Tax implications on exercise of ESOPs often render them less than useful. Budget 2020 changes this by deferring the tax liability.
When employees exercised their employee stock options (ESOPs) and collected shares, they were, until recently, subjected to income tax (30%+) on the entire value of the shares (less price paid for exercise). These startup shares, often illiquid, could potentially be worth something in the future (or not), but the tax is certain and immediate. Amendments in the Budget in 2020, have neutralised the sting. The Budget  announced a slew of measures for the benefit of the Indian start-up sector. As part of that, the Government deferred the payment of income tax on ESOPs from the time of exercise of ESOPs. Now, the tax liability arises within 14 days from any of the following events, whichever is the earliest:
- after the expiry of 48 months from the end of the relevant assessment year; or
- from the date of the sale of such ESOP shares by the assessee; or
- from the date of the taxpayer ceasing to be an employee of the ESOP allotting employer.
Liability for deducting tax at source (TDS) on the startup also stands deferred.
These benefits are available only for eligible startups. The eligibility criteria are:
- It is incorporated on or after the April 1st, 2016 but before April 1st, 2021;
- The total turnover of its business does not exceed twenty-five crore rupees in any of the previous years beginning on or after the April 1st, 2016 and ending on the March 31st, 2021; and
- It holds a certificate of eligible business from the Inter-Ministerial Board of certification as notified in the Official Gazette by the Central Government.
Startups which satisfy these criteria cumulatively will be eligible for the deferred ESOP tax payment benefit.
The newly introduced deference of tax payment on ESOPs will help start-ups attract and retain high-quality employees. The tax on ESOPs has been deferred now to such time when the employee is able to sell the exercised shares and pay tax from such proceeds. They have up to 48 months from the end of the assessment year when the ESOPs were exercised, to sell the shares. The sore point however is that this benefit ceases when the employee decides to change jobs. This would mean that the employee has to pay from her pocket or allow the options to lapse. The problem remains for employees who decide to change jobs. But, overall, this is a welcome change.
This piece has been authored by Janarth Visvanathan, Associate, with inputs from Anirudh Rastogi, Managing Partner at Ikigai Law.
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 Finance Act 2020.
 Section 156 (2), Income Tax Act, 1961.
 Section 80-IAC, Income Tax Act 1961.