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ESOP from Nasdaq listed US Company

NKarania (Senior Manager) (24 Points)

12 August 2010

Hi Gurus,

I work for a company called "ABC" here in India. ABC is headquartered in California and listed on Nasdaq. They have regional HQ is Singapore for India.

They have recently started operations in India through a liason office. The liason office is for the Singapore entity, which is full owned subsidary of ABC.

I would like to know if I can get company shares under ESOP and what is tax liability on me and my company. As per company norms, I am eligible for ESOP.

Regards,

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2 Replies

Debasis (MBA(Finance) student>>CS) (86 Points)
Replied 18 August 2010

No, this is not taxable as salary. And it will not be taxed as capital gains.

A CASE LAW

The assessee, an employee of Johnson & Johnson (“J&J”) India, received from J&J, USA, on 12.7.1989 a “cashless” option to buy 2500 shares at the then prevailing market price of $ 57.88 per share. The options were exercisable in installments over 10 years starting 11.7.1991. On 13.8.1992 (AY 1993-94), the assessee ‘sold’ the options and made a gain of5,44,925. The AO held that the said gain was assessable in AY 1993-94 as either salary, short-term capital gain or speculation profit. On appeal, the CIT (A) held that the ‘shares’ obtained under the ESOP were a capital asset and as they were held for less than 3 years, the gain was assessable as a STCG. He rejected the argument that as there was no ‘cost of acquisition’, the capital gains were not assessable. On further appeal, HELD, allowing the appeal:

(i) As the CIT (A) had held that the shares acquired under ESOP amounted to acquisition of a capital asset, one had to proceed on that premise;

(ii) In granting approval to the ESOP, the RBI had stipulated that no payment could be made while exercising the right to purchase shares. Accordingly, there was no “cost of acquisition” and in accordance with B. C. Srinivasa Setty 128 ITR 294 (SC), the gains could not be taxed;

(iii) Even if it is assumed that the market value of the share is the benefit given to the assessee, such benefit can be said to accrue to the assessee only on the date of exercise of the option. As the date of exercise of the option as well as the date of sale is the same, there was no difference between the “deemed cost of acquisition” and the actual price realized by the assessee and thus there was no taxable gain.

This is an Extract from www.taxguru.in......

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Ramalingam K (Founder & Director - Holistic Investment Planners (P) Limited) (21077 Points)
Replied 14 May 2014

A new way to do tax planning and why hardly anyone “gets it”

It really hurts to see a large pie of the salary cut towards tax. So the obvious question in everyone’s mind is ‘How do I reduce my tax?’.

Every year we are forced to invest in something which reduces our tax liability. It may be NSC…it may be PPF…it may be ulip…it may be Mutual Fund ELSS.