Section 83(b) of the Internal Revenue Code (IRC) enables recipients of restricted securities (including stock options) to potentially lower their tax burden by paying taxes on the total FMV of the award at the time of issuance ( early exercising). Employees and founders must file an 83(b) election form with the IRS to get this favorable tax treatment. Filing an 83(b) election is a complicated, multi-step process — but we’re working to make that better.
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When a company grants you an equity award, you usually can’t exercise the award until it vests. And if you have a typical four-year vesting schedule, the value of your equity may increase significantly over that time. By the time you can exercise, it could cost you a lot more if you owe higher taxes resulting from the increased value of your equity.
But some companies allow employees to exercise their equity early—before it vests and while the value is lower—allowing for potential tax savings in the future. Here’s the catch: If your company offers early exercising and you purchase your equity before it vests, you must inform the IRS by filing an 83(b) election. Otherwise, it’s as if the early exercise never happened (from a tax perspective).
Note: This information is a general overview of how the 83(b) election works. Exercising stock options carries the risk that the shares will not increase in value and may not be worth anything. Talk to a tax advisor before making decisions about whether to file.
The benefits of filing an 83(b)
The tax impact of exercising stock options can keep startup employees from unlocking the power of their equity. Not everyone has cash available to pay a hefty tax bill—and if you work for a private company, you may not be able to sell your shares for quite a while. A lower tax bill could make ownership possible for more employees.
Meanwhile, starting a company or joining at the very early stages involves taking a substantial risk. The possibility of a tax break can help motivate people to take that risk and build something new.
Tax implications of an 83(b) election
The tax implications of an 83(b) election vary by the type of equity you hold.
ISOs and NSOs
With these two types of stock options, you’ll file an 83(b) election if you decide to exercise your options early, before they’re fully vested. When you do, you’re basically accelerating the spread between the strike price of your options and their FMV. That means you’re not paying taxes on any potential rise in that spread as your shares continue to vest over time. If you don’t file the election, though, it’s as if your early exercise never happened.
If you have incentive stock options (ISOs) when you file an 83(b) election, the spread between the FMV and your exercise price is included as income for the alternative minimum tax (AMT). Without an 83(b), you may have to pay AMT on the spread between the strike price and the FMV as you continue to vest — instead of the spread at early exercise. This could potentially trigger the AMT or lead to a higher AMT.
If you have non-qualified stock options (NSOs), that same spread is income for ordinary income tax purposes. Failing to file 83(b) election will mean that you’ll be subject to a higher income tax rate if the FMV increases as your options vest.
With both types of stock options, if you hold your shares for a period of time before selling, you may be subject to lower tax rates when you sell. The earlier you exercise and hold your shares, the earlier those holding requirements kick in.
Founders and very early-stage employees often receive restricted stock awards (RSAs). The value of these can vary based on the company’s FMV, but they’re typically issued at a nominal value (like $0.001 or $0.0001 per share). This means that if you file an 83(b) election when you receive your RSAs, you’re likely to have very limited tax liability because you’re recognizing that spread (which is zero or very, very small) as ordinary income tax up front. When you eventually sell these shares, you’ll be subject to capital gains tax on the difference in FMV at the time of sale.
Without an 83(b) election, the spread between the FMV at vest less your purchase price would be subject to ordinary income tax.
Profits interests in an LLC or partnership
Profits interest units (PIUs) are a type of equity typically issued to employees in a limited liability company (LLC). They are a restricted share that gives the holder a right to a portion of the future value—typically of future profits or a sale—of the company under certain restrictions. When an 83(b) election is made, the tax advantage of PIUs is similar to that of ISOs issued from a C-corp.
Most LLCs require 83(b) elections to preserve the favorable tax status of profits interests. If PIUs are issued with an FMV of $0 (as they generally are), the recipient won’t pay taxes at the time this election is made. If an 83(b) election isn’t made within 30 days, the award could be taxed upon vesting—before the holder begins to realize any of the value of profits interest.
The 30-day 83(b) election deadline
If you exercise early and don’t make an 83(b) election within 30 days, you won’t get the tax benefit. So if the company’s valuation has increased and you haven’t filed an 83(b), you’ll pay more in taxes when your shares vest or you sell them in the future (depending on your grant type).
