The Power of Section 1202 - Everything Old is New Again
Summary of Provision
- Accelerated depreciation: Eligible tangible property can be immediately expensed due to the rules of bonus depreciation (which is currently 100 percent). The recurring investment in tangible property will serve to reduce or eliminate taxable income. (Note: Under the TCJA bonus depreciation gradually phases out after Dec. 31, 2022).
- Reduced tax rate: To the extent a highly profitable business cannot shield its entire taxable income with the depreciation benefit listed above, residual taxable income will be taxed at a 21% tax rate, as opposed to the prior 35% maximum tax rate.
- Section 1202 eligible stock sale: If all the qualifications set forth in Section 1202 are satisfied (discussed below), not only will the corporation benefit due to reduced taxable income and reduced tax rate, perhaps most importantly, the shareholders will be able to exclude up to a minimum of $10 million from taxable income.
- QSBS must be stock in a domestic C corporation that was originally issued after August 10, 1993
- QSBS must be acquired by the taxpayer at its original issue
- The QSB must have total gross assets of $50 million or less at all times on or after August 10, 1993 and immediately after the stock is issued
- During the time the taxpayer holds the QSBS, at least 80 percent of the value of the corporation’s assets must be used in the active conduct of a qualified trade or business
- Involving services performed in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, athletics, financial services or brokerage services, or any business where the principal asset of such business is the reputation or skill of one or more employees,
- Involved in banking, insurance, financing, leasing, investing, or similar business,
- Involved in farming,
- Involved in the production or extraction of certain natural resources eligible for a depletion allowance, and
- Involved in the operation of a hotel, motel, restaurant or similar businesses.
- The stock must meet all the requirements to be QSBS and must be held by the partnership for more than five years. The taxpayer’s share of such gain must be attributable to an interest in the partnership held by such taxpayer on the date on which the partnership acquired the QSBS stock and always thereafter until the disposition of QSBS by the partnership
- Increases in the taxpayer’s interest in the partnership after the date on which the partnership acquired the QSBS are ignored in determining the amount of gain eligible for exclusion in the hands of the taxpayer.
What you need to know
- Investments structured as pass-through entities will not qualify. Accordingly, existing pass-through entities that would otherwise qualify under Section 1202 should consider converting to a C corporation. In most cases, this can be accomplished in a tax-free transaction. While any appreciation that has occurred prior to conversion will not qualify for the exclusion, post conversion appreciation will qualify. Shareholders will need to hold the stock in the company for five years after the conversion.
- The form of investment should be analyzed when considering investments and raising capital, as common structures such as convertible debt, options and warrants will not qualify for the benefits under Section 1202 until either conversion or exercise; and the issuing corporation’s gross assets will be measured at the time of conversion or exercise.
- The exit strategy or form of disposition of the investment should be carefully considered. Investments may be disposed of as either a sale of assets or a sale of stock. Note that only those transactions structured as a stock sale can benefit from the Section 1202 exclusion.
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