close

For more than four decades, Fenwick & West LLP has helped some of the world’s most recognized companies become, and remain, market leaders. From emerging enterprises to large public corporations, our clients are leaders in the technology, life sciences and cleantech sectors and are fundamentally changing the world through rapid innovation.  MORE >

Fenwick & West was founded in 1972 in the heart of Silicon Valley—before “Silicon Valley” existed—by four visionary lawyers who left a top-tier New York law firm to pursue their shared belief that technology would revolutionize the business world and to pioneer the legal work for those technological innovations. In order to be most effective, they decided they needed to move to a location close to primary research and technology development. These four attorneys opened their first office in downtown Palo Alto, and Fenwick became one of the first technology law firms in the world.  MORE >

From our founding in 1972, Fenwick has been committed to promoting diversity and inclusion both within our firm and throughout the legal profession. For almost four decades, the firm has actively promoted an open and inclusive work environment and committed significant resources towards improving our diversity efforts at every level.  MORE >

At Fenwick, we are proud of our commitment to the community and to our culture of making a difference in the lives of individuals and organizations in the communities where we live and work. We recognize that providing legal services is not only an essential part of our professional responsibility, but also an excellent opportunity for our attorneys to gain valuable practical experience, learn new areas of the law and contribute to the community.  MORE >

Year after year, Fenwick & West is honored for excellence in the legal profession. Many of our attorneys are recognized as leaders in their respective fields, and our Corporate, Tax, Litigation and Intellectual Property Practice Groups consistently receive top national and international rankings, including:

  • Named Technology Group of the Year by Law360
  • Ranked #1 in the Americas for number of technology deals in 2015 by Mergermarket
  • Nearly 20 percent of Fenwick partners are ranked by Chambers
  • Consistently ranked among the top 10 law firms in the U.S. for diversity
  • Recognized as having top mentoring and pro bono programs by Euromoney

MORE >

We take sustainability very seriously at Fenwick. Like many of our clients, we are adopting policies that reduce consumption and waste, and improve efficiency. By using technologies developed by a number of our cleantech clients, we are at the forefront of implementing sustainable policies and practices that minimize environmental impact. In fact, Fenwick has earned recognition in several areas as one of the top US law firms for implementing sustainable business practices.  MORE >

At Fenwick, we have a passion for excellence and innovation that mirrors our client base. Our firm is making revolutionary changes to the practice of law through substantial investments in proprietary technology tools and processes—allowing us to deliver best-in-class legal services more effectively.   MORE >

Mountain View Office
Silicon Valley Center
801 California Street
Mountain View, CA 94041
650.988.8500

San Francisco Office
555 California Street
13th Floor
San Francisco, CA 94104
415.875.2300

Seattle Office
1191 Second Avenue
10th Floor
Seattle, WA 98101
206.389.4510

New York Office
1211 Avenue of the Americas
32nd Floor
New York, NY 10036
212.921.2001

Shanghai Office
Unit 908, 9/F, Kerry Parkside Office
No. 1155 Fang Dian Road
Pudong New Area, Shanghai 201204
P.R. China
+86 21 8017 1200


Tax Alert: IRS Program for Correcting Underwithholding of 409A Taxes on "Backdated Options"

The Program

The IRS has announced a voluntary correction program (the "Program") that employers can use to correct underwithholding of certain taxes incurred from the exercise in 2006 of "backdated options." The employer may pay the underwithheld federal taxes (described below) and the additional income and employment taxes on those tax payments (the additional tax payments are commonly referred to as a "gross-up") on behalf of the employees affected. If the employer completes the Program, then the employee and the employer are relieved of any penalties the IRS might impose for underwithholding of these taxes. Further, if the W-2 issued to the employee did not already reflect the effect of these taxes, then the employer also will not need to issue a corrected W-2. Participation in the Program does not reduce the amount of any tax owed.

Eligibility Limited to Certain Options and Relief Limited to Certain Taxes

  • No eligibility for stock options exercised by a person who was subject to the reporting requirements of Section 16(a) of the Securities Exchange Act of 1934 at either: (i) the time of entry in the Program, or (ii) the time of option grant.
  • Relief is limited only to the taxes imposed by Section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A"), and only with respect to option exercises in 2006.

Timelines for Action

  • The deadline for entering this voluntary compliance program is February 28, 2007.
  • Employees for whom the correction is being made must be notified within 15 days after entry into the program, and the IRS must be notified of the identities of these employees within the same 15 days.
  • The employer must pay all the taxes and interest due by June 30, 2007.
  • The employer must deliver an additional notice to employees by July 15, 2007.

"Grossing Up" Will Be Additional Income to Employees

Employers must report any gross-up payments as additional income received by the employee in 2007, and must timely withhold and remit an additional amount to the IRS (and any applicable state tax authority) in satisfaction of the tax withholding obligation with respect to the gross-up payments.

Unexercised Options Remain Subject to Section 409A

Some unexercised "backdated options" are eligible for remedial upward adjustment of their exercise price to make them no longer subject to the additional taxes imposed by Section 409A. Such amendments must be made by December 31, 2007. If not timely amended, then these options will remain subject to the additional taxes imposed by Section 409A and the employer will be required to timely withhold these taxes and comply with the W-2 reporting requirements. It is unlikely that the IRS will extend the Program to apply to exercises in 2007 or later years.

For further information, please contact:

Scott P. Spector, Partner, Corporate Group
sspector@fenwick.com, 650.335.7251

Blake W. Martell, Partner, Corporate Group
bmartell@fenwick.com, 650.335.7606

Tahir J. Naim, Associate, Corporate Group
tnaim@fenwick.com, 650.335.7326


This update is intended by Fenwick & West LLP to summarize recent developments in the law. It is not intended, and should not be regarded, as legal advice. Readers who have particular questions about these issues should seek advice of counsel.

© 2007 Fenwick & West LLP. All Rights Reserved.​​​​​​​​​​