Foreign nationals looking to start a business in the United States often find that operating as a C Corporation is most desirable. One of the benefits of becoming a C Corporation is that they can issue Qualified Small Business Stock (QSBC). A QSBC is a U.S. C Corporation that upon sale, can have a 100% Federal capital gain exclusion for both regular and alternative minimum tax purposes.
U.S. tax law imposes limits on the amount of gain that can be excluded from selling shares in a particular QSBC. In any taxable year, a taxpayer’s eligible gain is limited to the greater of—
- 10 times the taxpayer’s aggregate adjusted basis in the QSBC stock that is sold, or
$10 million - The QSBC stock must have been held for more than five years to gain the benefit of the capital gain exclusion. State law compliance with Federal law on QSBC stock must be examined on a state by state basis.
In order for a C Corporation to be classified as a QSBC, it must meet the following criteria:
- The total assets of the C Corporation cannot exceed $50 million
- 80% or more of the C Corporation’s assets must be used in the active conduct of a qualified business. Qualified businesses do not include services in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, 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, oil, natural gas, or the operation of a hotel, restaurant, or similar business.
- The taxpayer must have acquired the stock upon original issuance or through gift or inheritance
- The taxpayer must have acquired the stock in exchange for money, other property (not including stock), or services
- The corporation must have been a QSBC on the date the stock was issued and during substantially all the period the taxpayer held the stock
- The acquisition of the stock must have been after August 10, 1993
Shareholders of QSBC stock also have the ability to defer the gain on a stock sale to the extent you acquire replacement QSBC stock within 60 days of the original sale. You must have held the QSBC stock for more than six months to take advantage of this opportunity. Once the gain is deferred, you must reduce the income tax basis of the replacement stock by the amount of gain deferred. If the replacement stock is QSBC stock when it’s sold, the applicable capital gain tax exclusion is available if the more-than-five-year holding period requirement is met.
When a C Corporation internally finances its operations and cannot issue dividends to its shareholders, the 100% capital gain exclusion and deferral tax benefits combined with the flat 21% corporate tax rate can make operating a newly formed C Corporation business as a QSBC more tax-efficient than operating it as a Partnership or S Corporation. For example, a newly established business C Corporation is set up as a QSBC. Over the next five years, the QSBC retains all $10 million of its taxable income after paying the 21% federal tax rate for C Corporations.
For the sake of discussion, the retained income creates a dollar-for-dollar increase in the value of the QSBC stock equal to $7.9 million ($10,000,000 – $2,100,000 of tax). The taxpayer eventually sells the QSBC shares for a $7.9 million profit and shelters the entire gain with the 100% capital gain exclusion.
So, there is no federal income tax on the QSBC stock sale gain. In contrast, the taxpayer operates the same business as a Partnership or S Corporation and it is taxed at the maximum 37% personal income tax rate. With the new law for qualified businesses, the taxpayer qualifies for the new 20% qualified business income deduction. Consequently, the effective tax rate on the $10 million of taxable income for a Partnership or S Corporation will be 29.6%. [37% x (1 – 20%) = 29.6%]. Clearly a benefit in this case to operate as a C Corporation taxed at 21%.
