As a general rule, if you acquire an interest under an employee share scheme (ESS) you will be taxed on any discount at your marginal rate of tax. However, an exception applies if the scheme qualifies for concessional treatment, such as the tax deferral scheme which defers the taxing point to a future point in time.
What is a discount?
A ‘discount’ exists if you pay less for the ESS interest than its market value at the time of acquisition.
If there is no ‘discount’, then you do not need to worry about deferring the tax.
If there is a ‘discount’, you must pay tax on it, even if you have not yet received any benefit from the ESS.
For this reason, the Income Tax Assessment Act 1997 (Cth) (Tax Act) lets you defer the calculation of the discount and the taxing point.
- calculation of the discount; and
- the point in time at which you are required to pay tax in relation to the ESS interest.
Before deferring tax on your ESS interest, check if other concessions reduce the discount to nil. For instance, you may qualify for the start-up concession, which we discuss in our Guide to the ESS Start-Up Concession.
How do I qualify for the tax deferral scheme?
If you have a discount that is not reduced to nil by any other concessions, you will either have to:
- pay tax at the time you acquire the ESS interest; or
- qualify for deferral of that tax.
What you must do to qualify for deferral depends on the ESS interest you acquire (shares or options).
If the ESS interest is a share
Where the ESS interest is a share, the ESS must satisfy the following criteria in order for you to qualify for tax deferral:
- the ESS interests granted must be ordinary class shares;
- the company in which you get the shares must not be a share trader or investment company; and
- you, together with your associates, must not hold, or have the right to acquire, more than 10% of the shares in the company or control the exercise of more than 10% of the votes in the company;
- at least 75% of permanent Australian employees with 3 years’ service must be entitled to acquire shares under the scheme;
- you must not be able to dispose of the shares for a minimum of either 3 years from the time you acquire them, or when you cease your employment with the company;
- either there is a real risk that, as a result of the scheme conditions, you will forfeit or lose the shares (other than by disposing of them) or the shares are acquired under a qualifying ‘salary sacrifice arrangement’.
The concept of a ‘real risk’ of forfeiture can be difficult to understand. The policy requires you to perform to a certain standard or remain employed for a material period, justifying tax deferral.
If the ESS interest is an option
Where the ESS interest is an option to acquire a share, the scheme must satisfy the following criteria in order for you to qualify for tax deferral:
- the ESS interests granted must be rights to acquire ordinary class shares;
- the company in which you get the options must not be a share trader or investment company;
- you, together with your associates, must not hold, or have the right to acquire more than 10% of the shares in the company or control the exercise of more than 10% of the votes in the company;
- the options must be non-transferable; and
- either there must be a real risk that, as a result of the scheme conditions, you will forfeit or lose the options (other than by disposing of or exercising them) or the company must explicitly elect within the ESS that deferred taxation applies pursuant to Subdivision 83A-C of the Tax Act to all holders of options under the scheme.
When does the deferral come to an end?
If you qualify for tax deferral, the end depends on whether the ESS interest is a share or option.
If the ESS interest is a share
Where the ESS interest is a share, the discount will be calculated and become taxable at the earlier of when:
- you dispose of the share;
- you are no longer subject to a real risk of forfeiting the share and the restrictions on your ability to dispose of the share are lifted;
- when you cease employment with your employer; and
- 15 years from when you first acquired the share.
If the ESS interest is an option
Where the ESS interest is an option, the discount will be calculated and become taxable at the earlier of when:
- you dispose of the option;
- if you have not exercised the option, you are no longer subject to a real risk of forfeiting the option and the restrictions on your ability to dispose of the option are first lifted;
- if you have exercised the option, the share is no longer subject to a real risk of forfeiture and the share is not subject to a disposal restriction;
- when you cease employment with your employer; and
- 15 years from when you first acquired the option.
For further information on how we can support you with employee share scheme advice and structuring, visit our Employee Share Schemes page.