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Harnessing Tax Benefits with Qualified Small Business Stock

Investors looking to support small businesses while maximizing tax efficiency should consider Qualified Small Business Stock (QSBS). Established under the Revenue Reconciliation Act of 1993, QSBS allows for significant capital gains tax exclusions under Section 1202 of the Internal Revenue Code, or offers the option to defer gains through rollover into other QSBS. This article delves into crucial aspects of QSBS, from its definition to intricate tax treatments.

Defining Qualified Small Business Stock (QSBS) refers to shares in a C corporation that satisfy conditions for tax advantages as per Section 1202. Only certain C corporation stocks qualify, requiring adherence to conditions related to issuing corporations and holding periods.

Eligibility Criteria for QSBS

  • Small Business Criteria: Upon issuance, the corporation’s gross assets must not surpass $50 million ($75 million post-July 4, 2025) both before and after stock issuance.

  • Active Business Mandate: At least 80% of the corporation's assets must be utilized actively in the qualified trade or business operation.

  • Qualified Trade or Business: Most service-driven businesses, like those in health, law, and financial sectors, along with agriculture and hospitality, are excluded. The business must engage primarily in qualifying activities.

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Tax Advantages of QSBS: QSBS provides a chance to exclude up to 100% of capital gains on stock sales, with the exclusion rates evolving over time. For stock acquired:

  • Before 2009 Amendments: 50% gain exclusion.

  • Between 2009 amendments and pre-2010 Small Business Jobs Act: 75% exclusion.

  • Post-2010 Small Business Jobs Act: 100% exclusion for stock between September 28, 2010, and before July 5, 2025.

The One Big Beautiful Bill Act (OBBBA), effective from July 5, 2025, further adjusts exclusions:

  • 50% for three-year holding periods

  • 75% for four-year holdings

  • 100% for five-year holdings

For QSBS acquired pre-July 2025, excludable gain limits up to $10 million or tenfold the tax-adjusted basis apply, increasing to $15 million with inflation adjustments for post-July 2025 acquisitions.

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Ineligibility and Unique Holdings: Certain conditions prevent QSBS eligibility:

  • Disqualified Stock: Stocks repurchased from the issuing corporation within two years.

  • S Corporation Stock: Stock in S corporations is ineligible unless converted to C corporation status.

Transfer and Deferred Gain Opportunities

  • Gift Transfers: QSBS can be gifted, preserving the holding period for the recipient and eligibility for benefits.

  • Passthrough Entities: Partnerships and S corporations may hold QSBS, potentially allowing all partners to benefit from exclusions given compliance with specific conditions.

  • Section 1045 Rollover Election: Defers gains on QSBS held beyond six months, reducing the basis of acquired stock. Exclusions apply when selling replacement stock after requisite holding.

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Nuances of Tax Rates and Exclusions: Not all QSBS gains qualify for exclusion, nor do they benefit from the 0%, 15%, or 20% capital gains rates. Instead, these gains may face a maximum 28% tax rate.

Alternative Minimum Tax (AMT) Considerations: Historical inclusion of QSBS gains as an AMT preference item has been rescinded under recent amendments. Section 1202 application generally occurs automatically without requiring explicit selection.

QSBS presents substantial tax savings opportunities and fosters domestic small business investments. Understanding qualifications and limits can help investors strategically align portfolios for maximizing QSBS benefits. Staying informed and seeking professional advice ensures compliance and optimization of tax advantages.

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