                       REVISED August 24, 2007

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                                 No. 06-60723                       July 17, 2007

                                                             Charles R. Fulbruge III
                                                                     Clerk
ROBERT J MERLO

                                           Petitioner - Appellant
v.

COMMISSIONER OF INTERNAL REVENUE

                                           Respondent - Appellee



                   Appeal from the United States Tax Court



Before KING, DAVIS, and BARKSDALE, Circuit Judges.
KING, Circuit Judge:
      Petitioner-appellant Robert Merlo exercised an incentive stock option in
2000. In an action brought to determine his federal income tax liability, the tax
court held that for alternative minimum tax purposes, Merlo realized income
from the option’s exercise in 2000. The stock became worthless in 2001, and the
tax court held that the resulting capital loss could not be carried back as an
alternative tax net operating loss to 2000 to offset the income from the option’s
exercise. We AFFIRM.


           I. FACTUAL AND PROCEDURAL BACKGROUND
                                     No. 06-60723

      In December 2000, petitioner-appellant Robert Merlo purchased stock by
exercising an incentive stock option given to him by his employer, Exodus
Communications, Inc. (“Exodus”), a publicly traded company. Merlo purchased
the stock at a significant discount to market, paying only $9225 when the fair
market value of the stock on the date of exercise equaled $1,075,289. Exodus’s
insider trading policy prevented employees from trading the company’s stock
during certain blackout periods. Employees could, however, acquire stock by
exercising a stock option during a blackout period, and that is what Merlo did.
      Soon after Merlo exercised his option, the stock’s value declined rapidly
and, in the vernacular, he rode the stock all the way to the bottom.
Approximately nine months later, Exodus filed for bankruptcy. In November
2001, Exodus declared its stock worthless.
      On his income tax return for 2000, Merlo reported that the exercise of the
stock option generated taxable income for alternative minimum tax (“AMT”)
purposes. Merlo calculated the income as the difference between the price he
paid when he exercised the option and the market price on April 15, 2001.1 The
IRS concluded that Merlo should have used the date of exercise, December 21,
2000, as the valuation date to calculate his alternative minimum taxable income
(“AMTI”) and that by using an improper valuation date, Merlo had significantly
understated his AMTI. The IRS issued a notice of deficiency to Merlo, asserting
that he owed an additional $169,510 in tax for the year 2000.
      After receiving the deficiency notice, Merlo attempted to file an amended
tax return, reflecting no AMTI (and thus no AMT) for 2000. He took the position
on the amended return that he realized no AMTI when he exercised the option



      1
        Legislation pending in Congress when Merlo filed his tax return would have allowed
him to use an April 15, 2001 valuation date. But Congress never enacted the legislation.

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because the shares purchased were subject to a substantial risk of forfeiture.
But the IRS rejected his amended return.
      Next Merlo contested the deficiency notice in the tax court, and the parties
stipulated to the facts. The parties submitted cross-motions for partial summary
judgment on the issue of whether the stock was held subject to a substantial risk
of forfeiture. The tax court decided that no substantial risk of forfeiture existed
because the option’s terms did not include a sellback provision and the evidence
did not indicate that Exodus could have compelled Merlo to return his shares
after he exercised the option.
      Another issue on summary judgment was whether the loss incurred when
the Exodus stock became worthless entitled Merlo to an alternative tax net
operating loss (“ATNOL”) carry back deduction which would have allowed Merlo
to offset the income generated in 2000 with the loss suffered the following year.
The tax court again found for the IRS, holding that because the capital loss
limitations applicable to the regular income tax regime also applied to the AMT,
Merlo could not carry back an ATNOL.
      Merlo now appeals, arguing that the tax court improperly granted
summary judgment for the IRS.
                                 II. DISCUSSION
      We review tax court decisions in the same manner as we do civil actions
decided by a federal district court. 26 U.S.C. § 7482(a). As the parties submitted
this case for summary judgment on stipulated facts, only conclusions of law are
at issue and we review the judgment de novo. See Houston Oil and Minerals
Corp. v. Comm’r, 922 F.2d 283, 285 (5th Cir. 1991).
      Merlo was subject to the AMT, which is separate from and in addition to
the regular income tax. I.R.C. § 55(a). Congress enacted the AMT to ensure that
high-income taxpayers cannot avoid significant tax liability through the use of

