Why Should You File a “Section 83(b) election”?
cooleygo_admin Matthew Bartus Partner
Many founders come to us with questions about Section 83(b) elections. They have often heard in startup circles that they need to file these, but may not understand when it makes sense to do so or what problem the Section 83(b) election solves.
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Cooley GO
Many founders come to us with questions about Section 83(b) elections. They have often heard in startup circles that they need to file these, but may not understand when it makes sense to do so or what problem the Section 83(b) election solves. This article seeks to clear up some of the confusion about Section 83(b) elections.

So what is a Section 83(b) election? It’s a letter you send to the Internal Revenue Service letting them know you’d like to be taxed on your equity, such as shares of restricted stock, on the date the equity was granted to you rather than on the date the equity vests. Put simply, it accelerates your ordinary income tax. Please note that Section 83(b) elections are applicable only for stock that is subject to vesting, since grants of fully vested stock will be taxed at the time of the grant.

A Little Background on Taxes

To provide some simple tax background, there are different types of tax rates. The maximum ordinary income tax rate in 2023 is 37%, whereas the maximum long-term capital gains rate in 2023 is 20%. Because the United States uses graduated tax rates (meaning the rates vary based on your income), you may actually be subject to lower rates. Also, additional taxes may apply to increase your total effective tax rate in certain circumstances. Generally, however, your long-term capital gains will be taxed at a lower rate than your ordinary income in each case.

Assuming you paid nothing for your restricted stock, you will be taxed on the value of your restricted stock as determined at grant (if a Section 83(b) election is filed), or at vesting (if no Section 83(b) election is filed), in each case at the applicable ordinary income tax rate. When you later sell your stock, assuming it’s been more than one year from the date of grant (if a Section 83(b) election is filed), or more than one year from the date of vesting (if no Section 83(b) election is filed), the additional gain will be taxed at the applicable long-term capital gains rate. Because the long-term capital gains rate will be lower, the goal here is to get as much of your gain as possible taxed using that rate, rather than the ordinary income tax rate.

Two Simple Examples

In each of the below examples, assume you receive 100,000 shares subject to vesting, worth $.01 per share at the time of grant, $1.00 per share at the time of vesting, and $5.00 per share when sold more than one year later. We’ll also assume you are subject to the maximum ordinary income tax rate and long-term capital gains rate. For simplicity, we will not discuss employment tax or state tax consequences.

Example 1 – 83(b) Election

In this example you timely file a Section 83(b) election within 30 days of the restricted stock grant, when your shares are worth $1,000. You pay ordinary income tax of $370 (i.e., $1,000 x 37%). Because you filed a Section 83(b) election, you do not have to pay tax when the stock vests, only on the sale. On the sale (which occurs more than one year after the date of grant) you recognize a taxable gain of $4.99 per share (not $5.00, because you get credit for the $.01 per share you already took into income), and pay additional tax of $99,800 (i.e., $499,000 x 20%). Your economic gain after tax? $399,830 (i.e., $500,000 minus $370 minus $99,800).

Example 2 – No 83(b) Election

In this example you do not file a Section 83(b) election. So you pay no tax at grant (because the shares are unvested), but instead recognize income of $100,000 when the shares vest and thus have ordinary income tax of $37,000. On the sale (which occurs more than one year after the date of vesting) you recognize a taxable gain of $4.00 per share (not $5.00, because you get credit for the $1.00 per share you already took into income), and pay additional tax of $80,000 (i.e., $400,000 x 20%). Your economic gain after tax? $383,000 (i.e., $500,000 minus $37,000 minus $80,000).

So in the above example, filing a Section 83(b) election would have saved you $16,830.

Filing a Section 83(b) election also has two other benefits. It would have prevented you from having a $37,000 tax hit when the stock vested, which may have been at a time you may not have had cash to pay the tax, and it also starts your long-term capital gains (and qualified small business stock) holding period clock earlier – meaning that you get the long-term capital gains rate as long as the sale of your shares occurs more than a year after grant, rather than a year after vesting (and, in the case of qualified small business stock, you can avoid federal tax entirely on some or all of your gain if the sale occurs more than five years after grant and certain other conditions are met). For more information on qualified small business stock, please see this article.

So, you may ask, “if Section 83(b) elections are so beneficial, why doesn’t everyone file one?” If you receive restricted stock worth a nominal amount, it virtually always makes sense to file one. However, what if instead of receiving 100,000 shares of restricted stock worth $.01 per share, you received 100,000 shares of restricted stock worth $1.00 per share? Filing a Section 83(b) election would immediately cause you tens of thousands of dollars of tax. And if the company subsequently fails, and in particular if it fails before your stock vests, or if you end up forfeiting unvested shares, you likely would have been economically better off to not have filed a Section 83(b) election.

Bottom line – discuss with your individual tax advisor, but remember that the filing must be made (if at all) within 30 days after the grant date of your restricted stock, as that is an absolute deadline that cannot be cured. And note that the grant date of your restricted stock is usually the date the board approves the grant, even if you don’t receive the restricted stock paperwork until later – so sometimes you need to act fast in making this decision and filing the correct paperwork.

Instructions for Filing a Section 83(b) Election

The instructions below are intended for individual US-based purchasers based on regulations issued in July 2016 and further updates by the IRS regarding the allowance of digital and electronic signatures. You should contact your tax professional to review your Section 83(b) election before filing with the IRS. Other purchasers, including corporate or trust purchasers, should contact legal and tax professionals licensed in their jurisdiction.

Please note that the election must be filed with the IRS within 30 days of the date of your restricted stock grant. Failure to file within that time will render the election void and you may recognize ordinary taxable income as your vesting restrictions lapse.

Make three copies of the completed and signed election form and one copy of the IRS cover letter. The signature on the election form may be a handwritten signature or an electronic or digital signature.

Send the completed and signed election form and cover letter, the copy of the cover letter, and a self-addressed stamped return envelope to the Internal Revenue Service Center where you would otherwise file your tax return. Even if an address for an Internal Revenue Service Center is already included in the forms below, it is your obligation to verify such address. This can be done by searching for the term “where to file” on www.irs.gov or by calling 1 (800) 829-1040. Sending the election via certified mail, requesting a return receipt, with the certified mail number written on the cover letter is also recommended. If you are signing the election form by hand, be sure to send the original signed form to the IRS. An 83(b) election will generally be considered timely filed if the completed election is placed in a properly addressed and stamped envelope and sent via certified U.S. mail and the certification date is on or before the 30-day deadline. Note that the IRS does not always respond with confirmation of receipt, but if the mailing was timely and properly sent as noted above, and you retain the certification and a copy of the election for your records, that generally provides sufficient evidence that the 83(b) election was timely filed.

Deliver one copy of the completed election form to the Company.

Applicable state law may require that you attach a copy of the completed election form to your state personal income tax return(s) when you file it for the year (assuming you file a state personal income tax return). Please consult your personal tax advisor(s) to determine whether or not a copy of this Section 83(b) election should be filed with your state personal income tax return(s).

Retain one copy of the completed election form for your personal permanent records.

Note: an additional copy of the completed election form must be delivered to the transferee (recipient) of the property if the service provider and the transferee are not the same person.