The COVID-19 crisis has taken a toll on many small businesses. But some winners are expected to emerge from the wreckage. Unprecedented steps will be taken to guard against health risks from COVID-19 and whatever might come along next. The new normal will create new opportunities. Small businesses that can respond to those opportunities will survive and thrive.
Here’s why operating as a tax-favored qualified small business corporation (QSBC) can be a smart move for eligible small businesses.
Tax Basics
QSBCs are a special breed of the C corporation species. The difference between QSBCs and garden-variety C corporations is that QSBC stock is potentially eligible for:
- A 100% federal income tax gain exclusion break, and
- A tax-free gain rollover break.
The 100% gain exclusion break translates into a 0% federal income tax rate on capital gains from eligible sales of QSBC stock.
You also benefit from the flat 21% federal income tax rate that C corporations pay, thanks to the Tax Cuts and Jobs Act (TCJA).
The gain exclusion and gain rollover breaks are available to individual taxpayers who own QSBC stock. However, these breaks aren’t available to QSBC shareholders that are themselves C corporations. Gains from sales of QSBC stock that individuals own indirectly through “pass-through” entities (partnerships, limited liability companies (LLCs), and S corporations) are eligible, because the gain exclusion and gain rollover breaks are effectively passed through to individual owners.
The current 100% gain exclusion deal was made permanent for sales of QSBC shares that are acquired after September 27, 2010. So, shares issued recently, semi-recently or after you read this can potentially be classified as tax-favored QSBC stock. However, several rules and restrictions apply. Notably, you must hold the stock for more than five years to claim the gain exclusion.
Assuming your business is eligible for QSBC status, the following types of businesses will first need to be incorporated:
- Sole proprietorships,
- Single-member LLCs treated as sole proprietorships for tax purposes,
- Partnerships, and
- Multi-member LLCs treated as partnerships for tax purposes.
Important: The act of incorporating a business shouldn’t be taken lightly. Please talk with your tax and legal advisors before taking that step.
In general, QSBCs are treated the same as regular C corporations for all other legal and federal tax purposes. In other words, beyond the federal income tax gain exclusion and gain rollover breaks, the standard advantages and disadvantages of C corporation status apply equally to QSBCs.
Limitations on Excludable Gains
Congress imposed limits on the amount of gain that can be excluded from selling shares in a particular QSBC. For purposes of this article, we’ll refer to the amount of gain that qualifies for the gain exclusion break as the “eligible gain.” In any taxable year, a taxpayer’s eligible gain is limited to the greater of:
- 10 times the taxpayer’s basis in the QSBC stock that’s sold, or
- $10 million reduced by the amount of eligible gain already taken into account in prior tax years for dispositions of stock issued by the same QSBC (or $5 million if the taxpayer uses married filing separate status).
In effect, the $10 million (or $5 million) eligible gain limitation is a lifetime limitation for stock in a particular QSBC.
For example, Jo is unmarried. In 2026, she sells QSBC stock that she acquired in 2020. The stock has basis of $2 million. Jo sells the stock for $24 million, resulting in a gain of $22 million. She has never before excluded any gain from selling shares in this QSBC. Her eligible gain is limited to the greater of:
- $20 million (10 × $2 million basis of the stock), or
- $10 million reduced by eligible gains taken into account in prior tax years (if any).
In this case, Jo’s eligible gain limitation is $20 million, because that’s the greater of the two limitations. The remaining $2 million of gain is taxed as a garden-variety long-term capital gain that’s potentially subject to the 3.8% net investment income tax (NIIT) on top of the capital gains tax.
Here’s another example: Mark is unmarried. In 2026, he sells QSBC stock that he acquired in 2020. The stock has basis of $500,000. Mark sells the stock for $14.5 million, resulting in a gain of $14 million. His eligible gain is limited to the greater of:
- $5 million (10 × $500,000 basis of the stock), or
- $10 million reduced by eligible gains taken into account in prior tax years (if any).
In this case, Mark’s eligible gain limitation is $10 million, because that’s the greater of the two limitations. The remaining $4 million of gain is taxed as a garden-variety long-term capital gain that’s potentially subject to the 3.8% NIIT on top of the capital gains tax.
Gain Rollover Privilege
There’s also a tax-free gain rollover privilege for eligible QSBC shares. This privilege applies to gains recognized by an individual taxpayer, if the taxpayer elects gain rollover treatment.
Under the rollover rule, the amount of gain recognized is limited to the excess of QSBC stock sales proceeds over the amount reinvested to purchase other QSBC shares (replacement stock) during a 60-day period beginning on the date of the original sale. The rolled-over gain reduces the basis of the replacement stock. QSBC stock must have been held for more than six months to take advantage of gain rollover provision.
If the replacement stock is still QSBC stock when it’s sold, the gain exclusion break is available if the more-than-five-year holding period requirement is met. The holding period of the stock sold in the rollover transaction is added to the holding period of the replacement stock.
Important: The rollover provision allows a QSBC shareholder to sell shares on a tax-deferred basis without losing eligibility for the gain exclusion break when the replacement stock is eventually sold.
Will Your Shares Count as QSBC Stock?
Unfortunately, some stock won’t qualify as QSBC stock. To be eligible for the QSBC gain exclusion and gain rollover breaks, stock must meet several requirements, including:
- The stock must have been acquired by the taxpayer after August 10, 1993, and the taxpayer generally must have acquired the stock: 1) upon original issuance either directly or through an underwriter, or 2) by gift or inheritance.
- The stock must have been acquired in exchange for money, other property (not including stock) or services (not including services performed as an underwriter of the stock).
- The corporation must be a QSBC at the date of the stock issuance and during substantially all the period the taxpayer holds the stock.
- The corporation must also satisfy an active business requirement. To satisfy this requirement, at least 80% of the value of the corporation’s assets must be used in the active conduct of a qualified business.
- The corporation’s gross assets can’t exceed $50 million: 1) at all times on or after August 10, 1993, and before the stock was issued, and 2) immediately after the stock was issued.
For purposes of this rule, the value of the corporation’s assets is generally based on their adjusted basis in the hands of the corporation. However, contributed property is valued at fair market value at the time of its contribution. The corporation won’t lose its QSBC status if it grows and exceeds the $50 million threshold after the stock is issued.
In addition, qualified businesses don’t include service fields where the principal asset is the reputation or skill of one or more of its employees, such as:
- Health,
- Law,
- Engineering,
- Architecture,
- Actuarial science,
- Performing arts,
- Athletics,
- Accounting or financial services,
- Consulting, and
- Brokerage services.
Other types of businesses that are ineligible for QSBC status include: 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; and the operation of a hotel, motel, restaurant or similar business.
Other rules and restrictions may apply. For instance, a corporation can’t be a QSBC if it owns too much real estate that’s not used for qualified business purposes or if its assets include too much portfolio stock or too many securities. Talk with your tax advisor before concluding that a corporation will meet the definition of a QSBC
Right for Your Business?
You may think that conventional wisdom dictates that it’s best to operate privately owned businesses as pass-through entities. But that may not be the optimal choice if your venture would meet the definition of a QSBC if it was incorporated. The QSBC alternative offers three major upsides: 1) the potential for the 100% gain exclusion break when you sell your shares, 2) a tax-free stock sale gain rollover privilege, and 3) a flat 21% corporate federal income tax rate. Contact us to help assess whether QSBC status is right for your business venture under the current tax rules.
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