How Does Section 83(b) Affect Incentive Compensation Granted by LLCs Taxed as Corporations?

Welcome back to our series! We’re thrilled that you’re joining us for this fourteenth installment, a testament to your ongoing commitment to deepening your understanding of incentive compensation. Today, we’re venturing into the realm of tax law, specifically focusing on Section 83(b) and its influence on incentive compensation within LLCs that are taxed as corporations. Ready to untangle the complexities of taxation and its impact on incentives? Let’s dive in!

An Overview of Section 83 of the Internal Revenue Code

Delving into Section 83 of the Internal Revenue Code, we find rules that outline how property transferred in connection with the performance of services should be taxed. Imagine Section 83 as a key that opens the taxation door only when there’s a tangible transfer of property - specifically within incentive compensation.

In this realm, restricted stock and performance shares stand out as the key players. They are the chess pieces, if you will, that move across the board and can cause a tax event, due to the associated transfer of property. Interestingly, among these two, the pathway to restricted stock becomes our main focus. Performance shares, while important, often remain on the sidelines, as the uncertainty surrounding their earnings typically discourages team members from invoking Section 83(b) elections. So, restricted stock, our chess queen, remains in the spotlight for this discussion.

The Mechanics of Section 83(b) Election

Section 83(b) is a powerful tax tool, much like a magic wand granting flexibility to the service provider. Instead of waiting until the restricted stock vests—when restrictions lift and risk of forfeiture dwindles—they can elect to be taxed at the time of the grant. This election shapes when and how income is recognized.

So how does this work in practice? When a service provider chooses to use the 83(b) magic wand, they agree to settle any tax due now, at the time of the grant, rather than later, at vesting. For a startup where the stock value is negligible, this decision is a proverbial piece of cake, as no value equates to no tax.

But what if the stock's value increases between the time of the grant and vesting, and you've already paid tax on the initial, lower value? Or, what if you have to relinquish the stock for some reason? It's akin to purchasing a non-refundable ticket for a rock concert, and then being unable to attend due to unexpected circumstances. In tax terms, this is like making an 83(b) election, paying taxes upfront on non-transferable shares, but then having to forfeit the award. You're left with a lighter wallet, with no way to reclaim the paid taxes. Additionally, selling the underlying shares of a restricted stock award bears tax implications. The resulting capital gain or loss depends on the initial value at vesting if an 83(b) election wasn't made or at grant if an 83(b) election was indeed made.


We hope this article has been informative and useful for your business. If you have any questions or comments, please contact us at We plan to answer general questions in an upcoming FAQ series. If you need legal advice specific to your situation, please ask to schedule a consultation with an attorney to discuss your company’s goals.

We hope this exploration of Section 83(b) has brought you valuable insights. Tomorrow, we venture into the realm of Section 409A and how it influences incentive compensation within LLCs taxed as corporations - a topic that no company should overlook. Join us, won’t you?

This article is for informational purposes only and should not be relied upon as tax or legal advice. Please consult professionals for advice tailored to your specific situation. The author and publisher assume no responsibility for any errors or omissions or for any actions taken based on the information presented.