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exclusions, deductions, and credits. Snap-Drape, Inc. v. Comm’r, 98 F.3d 194,
199 (5th Cir. 1996); 1 AMELIA LEGUTKI, MERTENS LAW          OF   FEDERAL INCOME
TAXATION § 2A:01 (2004). Although the AMT is imposed at a lower rate than the
regular income tax, it is applied to a substantially expanded income base known
as alternative minimum taxable income (“AMTI”). I.R.C. §§ 56, 58; see also 1
LEGUTKI, supra, § 2A:01. The AMTI base is created by eliminating tax-breaks
given to the taxpayer under the regular income tax regime, such as the preferred
treatment given to qualified incentive stock options. See, e.g., I.R.C. § 56(b)(3);
Snap-Drape, Inc., 98 F.3d at 199 (recognizing that deductions or exclusions from
income under the regular income tax regime are not available in computing
AMTI, including the exclusion for interest on private activity bonds).
      The difference between the stock option price and the stock’s fair market
value on the date of exercise is a substantial economic benefit. See Comm’r v.
LoBue, 351 U.S. 243, 247-48 (1956); Comm’r v. Smith, 324 U.S. 177, 181-82
(1945); McDonald v. Comm’r, 764 F.2d 322, 326 (5th Cir. 1985). Under the
regular income tax, if an option meets the requirements of an employee incentive
stock option under Internal Revenue Code (“I.R.C.” or “the Code”) § 422, that
difference is not taxed as income when the option is exercised but instead upon
the disposition of the stock. I.R.C. § 421(a)(1). But that tax-deferred treatment
is eliminated for purposes of the AMT. I.R.C. § 56(b)(3). Instead, the difference
between the option price and the fair market value must be recognized in the
taxpayer’s AMTI under the general rules of § 83, the statute governing stock
options that do not satisfy the requirements of § 422.
      Merlo seeks to recognize both the income and the loss from the Exodus
stock in the same taxable year for AMT purposes and thereby reduce his
deficiency. Merlo first argues that income from the stock option should have


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been recognized in 2001, not 2000, because in 2000 he was not substantially
vested in the property. Alternatively, Merlo asserts that an exception to the
capital loss limitations applies that would allow him to carry back the loss in
2001 to 2000 as an ATNOL.
A. Substantial Risk of Forfeiture
      Merlo argues that he did not realize AMTI in 2000 because the blackout
period was in effect on the date he exercised the option and remained in effect
throughout the remainder of the year, creating a substantial risk of forfeiture.
Section 83(a) of the I.R.C. provides that income from an option’s exercise is
included in gross income “in the first taxable year in which the rights of the
person having the beneficial interest in such property are transferable or are not
subject to a substantial risk of forfeiture.” I.R.C. § 83(a). In other words, § 83
seeks to tax the receipt of property when the property is “substantially vested.”
Treas. Reg. § 1.83-1(a). And property is substantially vested at the first point
at which it is either transferable by the recipient taxpayer or not subject to a
substantial risk of forfeiture. Id. § 1.83-3(b).
      Although Merlo could not transfer his stock until the blackout period
lapsed, he would nevertheless have been substantially vested in the stock so long
as the stock was not subject to a substantial risk of forfeiture. Whether there is
a substantial risk of forfeiture in a particular case depends on the individual
facts and circumstances, id. § 1.83-3(c)(1), though the I.R.C. and Treasury
Regulations provide some guidance with regard to what constitutes a substantial
risk of forfeiture. For example, property is subject to a substantial risk of
forfeiture where rights in the property are conditioned on the future




