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Stock options give employees the option to buy stock at a predetermined price.
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, intentional backdating that coincides with low underlying stock prices and an accounting report that claims the contracts to have been issued on those low dates as “at the money” – rather than “in the money” – contracts has resulted in the SEC’s public view that backdating could be considered fraudulent.
While options backdating has been used to enhance or increase the value of options contracts while reaping the tax benefits of having issued “at the money” contracts, the practice is also frequently necessary in order to accommodate situations in which lengthy issuance procedures or corporate policies require more than one day to complete an approval process, thus showing an earlier issue date than that on which the contracts are actually issued.
To avoid having to pay higher taxes, many companies adopted a policy of issuing “at the money” stock options in lieu of additional income, with the idea that the executive or employee would benefit through the option by working to increase the value of the company without exceeding the one million dollar deductibility cap for executive income.Although public opinion and media focus tend to portray largely negative sentiments toward backdating, the legal line that separates acceptable backdating from criminal backdating has yet to be fully understood and legally defined.Many backdating supporters point to Apple CEO Steve Jobs as an example of backdating that was not considered to be a criminal action in a court of law, yet when the same behavior is exhibited by another CEO, questions of criminal activity and executive corruption still arise.When company executives discovered that they had the ability to backdate stock option grants, thus making them both tax deductible and “in the money” on the date of actual issuance, the common practice of stock option backdating for financial gain began on a widespread level.The problem with this practice, according to the SEC, was that stock option backdating, while difficult to prove, could be considered a criminal act.