Beyond the liability for the employee or founder, this can also create tax issues for the issuing company.
How to file form 83(b)
To qualify for preferential tax treatment, your 83(b) election form must be postmarked and mailed to the appropriate IRS office within 30 days of purchasing your stock grant or the date of your early exercise.
The process for submitting this form has several steps, and can be burdensome. Here’s what the IRS requires:
A signed, completed 83(b) election form
A copy for the issuing company
It’s also common to include a cover letter for the IRS and two copies of the form with a stamped, self-addressed envelope, though it’s not required.
When you fill out the form, you’ll need to provide the following information:
Social security number (SSN)
Number of shares
Type of shares
Issuing company name
Date granted or purchased
FMV on the above date
Amount paid for shares
Your gross income
Until recently, you had to fill out the entire form and cover letter by hand, make the copies yourself, and mail them to the IRS and your company, keeping a copy for yourself. We noticed that the 83(b) election process was difficult for employees to manage, with many people unknowingly missing the deadline. So we set out to make it easier.
Sign your 83(b) election form electronically
The Carta policy team worked with a broad coalition of accelerators, law firms, and investors to get the IRS to temporarily allow an electronic signature for 83(b) filings during the COVID-19 pandemic. Currently, once the form is signed electronically, you still need to physically mail it to the IRS. We’re working with our coalition partners to expand this to full electronic filing of 83(b) elections, and to make the modernized process permanent when the limited relief ends on October 31, 2023.
How Carta helps employees auto-file 83(b) election forms for early exercise
If you’re an eligible employee and your company manages its equity through Carta, you can now auto-file an 83(b) with Carta. We’ll send the IRS copies along with the cover letter so you don’t have to. The copy for the issuing company and for your records are automatically on Carta.
Choose shares that are eligible for early exercise in Carta.If your company allows early exercise, you’ll be able to choose those shares within your Carta account.
Access the digital 83(b) election form.Once you have early-exercised an option grant, find the 83(b) tax form in the 83(b) elections tab of each exercised grant.At this point, you can choose to print out a form, fill it out and sign it, and send it yourself. Or you can have Carta help you. If so, you’ll keep going:
Fill out the form and provide a digital signature.If you want Carta to submit your form, you’ll need to make that selection no more than 25 days after you early-exercise your options to allow enough time for the IRS to receive the documents through the mail in the required timeframe.The electronic form saves you several steps. We pre-populate most of the information, so you can verify that it’s correct and provide your digital signature. We’ll also auto-generate a cover letter based on the information you’ve confirmed.
Submit your form for Carta to mail on your behalf.Once you’ve confirmed, complete the 83(b) workflow by clicking the “Save this 83(b) election” button at the bottom of the screen to provide a copy of the tax form to your company and let Carta know you’re ready for us to mail it to the IRS.
Track the form.From the 83(b) elections tab on the option grant modal, you can view the USPS tracking number and the submitted 83(b) form. We recommend entering the USPS tracking number on the USPS to access the mailing confirmation, and keeping the USPS mailing confirmation for your records.
How Carta helps founders auto-generate 83(b) election forms for early exercise
Founders can also take advantage of auto-generated forms on the Carta platform, making it easier than ever to file an 83(b) election. This new feature is automatically available for all founders on Carta who have been issued founder stock within the last 30 days when eligibility to file an 83(b) election is detected by Carta. We developed this tool to help founders potentially reduce their tax obligations by timely filing an 83(b) election. Carta automatically generates the 83(b) form, provides instructions on how to file, and sends an email notification that includes your issuance date and days left to file.
After accepting a stock certificate in Carta, you’ll automatically receive an email notification and Carta will generate the 83(b) form.
Log-in to your Carta account, open the applicable certificate, and click the 83(b) elections tab to view the 83(b) election form.
Provide additional information, including your social security number and address within the Carta app. You can also choose to manually enter a different fair market value (FMV).
When your form is completed, you can download, print, and make additional edits.
Sign and date the completed form before mailing to the IRS.
Upload a signed copy of the form to Carta and add the date mailed.
Access a record of the filing anytime—conveniently saved in your Carta account.