Founders and investors in the US can invest in a small business or startup by acquiring qualified small-business stock (QSBS), which provides tax advantages. Section 1202 of the US Internal Revenue Code allows investors to exclude up to 100% of capital gains tax on certain small business stocks held for over 5 years. Almost US$24 billion flowed into QSBS-eligible companies in 2021, which demonstrates the eagerness of investors to capitalise on these tax incentives.

But QSBS offers other advantages aside from capital gains exclusion. From gain rollovers to basis adjustments, the US tax code for QSBS offers a dynamic set of benefits that savvy investors can take advantage of – if they adhere to all of the requirements, such as the QSBS holding period. Below, we'll share more details about each benefit of QSBS and the specific requirements that investors must abide by, including how long they must hold onto QSBS. Here's what you need to know.

What's in this article?

• What is qualified small-business stock (QSBS) in the US?
  
• QSBS eligibility criteria
  
• QSBS tax benefits
  
• QSBS holding period and timing
  

What is qualified small-business stock (QSBS) in the US?

Qualified small-business stock (QSBS) is a special type of stock in US companies that offers certain tax breaks. The goal is to incentivise people, particularly founders and early investors, to invest in small businesses for the long term. For investors, the primary advantage is to avoid paying a large chunk of the capital gains tax when they sell the stock, as long as they meet specific requirements.

QSBS eligibility criteria

The substantial financial advantages offered by QSBS aren't available to every business owner and investor. To qualify as QSBS, both the stock and the issuing corporation must meet a set of criteria that includes:

• Type of corporation: the stock must be from a C corporation. Other types of business entities, such as S corporations or LLCs, aren't eligible for issuing QSBS.

• Asset ceiling: the corporation's aggregate gross assets must not exceed US$50 million before or immediately after issuing the stock.

• Qualified business activity: the corporation must engage in a qualified trade or business. This rule excludes specific industries, such as hospitality, natural resource extraction and financial services, among others.

• Stock acquisition: investors should acquire the stock at its original issuance, directly from the corporation or via an underwriter. Secondary market purchases don't qualify.

• Holding period: how long the stock is held for is a key factor for eligibility. We'll explain more about this later.

• Usage of assets: at least 80% of the corporation's assets must be used actively in a qualified business throughout most of the investor's holding period.

• Conversion cases: stock acquired through convertible securities can qualify, but there are specifics that need to be considered, especially regarding the holding period.

QSBS tax benefits

Eligible QSBS investors gain several advantages by holding this type of stock.

Exclusion of capital gains tax

The most well-known advantage of QSBS is the exclusion of capital gains tax. Section 1202 of the US Internal Revenue Code allows investors to exclude up to 100% of capital gains on the sale of QSBS held for more than 5 years. This offers a substantial tax advantage for long-term investors in qualified small businesses in the US. With federal capital gains tax rates that can be as high as 20% – not to mention additional state taxes – the savings can be considerable. For investors seeking long-term growth, this tax break is a powerful motivator.

Deferral of gain through rollover

Section 1045 of the US Internal Revenue Code allows investors to roll over the gains from the sale of one QSBS to another and defer taxation when they reinvest the proceeds from a QSBS sale into a new QSBS within 60 days. This offers a tax-efficient way to move from one investment opportunity to another without facing immediate tax consequences. This provision is especially useful for investors who engage in capital rotation on a regular basis to maximise gains.

Step-up in basis

Beneficiaries who inherit QSBS from someone else can benefit from a "step-up" in basis to the fair market value of the stock at the time of the original owner's death. This resets the stock's cost basis, often reducing the amount of capital gains tax owed when the stock is sold. If someone has inherited stock, they will need to work with a tax advisor who understands the specifics of your situation. But in most cases, the step-up in basis can offer substantial tax savings and simplify recordkeeping for heirs.

State tax benefits

Some US states offer their own QSBS tax benefits that align with federal incentives, while other states might offer partial benefits or none at all. Because of this variation, state-specific tax planning is important for maximising the utility of QSBS advantages. Pay careful attention to state tax benefits in order to optimise your tax situation.

Limitation on taxable amount

There's a limit on the amount of capital gains that can be excluded: either US$10 million or ten times the adjusted basis of the stock, whichever is greater. But regardless of this limit, the exclusion is still quite generous and allows for substantial gains before any tax kicks in.

QSBS holding period and timing

The holding period is the foundation of QSBS eligibility. The rule says that the investor must hold onto the stock for a minimum of five years, starting the day after the stock is acquired, to qualify for the tax benefits under Section 1202. For stock obtained through convertible securities – such as convertible notes, options or warrants – the holding-period clock only starts ticking after the conversion into stock. The goal of the five-year rule is to encourage long-term investment into small US businesses, thus supporting economic growth.

Here's how the five-year QSBS holding period can be adhered to:

• Recording the start date: the exact date on which the stock was acquired should be noted, or in the case of convertible securities, the date on which they were converted into stock.

• Tracking holdings: accurate and comprehensive records should be kept for stock purchases and conversions. This will serve as evidence for the holding period.

• Consulting tax advisors: tax laws are subject to change and professional advice can help with keeping track of these changes in relation to the holding period.

• Reviewing asset usage: this involves keeping an eye on the company's asset allocation. At least 80% of the assets must be actively used in a qualified business for most of the holding period.

• Planning the exit: if selling is on the cards, the five-year threshold needs to have been crossed to take advantage of the tax benefits.

How to save money when incorporating a business

While some incorporation fees are unavoidable, it's possible to lower your business's costs by handling as much as possible in-house and seeking professional help when necessary. Here are a few key strategies for saving money:

• DIY incorporation: If your business structure is straightforward and you're comfortable with paperwork, filing the incorporation documents yourself can save you hundreds or even thousands of dollars in legal fees. Online resources and guides are available to help you through the process.

• Compare registered agent services: Registered agent fees vary between providers. Compare prices and services from different companies to find the best deal for your needs.

• Consider forming an LLC: Limited liability companies (LLCs) are often simpler and less expensive to form than corporations, making them a cost-effective option for small businesses.

• Choose the right location: Some locations have lower filing fees and franchise taxes than others. Research different places to see which ones have the most favourable business environment for your industry and budget. Delaware is a popular choice in the US for its business-friendly laws and low fees, for example.

• Take advantage of online legal services: Online legal services offer affordable packages that can guide you through the incorporation process and provide templates for necessary documents. Some might even have discounts and promotions for new customers. This can be less expensive than hiring an attorney.

• Negotiate professional fees: If you need to hire an attorney or accountant, don't hesitate to negotiate their fees. Some professionals might offer discounts for startups or small businesses.

• Plan for ongoing costs: While saving on initial incorporation costs is important, make sure to factor in ongoing expenses such as annual report fees, franchise taxes and registered agent fees.