What Counts as "Equity" for Services?
Understanding stock, options, RSUs, LLC units, profits interests, and phantom equity
Overview
What is Equity Compensation?
Equity compensation allows service providers (employees, contractors, advisors, co-founders) to receive ownership stakes instead of or in addition to cash payment. The "equity" can take many forms depending on the entity type, tax goals, and relationship between the parties.
Corporation Equity Types
- Common Stock (restricted or unrestricted)
- Incentive Stock Options (ISOs)
- Non-Qualified Stock Options (NSOs)
- Restricted Stock Units (RSUs)
- Phantom Stock / SARs
LLC Equity Types
- Capital Membership Units
- Profits Interests
- Incentive Units
- Phantom Units / Unit Appreciation Rights
Key Considerations
- Tax treatment at grant, vest, and sale
- Voting and governance rights
- Transfer restrictions
- Dilution and anti-dilution
- Vesting schedules
Stock (Restricted & Common)
Common Stock
Common stock represents actual ownership in a corporation. When granted for services, the recipient becomes a shareholder immediately (subject to vesting).
Rights Included
- Voting rights (typically)
- Dividend rights (if declared)
- Residual claim on assets
- Information rights (varies)
Tax Treatment
- Taxable at FMV on grant (if unrestricted)
- Taxable at FMV on vesting (if restricted)
- 83(b) election can fix basis at grant
- Capital gains on later sale
Restricted Stock
Restricted stock is common stock subject to vesting and forfeiture conditions. The company can repurchase unvested shares (typically at cost) if the service relationship ends.
Pros
- Immediate ownership (voting, dividends)
- 83(b) election locks in low value
- Simple to understand
- Capital gains treatment on appreciation
Cons
- Tax due at grant/vest (even without liquidity)
- Forfeiture risk if 83(b) filed and stock lost
- Requires 409A valuation
- More complex cap table
Best For: Founders, early employees willing to pay tax upfront, situations where current FMV is very low.
Options (ISOs & NSOs)
Incentive Stock Options (ISOs)
ISOs are tax-advantaged stock options available only to employees. If holding period requirements are met, the spread is taxed as capital gains rather than ordinary income.
Requirements
- Employee-only (not contractors)
- Exercise price >= FMV at grant
- $100K annual vesting limit
- 10-year maximum term
- 90-day post-termination exercise window
Tax Treatment
- No regular income tax at exercise
- AMT adjustment at exercise
- LTCG if held 1yr+ from exercise, 2yr+ from grant
- Disqualifying disposition = ordinary income
Non-Qualified Stock Options (NSOs)
NSOs are the default option type with no special tax treatment. The spread between exercise price and FMV at exercise is ordinary income.
Pros
- Available to employees, contractors, advisors
- No $100K annual limit
- Simpler tax rules (no AMT issues)
- Company gets tax deduction
Cons
- Ordinary income tax at exercise
- Withholding required (employment taxes)
- No capital gains on spread
- Tax due even if shares are illiquid
Best For: Contractors, advisors, non-employee directors, employees exceeding ISO limits.
Restricted Stock Units (RSUs)
How RSUs Work
RSUs are promises to deliver shares upon vesting. Unlike restricted stock, the recipient does not own shares until vesting occurs. No 83(b) election is available.
Characteristics
- No ownership until vesting
- No voting rights until delivery
- No dividends (unless dividend equivalents)
- No purchase price required
Tax Treatment
- No tax at grant
- Ordinary income at vesting (full FMV)
- Withholding required at vesting
- Capital gains on post-vest appreciation
When to Use RSUs
Pros
- No out-of-pocket cost to recipient
- Value guaranteed (unlike options)
- Simpler than options for recipients
- No forfeiture risk after vest
Cons
- No 83(b) election available
- Full value taxed at vest
- Less upside than options
- 409A issues for private companies
Best For: Public companies, later-stage private companies, recipients who want certainty of value.
LLC Membership Units
Capital Membership Units
Capital units represent actual ownership interest in an LLC, including rights to both capital and profits. Like corporate stock, they have immediate value.
Characteristics
- Share of existing capital and future profits
- Voting rights (typically)
- K-1 tax reporting
- Immediate value = immediate tax
Tax Treatment
- Taxable at FMV on grant (like stock)
- 83(b) election available if subject to vesting
- Ongoing K-1 income allocation
- Capital gains on sale
Incentive Units / Profits Interests
Profits interests (or incentive units) only share in future appreciation, not existing capital. This allows tax-free grants at zero value if properly structured.