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performance of services by any individual.2 I.R.C. § 83(c)(1). But property is not
“subject to a substantial risk of forfeiture to the extent that the employer is
required to pay the fair market value of a portion of such property to the
employee upon the return of such property.” Treas. Reg. § 1.83-3(c)(1). Further,
neither the risk that the property’s value will decline during a certain time
period nor a requirement that the property be returned to the employer if the
employee is discharged for cause or for committing a crime constitutes a
substantial risk of forfeiture. Id. § 1.83-3(c)(1), (2).
       In support of his theory, Merlo argues that his circumstances are
analogous to those of the taxpayer in Robinson v. Commissioner, 805 F.2d 38 (1st
Cir. 1986). In Robinson, the taxpayer’s stock option agreement featured a
provision that required the taxpayer to sell his shares back to the company at
his original cost if he desired to sell his stock within one year of the exercise of
the option. 805 F.2d at 39. The First Circuit identified the sellback provision
as the distinguishing characteristic of the option and concluded that when
combined with the significant business purpose of preventing insider trading, it
created a substantial risk of forfeiture that existed until the sellback provision
lapsed. Id. at 41.
       In this case, the tax court distinguished Robinson on its facts, recognizing
that Merlo had not shown that Exodus could have compelled him to return his
shares of stock. It held that the remedy chosen by Exodus to enforce its insider
trading policy was disciplinary action against the employee, not a forfeiture of
the shares.


       2
          Section 83(c)(1) provides that “[t]he rights of a person in property are subject to a
substantial risk of forfeiture if such person’s rights to full enjoyment of such property are
conditioned upon the future performance of substantial services by any individual.” I.R.C.
§ 83(c)(1).

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      We agree with the tax court. Merlo has failed to identify a sellback
provision similar to the one in Robinson. The blackout period within the insider
trading policy is insufficient to create a substantial risk of forfeiture because the
remedy for non-compliance does not include forfeiture of the shares.             See
Theophilos v. Comm’r, 85 F.3d 440, 447 n.18 (9th Cir. 1996) (holding that in
determining whether a substantial risk of forfeiture exists, the court must
determine whether the employee can lose his rights in the property). The mere
fact that a restriction prevented Merlo from transferring the shares during the
blackout period was not enough to cause Merlo to forfeit the shares.
      Merlo also asserts that a substantial risk of forfeiture exists because
Article 8 of the Uniform Commercial Code and § 10(b) of the Securities Exchange
Act of 1934 give Exodus the right to bring suit for disgorgement of profits.
Without reaching the issue of whether those statutes bestow such rights on
Exodus, we conclude that this argument also fails. Section 83(c)(3) provides that
a substantial risk of forfeiture exists, and the property becomes nontransferable
within the meaning of § 83, when a sale of the property would subject an
individual to suit under § 16(b) of the Securities Exchange Act of 1934 for
disgorgement of profit against certain corporate insiders. I.R.C. § 83(c). Merlo
does not contend that he was an executive to which § 16(b) applied, but instead
argues that, by analogy, a substantial risk of forfeiture exists whenever an
employer or third party has the right to compel the disgorgement of the profits
from the sale of the property.
      Merlo’s argument is not supported by the Code, as the only type of suit
identified as subjecting property to a substantial risk of forfeiture is a suit
brought under § 16(b). See § 83. For civil suits such as the ones identified by
Merlo to be considered within the definition of a substantial risk of forfeiture,
Congress would have to amend § 83. As the Ninth Circuit recognized when

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considering a similar issue, “[b]y enacting I.R.C. § 83(c)(3), Congress
demonstrated that civil suits are not generically covered by I.R.C. § 83 . . . .
[T]his indicates that for a civil violation to be considered a substantial risk of
forfeiture, Congress must act specifically to include it within the scope of I.R.C.
§ 83.” United States v. Tuff, 469 F.3d 1249, 1256 (9th Cir. 2006). Accordingly,
the tax court did not err in concluding that a substantial risk of forfeiture did not
exist when Merlo exercised the option in 2000.
B. Alternative Tax Net Operating Loss
      Alternatively, Merlo argues that the loss from the Exodus stock entitles
him to an ATNOL deduction that he may carry back to 2000. Merlo’s theory is
inconsistent with the statutory scheme governing capital assets and ATNOLs.
       Once Merlo exercised the option, he began holding the stock as a capital
asset. See I.R.C. § 1221. When Merlo’s shares of Exodus stock became worthless
in 2001, he realized a capital loss for that taxable year. See I.R.C. § 165(g)(1)
(providing that when a capital asset becomes worthless during the taxable year,
the loss is treated as one resulting from the sale or exchange of a capital asset).
       Under the regular income tax regime, a taxpayer may carry back a net
operating loss (“NOL”) to the two taxable years preceding the loss, then forward
to the twenty taxable years following the loss. I.R.C. § 172(b)(1)(A). An NOL
occurs when, in a given taxable year, the allowable deductions exceed gross
income.    I.R.C. § 172(c).    However, in computing an NOL, noncorporate
taxpayers such as Merlo may consider capital losses only to the extent of capital
gains plus $3000 or the excess of losses over gains, whichever is lower.
I.R.C. § 1211(b)(2); § 172(c), (d). Accordingly, § 172(d)(2)(A) works so that net
capital losses are effectively excluded from the computation of NOL. 7 LEGUTKI,
supra, § 29:62.   And even though unrecognized capital losses may be carried


