There is little guidance about whether and how an executive who has compensation clawed back can take a tax deduction for the amount repaid.  A new case reported by BNA today involving an insider trading forfeiture may show one path to a deduction for claw backs too.  The case involves Joseph Nacchio, the former CEO of Qwest.  After being convicted of insider trading, Nacchio forfeited $44.6 million in 2007 that he had realized from the insider stock sales in 2001.  He amended his 2007 return to deduct the $44.6 million under Code Section 165 as a loss and also claimed a credit of $18 million under Code Section 1341 for the taxes originally paid on the stock sales.  In denying summary judgment for either side, the Court of Federal Claims held that Nacchio might be entitled to the credit under Code Section 1341 if he subjectively believed that he had a claim of right to the forfeited gain.

Applying Code Section 1341 to a compensation claw back, most executives would have had a subjective belief that the incentive compensation was appropriately payable in the original year of payment.  The IRS might challenge that belief in some cases, such as a claw back due to an accounting restatement based on actions by the executive.

The ability to get a credit for taxes paid in an earlier year on income that has been clawed back would soften the blow of the claw back to an executive.  This also seems like the right tax result.