exercise price. The employee is then only required to prepay tax on that “market value” at their marginal rate of tax. Therefore, even an executive earning $30 million would only be required to ‘prepay’ tax at a rate of between 3 and 12% depending on the number of months until the instrument can be exercised. (Further, under the prepayment regime, when the shares are eventually sold, the employee is eligible to receive a 50% discount on capital gains tax payable). For all the incessant complaining by the BCA and Corporate Tax Association about taxation without benefit, the actual tax paid is so small the argument was in reality, virtually moot.

The reality of prepayment discount was best evidenced by transport company, Toll Holdings, last year when it ‘paid out’ options held by senior executives Paul Little and Neil Chatfield after the company’s de-merger from Asciano. When Toll “paid out” Little and Chatfield’s options (which had not yet vested and were not well ‘out-of-the-money’), the company grossed up the value of the options to $8.8 million, in doing so, Toll assumed a total tax rate payable of approximately 26%. Despite Little earning $13.4 million in 2007, Toll effectively assumed that he would pre-pay income tax of around 3% on his multi-million dollar options plan.

What should the Government do? For a start, on moral grounds, the $1,000 tax break provided for employee share schemes should be removed entirely. There is no reason why taxpayers who work at businesses (such as private firms or not-for-profit organisations) who are not practically able to receive equity should be bankrolling the taxation of those who work at public companies. However, given the sums involved, the Labor Government will not squander political capital on a move which will anger unions.

More importantly, the Government may better advised to simply remove the maligned “pre-payment” option and compel employers to mandatorily withhold tax at the time of vesting. Critically, the Federal Government must also remove the ability for employees to claim a CGT discount on the subsequent capital appreciation value of shares issued (unless the employee paid a market price to exercise the shares). For example, if the employee shares are issued by way of zero-price options or their employer pays a sum to cancel the instrument, the CGT discount should not be able to be claimed.

The fairness problems associated with equity grants largely stem from tax evasion and the ability for wealthy executives to pay less tax than average workers — imposing a withholding regime and removing the CGT concessions for equity grants will go a long way to reducing those foibles.

Peter Fray

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