Pros
- No tax at grant (zero value)
- Capital gains treatment on sale
- Aligns incentives with growth
- Flexible vesting terms
Cons
- Complex to structure correctly
- Requires capital account bookkeeping
- Recipient becomes LLC member (K-1s)
- No employee benefits eligibility
Best For: LLCs wanting to grant equity without immediate tax to recipient, service providers willing to accept K-1 complexity.
Profits Interests Deep Dive
How Profits Interests Work
A profits interest is an LLC interest that gives the holder a share of future profits and appreciation, but no share of existing capital. If the LLC were liquidated immediately after grant, the profits interest holder would receive nothing.
Safe Harbor Requirements (Rev. Proc. 93-27)
- Cannot be related to a substantially certain stream of income
- Cannot be disposed of within 2 years
- Must be for services to the partnership
- Recipient treated as partner from grant
Hurdle / Threshold
- "Participation threshold" set at FMV on grant date
- No value until threshold exceeded
- Requires 409A-style valuation
- Updated for each new grant
Profits Interests vs. Stock Options
| Feature | Profits Interests | Stock Options |
|---|---|---|
| Entity Type | LLC/Partnership only | Corporation only |
| Tax at Grant | None (if properly structured) | None |
| Tax at Vest | None (already a partner) | None |
| Tax at Exit | Capital gains (typically) | Depends on ISO/NSO, exercise |
| Exercise Price | None (built into hurdle) | Required at exercise |
| Ongoing K-1s | Yes | No |
Phantom Equity & SARs
Phantom Stock / Phantom Units
Phantom equity is a contractual right to receive cash (or sometimes stock) equal to the value of shares, without actual ownership. It's not real equity but a bonus tied to equity value.
Characteristics
- No actual ownership
- No voting or dividend rights
- No cap table impact
- Cash settled (usually)
- Contractual obligation
Tax Treatment
- No tax at grant (if 409A compliant)
- Ordinary income at payout
- Subject to 409A deferral rules
- Company gets deduction
Stock Appreciation Rights (SARs)
SARs give the right to receive the increase in value over a base price, similar to options but without requiring exercise payment. Can be settled in cash or stock.
Pros
- No out-of-pocket exercise cost
- No dilution if cash-settled
- Simple to understand
- Works for any entity type
Cons
- Ordinary income treatment
- 409A compliance required
- Cash flow impact on company
- Accounting liability
Best For: Companies wanting to avoid dilution, LLCs not wanting to add partners, situations requiring cash-settled incentives.
Comparison Table
All Equity Types Compared
| Type | Entity | Voting Rights | Tax at Grant | Tax at Vest/Exercise | Tax at Sale | Transfer Restrictions |
|---|---|---|---|---|---|---|
| Common Stock | Corp | Yes | FMV (or 83(b)) | FMV if no 83(b) | Capital gains | Yes (ROFR typical) |
| ISOs | Corp | After exercise | None | AMT on spread | LTCG if qualified | Yes |
| NSOs | Corp | After exercise | None | Ordinary income on spread | Capital gains on post-exercise | Yes |
| RSUs | Corp | After vest/delivery | None | Ordinary income (full FMV) | Capital gains | Yes |
| LLC Capital Units | LLC | Per OA | FMV (or 83(b)) | FMV if no 83(b) | Capital gains | Yes (OA restrictions) |
| Profits Interests | LLC | Per OA | None (if safe harbor) | None | Capital gains | Yes (OA restrictions) |
| Phantom Equity | Any | No | None | N/A | Ordinary income at payout | N/A (not real equity) |
| SARs | Any | No | None | N/A | Ordinary income at payout | N/A |
Which Type Should You Use?
For Corporations
- Founders: Restricted stock with 83(b)
- Early employees: ISOs (if qualified)
- Contractors/advisors: NSOs
- Late-stage/public: RSUs
- Avoid dilution: Phantom/SARs
For LLCs
- Founders: Capital units with 83(b)
- Key hires: Profits interests
- Contractors: Profits interests
- Avoid K-1s: Phantom units
- Simplicity: Unit appreciation rights