Page 109

131 STAT. 2161 PUBLIC LAW 115–97—DEC. 22, 2017 available to all employees is not equal in amount, so long as the number of shares available to each employee is more than a de minimis amount, and ‘‘(III) rights and privileges with respect to the exercise of an option shall not be treated as the same as rights and privileges with respect to the settlement of a restricted stock unit. ‘‘(iii) EMPLOYEE.—For purposes of clause (i)(II), the term ‘employee’ shall not include any employee described in section 4980E(d)(4) or any excluded employee. ‘‘(iv) SPECIAL RULE FOR CALENDAR YEARS BEFORE 2018.—In the case of any calendar year beginning before January 1, 2018, clause (i)(II) shall be applied without regard to whether the rights and privileges with respect to the qualified stock are the same. ‘‘(3) QUALIFIED EMPLOYEE; EXCLUDED EMPLOYEE.—For pur- poses of this subsection— ‘‘(A) IN GENERAL.—The term ‘qualified employee’ means any individual who— ‘‘(i) is not an excluded employee, and ‘‘(ii) agrees in the election made under this sub- section to meet such requirements as are determined by the Secretary to be necessary to ensure that the withholding requirements of the corporation under chapter 24 with respect to the qualified stock are met. ‘‘(B) EXCLUDED EMPLOYEE.—The term ‘excluded employee’ means, with respect to any corporation, any indi- vidual— ‘‘(i) who is a 1-percent owner (within the meaning of section 416(i)(1)(B)(ii)) at any time during the cal- endar year or who was such a 1 percent owner at any time during the 10 preceding calendar years, ‘‘(ii) who is or has been at any prior time— ‘‘(I) the chief executive officer of such corpora- tion or an individual acting in such a capacity, or ‘‘(II) the chief financial officer of such corpora- tion or an individual acting in such a capacity, ‘‘(iii) who bears a relationship described in section 318(a)(1) to any individual described in subclause (I) or (II) of clause (ii), or ‘‘(iv) who is one of the 4 highest compensated offi- cers of such corporation for the taxable year, or was one of the 4 highest compensated officers of such cor- poration for any of the 10 preceding taxable years, determined with respect to each such taxable year on the basis of the shareholder disclosure rules for compensation under the Securities Exchange Act of 1934 (as if such rules applied to such corporation). ‘‘(4) ELECTION.— ‘‘(A) TIME FOR MAKING ELECTION.—An election with respect to qualified stock shall be made under this sub- section no later than 30 days after the first date the rights of the employee in such stock are transferable or are not subject to a substantial risk of forfeiture, whichever occurs earlier, and shall be made in a manner similar to the VerDate Sep 11 2014 10:09 Oct 18, 2018 Jkt 079139 PO 00097 Frm 00109 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL097.115 PUBL097 dkrause on DSKBC28HB2PROD with PUBLAWS