September 18, 2006
The Future of Tax Shelters
Posted by Victor Fleischer

Claire Hill and Kristin Hickman have put together what promises to be a great conference at the University of Minnesota on The Future of Tax Shelters.  We've got a link to the conference site in the sidebar, and Paul Caron has more details here.

More after the jump.

I will be writing about the tax consequences of options backdating. I'll post more when I have a working draft.  One thing I'm discovering is that the practices were more varied and more complicated than you might think from reading the Brocade and Comverse complaints.  A few research blegs:

1.  How much of options backdating was true backdating, and how much was what I'll call "as of' dating (i.e. where the grant was agreed on but papered just a bit later). 

2.  How did people "get comfortable" with the tax issues?  Or was tax just ignored?

3.  Was outside counsel ever involved?  Did anyone actually offer an opinion that backdating was okay under either 162(m) or 422? 

4.  Do privately-held companies ever backdate options?  If so, why? 

Any comments, reports, suggestions or ideas, on or off-line, would be most welcomed.

My understanding is that the tax noncompliance here was simply collateral fallout from the accounting gamesmanship, and that both spring from corporate cultures where regulatory gamesmanship is embraced.   But the story is a complicated one, with an awful lot of variance from company to company.   

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