Section 16 Officer: Who Actually Has to File a Form 4?

Every Form 4 asks the filer to describe their relationship to the company. The choices are Director, Officer (give title below), 10% Owner, and Other (specify below). Three of those boxes are mechanical. The fourth, Officer, depends on a legal test, and that test decides who is a Section 16 officer and whose trades appear in insider data at all.

Most posts about Form 4 explain what a row says. This one explains who is allowed to be in the row in the first place. The list is a judgment call by the company’s board, applied to a federal rule, and it does not always match the executives you would pick off the leadership page.

The Form 4 Box Most Readers Skip

Look at the top right of any Form 4. The relationship box says “Check all applicable,” so a filer can be a Director and an Officer at once, which is common for a CEO who sits on the board. When Officer is ticked, the form asks for a title, and that title is what you see in most insider tables. The Form 3carries the same relationship choices, and a person who is none of the first three must tick “Other” and explain why they are reporting.

Our Form 4 guide walks through the rows below that box. Here the question comes first: who is in the box?

Three Groups Section 16 Covers

The statute is short. Section 16(a)(1) requires every person who is “directly or indirectly the beneficial owner of more than 10 percent of any class of any equity security” registered under Section 12, or who is a director or an officer of the issuer, to file statements with the SEC. The same section sets the clocks: an initial statement within 10 days of becoming a director, officer or 10% owner, and changes reported before the end of the second business day after the transaction.

Rule 16a-3 assigns the forms: Form 3 for the initial statement, Form 4 for changes, Form 5 for annual statements, with Form 4 due before the end of the second business day after the transaction. For the 10% group, Rule 16a-1(a)(1) says beneficial ownership is measured under Section 13(d), the same concept behind our Schedule 13D coverage. For details on each form, see our posts on Form 3 and Form 5.

One consequence worth knowing: the Form 3 instructions say that a person who does not beneficially own any reportable securities is still required to file the form and state that no securities are beneficially owned. A new officer can therefore appear in the filing record before holding a single share.

The Rule 16a-1(f) Test: Function Over Title

Rule 16a-1(f) defines “officer” as an issuer’s:

• president
• principal financial officer
• principal accounting officer (or, if there is none, the controller)
• any vice-president in charge of a principal business unit, division or function, such as sales, administration or finance
• any other officer who performs a policy-making function
• any other person who performs similar policy-making functions for the issuer

Two details narrow and widen that list. A note to the rule says “policy-making function” is not intended to include policy-making functions that are not significant. And officers of the issuer’s parent or subsidiaries are deemed officers of the issuer if they perform such policy-making functions for the issuer. A subsidiary executive can therefore end up on the parent’s Form 4 list.

Notice what is missing: a rule saying “Chief Technology Officer is in” or “Vice President is out.” Law firm guidance from Goodwin says a title is not necessarily dispositive, that titles such as Chief Medical Officer, Chief Technology Officer and Chief People Officer often raise questions, and that reporting directly to the CEO is one indicator, not a conclusive one.

Section 16 Officer vs. Proxy-Statement Executive Officer

Public companies publish a second list of senior people. Item 401(b) of Regulation S-K requires the registrant to list the names and ages of all executive officers, and many companies put it in the 10-K under the caption “Information about our Executive Officers.” The definition of executive officer sits in Rule 3b-7: the president, any vice president in charge of a principal business unit, division or function, and other officers or persons who perform policy-making functions.

The two lists are linked. The note to Rule 16a-1(f) says that if an issuer identifies a person as an “executive officer” under Item 401(b), it is presumed that the board has made that judgment and that the persons so identified are officers for Section 16 purposes, as are other persons enumerated in paragraph (f) but not in Item 401(b). Read together, the executive officer list is a strong starting point, and the Section 16 list can be wider by operation of the rule’s own wording.

How Companies Actually Decide: Real Designation Language

The rule is generic. The decisions are company-specific, and some are public on EDGAR. Three examples show the range.

