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Unlocking the Tax Advantages of Qualified Small Business Stock (QSBS)

Investing in Qualified Small Business Stock (QSBS) provides a significant tax incentive for investors keen on backing small business initiatives. Originating from the Revenue Reconciliation Act of 1993, QSBS allows investors to either exclude a substantial portion of their capital gains under Section 1202 of the Internal Revenue Code or to opt for a gain rollover into another QSBS investment. This article delves into critical aspects of QSBS, from its definition to its nuanced tax treatment.

Defining Qualified Small Business Stock (QSBS)

QSBS consists of shares in a C corporation that meet specific criteria for tax benefits under Section 1202. Not all C corporation stocks qualify; the issuing corporations must meet conditions such as certain holding periods and active business operation requirements.

Criteria for QSBS Qualification

For stock to qualify as QSBS, it must originate from a domestic C corporation engaged in a qualified trade or business. Key eligibility criteria include:

  • Small Business Status: At the time of stock issuance, the corporation’s gross assets should not exceed $50 million ($75 million post-July 4, 2025) both before and after issuance.

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  • Active Business Requirement: A minimum of 80% of the corporation’s assets must be deployed in the active conduct of its trade or business.

  • Qualified Trade or Business: Primarily excludes service-based industries like health, law, and financial services, alongside farming, hotel, and restaurant operations, unless the business majorly participates in qualifying activities.

Tax Incentives of QSBS

The most enticing feature of QSBS is the opportunity to exclude up to 100% of the capital gains resulting from the sale of these stocks. The exclusions have evolved for different acquisition periods:

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  • Pre-2009: 50% exclusion on capital gains.

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

  • After 2010 Small Business Jobs Act to pre-OBBBA: 100% exclusion for stocks acquired from September 28, 2010, to before July 5, 2025.

OBBBA and Legislative Updates

The One Big Beautiful Bill Act (OBBBA), effective post-July 4, 2025, modifies exclusions:

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  • 50% exclusion for a three-year holding period.

  • 75% exclusion for four years.

  • 100% exclusion after five years.

For investments made before July 5, 2025, the excludable gain caps at $10 million or ten times the taxpayer’s adjusted basis, whichever is higher. For stock acquired thereafter, the limit surges to $15 million with future inflation adjustments.

Disqualifications and Special Considerations

Certain conditions can disqualify stocks from QSBS benefits:

  • Disqualified Stock: Includes stock repurchased from the issuing corporation within a two-year frame.

  • S Corporation Stock: Ineligible unless converted to C corporation status.

Transfers, Passthroughs, and Rollover Opportunities

  • Gift Transfers: QSBS can be gifted, with the recipient inheriting the original holding period.

  • Passthrough Entities: Partnerships and S corporations may hold QSBS shares, granting partners potential access to exclusions if conditions are met.

  • Rollover Election under Section 1045: Allows gain deferral if QSBS is held for six months or more before sale. Any untaxed gain decreases the new stock’s basis, preserving the potential for later gain exclusion once the holding requirements are fulfilled.

Understanding Tax Rates and Exclusions

Not all gains are excludable under Section 1202, and those that aren't do not qualify for the 0%, 15%, or 20% capital gains rates, being subject instead to a 28% maximum rate.

Alternative Minimum Tax (AMT) Implications

Previously considered a preference item for AMT calculations, recent revisions have removed its status. Generally, treatment under Section 1202 applies automatically without requiring an explicit election, provided eligibility conditions are met.

Investing in QSBS not only offers considerable tax savings but also incentivizes investment in U.S. small businesses. By understanding these qualifications, benefits, and limitations, investors can strategically plan their portfolios to optimize the advantages QSBS offers. Consulting with our office can further enhance compliance and benefit optimization.

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