What is it?
The Qualified Small Business Stock (QSBS) Exclusion, governed by Section 1202 of the Internal Revenue Code, is a powerful yet underutilized tax incentive. This provision allows sellers of qualified C corporations to potentially exclude up to 100% of the taxable gain on the sale of QSBS. If you're selling a business and it meets the requirements, this could mean significant tax savings—an opportunity you certainly don't want to overlook.
The Background of Section 1202
Section 1202 was introduced in 1993 as part of a broader effort to stimulate investment in small businesses. By offering substantial tax exclusions, the law encourages investors to support these businesses, fostering economic growth. For stock issued after August 10, 1993, Section 1202 enables taxpayers to avoid paying taxes on gains, which can be excluded up to the greater of $10 million or 10 times the aggregate adjusted basis of the stock at the time of issuance.
The impact of this exclusion could become even more significant if future changes raise the federal long-term capital gains tax rate. The amount of gain that can be excluded is tied to the date of investment, and many states mirror federal treatment, which can lead to even greater tax savings. The table below provides a summary of the federal gain exclusion rates based on the investment date:
Investment Date | Percentage of Gain Excludible | Maximum Exclusion |
Before Feb 18, 2009 | 50% | Up to $10 million |
Feb 18, 2009 - Sep 27, 2010 | 75% | Up to $10 million |
After Sep 27, 2010 | 100% | Up to $10 million |
How to Qualify for the QSBS Exclusion
Qualifying for the QSBS exclusion under Section 1202 is not straightforward, as the requirements are complex and the IRS has provided limited guidance. Here are the eight critical requirements to qualify:
Eligible Shareholder: The stock must be held by a non-corporate shareholder, including individuals, trusts, and estates.
Holding Period: The stock must be held for more than five years before it’s sold.
Acquisition Date: The taxpayer must have acquired the stock after August 10, 1993.
Eligible Corporation: The corporation must be a domestic C corporation. While S corporations are not eligible, LLCs taxed as C corporations can qualify.
Asset Threshold: The corporation must not have had more than $50 million in tax basis assets at any time from August 11, 1993, through the issuance of the stock.
No Significant Redemptions: To prevent capital from being used for redemptions rather than for business growth, any significant stock redemptions in the year before or after issuance can disqualify the stock from Section 1202 eligibility.
Qualified Trade or Business: The corporation must be engaged in a qualified trade or business. Businesses in certain industries, such as personal services, financial services, farming, oil and gas, mining, hospitality, and real estate, are excluded from eligibility. The IRS provides limited guidance on what constitutes a qualified business, leaving room for interpretation.
Use of Assets: The corporation must use at least 80% of the fair market value of its assets in the active conduct of a qualified trade or business.
The QSBS Exclusion under Section 1202 offers a compelling tax incentive for investors in qualified small businesses, but navigating its requirements can be challenging. For those considering selling a business, understanding and potentially qualifying for this exclusion could result in substantial tax savings. Consulting with a tax professional who is well-versed in Section 1202 is crucial to ensure you maximize this opportunity. Don’t miss out on what could be a significant financial benefit when selling your business.
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