• HP Inc. Section 5.2 of its bylaws treats any person appointed to a position or office designated by the board as within the scope of Section 16a-1(f) of the 1934 Act as a “Section 16 Officer.” The board designates offices, not just individuals.
• Banc of California. Its 2014 proxy statement says “In January 2014, the Board reassessed criteria used in making determinations of Section 16 officers,” after major changes the prior year that included acquisitions, a management restructuring and revised reporting lines. The list moved because the business moved.
• Western Digital. Its Exhibit 19 policy defines Section 16 Insiders as directors and officers subject to Section 16 and says they are determined, designated and notified under a separate Summary of Insider Designation Procedures. Our Exhibit 19 guide covers how that wider policy universe works.

Goodwin notes that companies often formally designate Section 16 officers by board resolution each year, sometimes delegating to the compensation committee. That is described as common practice, not a legal requirement.

Who Typically Is Not on the List

The SEC staff’s Compliance and Disclosure Interpretations give one concrete example. Question 109.01 says an Assistant Secretary “would not ordinarily be considered an officer” under Section 16(a), unless the person performs functions that would make them an officer under Rule 16a-1(f). The test again is what the person does.

This is also why a screen of “executives” built from LinkedIn or a leadership page can differ from the people actually filing. The filing universe is the Section 16 universe.

Directors by Deputization and Other “Invisible” Insiders

A director does not have to be a person. Courts have treated an entity as a director when it “deputizes” someone to sit on the board on its behalf. In Roth v. Perseus, decided April 10, 2008, the Second Circuit held that Rule 16b-3(d) applies to “directors by deputization,” meaning shareholders who exercise the power to appoint directors to an issuer’s board. The SEC staff touches the same concept in C&DI Question 123.01, which says Rule 16b-3 is available to a 10% owner subject to Section 16 as a director, including a “deputized” director.

Whether deputization exists is a question of fact. In a 2023 amicus brief in Roth v. Foris Ventures, the SEC took no side and said that whether Foris, a 10% owner of Amyris whose principal was an Amyris director, was a “director by deputization” was a factual question on which it took no position.

Some companies address the point in contracts. In a June 30, 2022 warrant purchase agreement, Acutus Medical agreed that the Deerfield purchasers and their affiliates holding Acutus securities would be a “director by deputization” for Section 16 purposes for as long as a Deerfield Management employee or partner, named in the agreement as Andrew ElBardissi, served on the board. Contract language like this is rare, and it shows that who is covered can be negotiated into the paper trail. Liability once covered is a separate topic; see our short-swing profit rule guide.

What Changed in 2026 for Foreign Private Issuers

The Holding Foreign Insiders Accountable Act was signed December 18, 2025. Per Morrison Foerster, it took effect March 18, 2026, when directors and officers of foreign private issuers had to file an initial Form 3. It covers directors and officers, not holders of more than 10%, and it uses the same Rule 16a-1(f) officer definition. Morrison Foerster adds that some officers may differ from those listed in the issuer’s Form 20-F, so both lists deserve review. Our HFIAA post has the full story.

A Reader’s Checklist for Any Form 4

1. Read the Relationship box and the title. Director, Officer, 10% Owner and Other mean different things, and more than one box can be ticked.
2. Compare with the 10-K.Check the company’s “Information about our Executive Officers” section, then the proxy and any bylaws or policies for designation language.
3. Remember who is outside the data. An absent name is not evidence of absent trading.
4. Know why it matters. The SEC has penalized late and missing filings. In a September 10, 2014 sweep charging 28 officers, directors and major shareholders and six companies, the enforcement director said “inadvertence is no defense to filing violations.” Our delinquent filings post goes deeper, and what insider trading actually means covers the broader meaning of “insider.”

This is education about how a disclosure rule defines its filers. It is not investment advice, and nothing here predicts how any stock will move.