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forward to subsequent taxable years, they may not be carried back to prior
taxable years. I.R.C. § 1212(b).
       For purposes of the AMT, taxpayers take an ATNOL deduction instead of
an NOL. I.R.C. § 56(a)(4). To calculate the ATNOL deduction, the taxpayer first
computes the NOL under § 172 as he would for regular income tax purposes.3
I.R.C. § 56(d)(1); 1 LEGUTKI, supra, § 2A:01 (2004). Next the NOL is modified by
taking into account the adjustments to taxable income under §§ 56 and 58 and
the preference items under § 57. I.R.C. § 56(d)(2)(A). The preference items in
§ 57 are only considered to the extent that they increase NOL for the year for
regular tax purposes. Id.
       Merlo argues that § 56(d)(2)(A)(i) creates an exception to the usual rule
under § 172(d) that capital losses are taken into account for NOL purposes only
to the extent of capital gains.4 But Merlo misapplies the statute. The starting


       3
           Section 56(d)(1) provides:
                For purposes of subsection (a)(4), the term “alternative tax net
                operating loss deduction” means the net operating loss deduction
                allowable for the taxable year under section 172, except that . . .
                       (B) in determining the amount of such deduction—
                              (i) the net operating loss (within the meaning of
                              section 172(c)) for any loss year shall be adjusted
                              as provided in paragraph (2), and
                              (ii) appropriate adjustments in the application of
                              section 172(b)(2) shall be made to take into account
                              the limitation of subparagraph (A).
I.R.C. § 56(d)(1).
       4
           Section 56(d)(2)(A) provides:
                In the case of a loss year beginning after December 31, 1986, the
                net operating loss for such year under section 172(c) shall
                       (i) be determined with the adjustments provided in this
                       section and section 58, and

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point for the ATNOL computation is the NOL under § 172(c), (d) which accounts
for capital losses and limits them to the amount of capital gain. § 56(d)(1). None
of the modifications made in the second step, as directed by § 56(d)(2)(A),5
overrides the § 172 limitations. See I.R.C. §§ 56, 57, 58. Further, the legislative
history cited by Merlo is taken out of context and does not support his argument.
His argument is essentially one of policy, misdirected to this court rather than
to Congress. Accordingly, the tax court did not err when it determined that no
ATNOL existed which could be carried back.
                                    III. CONCLUSION
       For the foregoing reasons, we AFFIRM the tax court’s judgment.




                        (ii) be reduced by the items of tax preference determined
                        under section 57 for such year.
               An item of tax preference shall be taken into account under
               clause (ii) only to the extent such item increased the amount of
               the net operating loss for the taxable year under section 172(c).
I.R.C. § 56(d)(2)(A).
       5
          Secondary authority also supports our conclusion. See 1 LEGUTKI, supra § 6:70
(acknowledging that courts have repeatedly rejected taxpayers’ attempts to offset AMT paid
upon exercise of the option by carrying back the losses realized on the sale or disposition of the
stock); Francine J. Lipaian, Incentive Stock Options and the Alternative Minimum Tax: The
Worst of Times, 39 HARV. J. ON LEGIS. 337, 355 (2002) (acknowledging that under the current
AMT system, a large capital loss cannot be carried back to prior taxable years).

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