Sell your C-Corp business and pay no tax? - Smith Conley & Associates, PC

Section 1202 allows you to sell qualified small business stock (QSBS) on a tax-free basis!

Now, add to this no-tax-on-sale benefit to the 21 percent corporate tax rate from the Tax Cuts and Jobs Act, and you have a significant tax planning opportunity.

Let’s just suppose the following:

You sell your C corporation stock.
The sale produces a $6 million capital gain to you.

Your federal income tax bite on the $6 million of gain is zero. Yes, you read that correctly The tax bite is zero.

Internal Revenue Code Section 1202 establishes the rules for the zero tax bite. To get to zero, you need to operate your business as a tax code-defined QSBC (Qualified Small Business Corporation).

You may already have a tax code-defined small business corporation, or you may be thinking of starting a new business as a small business corporation. Paying zero taxes on the sale of your business stock is a huge incentive.

100 Percent Gain Exclusion Break (Tax-Free Capital Gains) – What are the ground rules?

To qualify for tax-free capital gains, you must acquire your QSBC stock after September 27, 2010.

In addition, you must hold your QSBC stock for more than five years to qualify for the tax-free treatment.

There are limits on how much you can exclude, but for most sales, this won’t be a problem.

The limits on your tax-free capital gains from the sale of a particular QSBC stock works like this.

In any taxable year, the tax limits on your eligible gain exclusion may not exceed the greater of

10 times the aggregate adjusted basis in the QSBC stock you sell, or
$10 million reduced by the amount of eligible gains that you’ve already taken into account in prior tax years from sales of this QSBC stock ($5 million if you use married filing separate status).

So how does this play out? Let’s look at an example:

You are a married joint filer. You invested $100,000 when you started your C corporation in 2012.

Now, in 2019 (more than five years after the start), you sell the stock in the C corporation for $6.1 million. You have tax-free capital gains equal to the greater of:

$1 million (10 x $100,000), or
$6 million (because it’s less than $10 million).

You have $6 million of tax-free capital gains.

Here’s another way you could hit one of the limits.

Example #2 – you are an unmarried individual. You invest $2 million in a single QSBC stock this year.

In 2025, more than five years from now, you sell this stock for $24 million, resulting in a total gain of $22 million ($24 million – $2 million). The tax code limits your tax-free gain to the greater of:

$20 million (10 times the basis of the stock), or
$10 million.

In 2025, you have $20 million in tax-free capital gains and $2 million in taxable capital gains. What’s not to like?

To be eligible for the gain exclusion, the stock you acquire must meet the requirements:

You generally must acquire the stock upon original issuance or through gift or inheritance.
You must acquire the stock in exchange for money, other property (not including stock), or services.
The corporation must be a QSBC at the date of the stock issuance and during substantially all the period you hold the stock.

Next, you have to look at the rules that apply to the corporation. To qualify as a QSBC, the following rules apply.

The corporation must be a domestic C corporation.
The corporation must satisfy an active business requirement. That requirement is deemed satisfied if at least 80 percent (by value) of the corporation’s assets are used in the active conduct of a qualified business.

There is one more “catch,” and it’s a big one.

Qualified businesses do not include:

the performance of services in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, or any other business where the principal asset is the reputation or skill of one or more of its employees,
banking, insurance, leasing, financing, investing, or similar activities,
farming (including raising or harvesting timber),
production or extraction of oil, natural gas, or other natural resources for which percentage depletion deductions are allowed; or,
the operation of a hotel, motel, restaurant, or similar business,
the corporation’s gross assets cannot exceed $50 million before the stock is issued and immediately after the stock is issued.

I did not cover all the rules that could apply. But if this has whetted your appetite to find out more

Remember that we're just a click away if you need help.

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David Conley

David is a partner at Smith, Conley & Associates, PC. In addition to writing and tax consulting, he is active in the pro-life community serving as President of the Fayette County Right to Life chapter of Georgia Right to Life.
He is also a founding Board Member and Finance Director of the Fayette Pregnancy Resource Center and serves on the Board of the National Equal Rights Institute.