Navigating M&A Transactions for S Corporations with an Eye on QSBS Eligibility

Maher Abduselam, Esq., CPA

September 19, 2023

outlinedGiven the complexity and specificity of the topic regarding small and medium-sized business (SMB) mergers and acquisitions (M&A) involving an S corporation target and the potential qualification for Qualified Small Business Stock (QSBS) under Section1202 of the Internal Revenue Code, it's crucial to understand several key aspects to navigate this landscape effectively.

Understanding QSBS and Section 1202

Qualified Small Business Stock (QSBS) refers to shares in a C corporation that meet certain criteria set forth in Section 1202 of the Internal Revenue Code, allowing for a significant exclusion of gain from federal income taxes upon sale. This provision aims to encourage investment in small businesses by offering tax incentives to investors.

The Challenge with S Corporations

S corporations, known for their pass-through taxation feature, pose a challenge for QSBS eligibility because only C corporations can issue QSBS. If an S corporation issues stock, it cannot qualify as QSBS. Furthermore, to maintain QSBS status, the issuing corporation must remain a C corporation throughout “substantially all" of the stockholder’s holding period for the stock.

Strategies for S Corporations

For business owners looking to qualify for QSBS benefits despite starting as an S corporation, several strategies can be considered:

• Terminating S Corporation Election: If the business initially was a C corporation but later elected S status, reverting to a C corporation and issuing new QSBS can make future gains eligible for QSBS tax benefits. This requires careful planning to ensure compliance with the "substantially all" requirement.

• Restructuring for QSBS: This involves creating a new C corporation (newco-C) into which the S corporation contributes its assets in exchange for QSBS in the newco-C. This complex restructuring can enable the S corporation's shareholders to indirectly benefit from QSBS advantages.

• Recapitalization with Preferred and Common Stock: By converting to a C corporation and recapitalizing, it's possible to issue new common stock that qualifies as QSBS, alongside preferred stock representing the company's value at conversion. This approach can create QSBS benefits for new investments while retaining value for existing shareholders.

• Direct Conversion to C Corporation: Simply converting an S corporation to a C corporation can position the business to issue new QSBS, subject to meeting all other QSBS eligibility criteria.

Important Considerations

Eligibility Requirements: Businesses must navigate a complex set of rules to qualify for QSBS benefits, including restrictions on the type of business, the size of assets, and the holding period for the stock.

Tax Implications: The restructuring and conversion processes have significant tax implications, requiring careful planning and often the guidance of tax professionals experienced in QSBS matters.


While S corporations face hurdles in qualifying for QSBS benefits, strategic planning, and restructuring can open pathways to tax advantages. Business owners and investors should consult with tax professionals to explore the most advantageous routes for their specific situations, ensuring compliance with the intricate requirements of Section 1202.