Valuation

[Randy Watson]

Is there no longer a 409A message board?

Anyway, as everyone knows statutory stock options under Section 422 are excluded from the reaches of Section 409A. What I'm not so sure about is whether you have to use a 409A valuation method to keep those statutory options out of 409A or whether you can still use the Section 422 regs to value the stock. The following paragraph from the preamble seems to contradict itself:

"Several commentators expressed concerns regarding the determination of the fair market value of the underlying stock. Some commentators requested that the valuation rules applicable to incentive stock options be applied for purposes of the exclusion from section 409A. Under those rules, if the stock option would otherwise fail to be an incentive stock option solely because the exercise price was less than the fair market value of the underlying stock as of the date of grant, generally the option is treated as an incentive stock option if the issuer attempted in good faith to set the exercise price at fair market value. See section 422©(1). The Treasury Department and the IRS believe that this is not the appropriate standard for determining whether stock rights are subject to section 409A. Incentive stock options are subject to strict limitations on the amount of such options that may be granted to a particular employee. See section 422(d). In contrast, there are no such limits applicable to nonstatutory stock options, and grants of nonstatutory stock options often far exceed the limitation applicable to incentive stock options. In addition, section 422©(1) explicitly provides for the good faith standard with respect to incentive stock options, while no such provisions exist within section 409A or its legislative history."

[Dave Baker]

Is there no longer a 409A message board?

Yes, but it and several other message boards are under "Employee Benefits in General" now.

Should it be its own board, separate from this nonqualified deferred comp message board?

[Randy Watson]

I didn't realize it moved. I'm used to seeing it near the top of the Retirement Plans board and when it wasn't there I thought you eliminated it. Since 409A is not limited to retirement it makes sense to have it on on the General board. However, someone new to the board with a 409A issue might skim down and stop on this nonqualified deferred comp board. Just a thought....I don't care where it is as long as I know it's still here.