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R. Klein, EA
R. Klein, EA, Enrolled Agent
Category: Tax
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Experience:  Over 20 Years experience
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Is there an 83b election attached to a founders stock

Customer Question

Christopher- is there an 83b election for warrants attached to a founders stock issuance? What about additional warrants issued to a founder over time to make up for dilution from future rounds of financing? How are these additional warrants taxed if there is or isn't a vesting schedule attached to the newly issued warrants?
Submitted: 10 months ago.
Category: Tax
Expert:  R. Klein, EA replied 10 months ago.

Thank you for your finance question today. I will work hard to get you the best and most accurate answer.

There is no such thing as an "83b election" for anything other than the original stock issuance. Warrants are a derivative security and are not considered the same as stock.

A warrant initially has no intrinsic value. It is a right to purchase stock or another security and in itself is not a stock.

Warrants are not taxed at issuance. They are similar to options in many ways. Ordinary income is realized when the warrant is exercised for the purchase of the company's stock, but not before. In an 83b election, actual stock is issued to the employee and the election defers most of the ordinary gain on acquisition to become a long term capital gain because the value is not yet fixed or calculatable.

When you exercise warrants to buy the underlying stock, you pay the stated strike price to the issuing company. The difference between the strike price and the price of a share, minus the cost basis, is taxable income. Suppose you exercise warrants with a strike price of $30 per share to buy 100 shares of XY Company and you originally paid $500 for the warrants. Your total investment is thus $3,500. If the market price on the day of exercise is $50, the stock is worth $5,000 and the difference is $1,500. This $1,500 is taxable as ordinary income in the year of exercise. It is not a capital gain because you did not own the shares prior to exercising the warrants.

I hope this clarifies the difference between a stock and a warrant for tax purposes on receipt of the security.

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