What are the ESOP tax implications in Singapore?

While startups leverage ESOPs as a currency to attract and retain top talent, employees think of stock options as a potential incentive to boost personal wealth. HOWEVER, generating ESOP liquidity can be extremely difficult and cumbersome as several tax implications surround the issuing company and the grantees (employees). This blog brings all you need to know about ESOP-related tax payouts in the Singapore startup ecosystem. 
But hang on! Are you familiar with ESOPs? If not, read our comprehensive ESOP dictionary to get familiar with the key terminologies of ESOPs. Here are a few terminologies that are necessary to understand this blog:   

• Exercise Period: After vesting, the employee earns the right to buy the ESOPs granted to them. However, the employee can buy those shares only during a certain period of time. This is the exercise period.
• Exercise Price: Exercise price is the price at which the employee buys the shares. This price is, in most cases, lower than the prevailing FMV (Fair Market Value) of the share.

Calculating the tax on ESOPs 

When it comes to calculating the tax on ESOPs, a lot of parameters enter the equation. In Singapore, taxes on ESOPs are levied at one instance – only at the time of exercise or when the selling restriction of the ESOP is lifted. An employee who the employer grants share options will be taxed on any gains or profits arising from the exercise of the share option. For gains arising from an ESOP with no selling restriction, tax is levied when options are exercised. And, ESOPs with selling restrictions are taxed only in the year in which the restriction is lifted. 
If the open market value of the stock option is more than the exercise price, the difference between both is considered a gain for employees. This gain exceeds the standard remuneration of the employee and is hence taxable. 
Note: Open market value is the intrinsic value of an asset. It depends highly on the market forces of supply and demand. This value fluctuates over time and is very dynamic in nature.

In terms of a mathematical formula,
Taxable Amount = (Open Market Value – Exercise Price) X Total No. of ESOPs
The taxable amount is then subjected to the applicable tax rate for the employee  
ESOP Tax = Taxable Amount X Applicable Tax Rate
The applicable tax rate depends on the standard remuneration of the employee and lies in the range of 0 to 22% 
Example:
Lee has 1000 stock options in a startup ‘Herbilitie’ at an exercise price of $1 each. Lee has two options now. At the time of exercise, if the open market value of each share is $5 and the tax rate applicable to Lee’s stock options is 20%:
Tax = ((5 – 1) X 1000) * 20% = $800

Tax on ESOPs for Foreign Employees:

If an employee is granted ESOPs during overseas employment, the gains derived are not regarded as income in Singapore and are therefore not taxable in Singapore. In such cases, the double taxation avoidance agreement – between Singapore and the country in which the employee was granted ESOPs – is referred for ESOP tax calculation.

However, if ESOPs are granted to the employee in Singapore, two rules are applicable: 

• Deemed Exercise Rule: The deemed exercise rule applies to ESOPs granted on or after 1st Jan 2003 to foreign nationals employed in Singapore. When their employment ends, employees might have some unexercised ESOPs. The final gains from unexercised ESOPs are deemed to be income derived by the employee one month before the date of cessation of employment or the date on which the monetary benefit is granted, whichever is later. Foreign employees are deemed to have derived a final gain when their employment ceases, and they have either of the following: 
  • Unexercised ESOPs;
  • Restricted ESOPs where the moratorium has not been lifted
• Tracking Option Rule: An alternative to the deemed exercise rule, the tracking options rule allows the employer to track the time when the foreign employee realizes gain from ESOPs. The employer then reports the gain to the government. The events that are tracked are: 
  • Exercise of unexercised ESOPs 
  • Restricted ESOPs where the moratorium is lifted

Note: 

• The deemed exercise rule is not applicable if the employer has been approved to adopt the tracking option rule.

• ESOPs are taxed when the employee leaves Singapore for a period of more than 3 months, no matter the reason. 

Employee Remuneration Incentive Scheme (ERIS) for startups

Equity Remuneration Incentive Scheme or ERIS applies only to stock options granted from 16 Feb 2008 to 15 Feb 2013 (both dates inclusive), provided the grant date is within the first three years of the company’s incorporation.
ERIS provides tax incentives to employees who derive gains from ESOP plans granted by their employers. Through ERIS, employees can enjoy up to a tax exemption of 75% of the gains arising from ESOP plans. Tax can be exempted over a period of ten years, subject to qualifying criteria. The accumulative gains on which the tax exemption applies are limited to $10 M over the ten-year period, and the gains must be derived on or before 31 Dec 2023.

ESOP tax deferment option

Employees can choose to defer the payment of tax (subject to an interest charge) on the gains from ESOP for any period of time up to a maximum of 5 years. Conditions for ESOP tax deferment:

• For ESOPs with a staggered vesting period, only the proportion of shares that have not vested 
• At the time the ESOP is granted, the employee must still be working in Singapore
• The employee (who receives the share option) must be someone who:
  • is not bankrupt
  • does not have a poor tax-paying record
  • possesses a tax of more than $200 on ESOP gains
  • has not been granted area representative status, and
  • is eligible to settle tax by installments under current tax rules

Click here for a blog on the tax outgo of ESOPs in Indian markets.