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New Tax Incentive for Long-Term Equity Investments

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NEW TAX INCENTIVE FOR LONG-TERM EQUITY INVESTMENTS

There has been a great deal of public discussion about the increased individual and corporate income tax rates and general harsh treatment of upper income taxpayers under the Omnibus Budget Reconciliation Act of 1993. However. there has been scant attention to what may, in fact, prove to be a silver lining in that tax cloud - the newly authorized capital gains exclusion for the stock of certain companies. Under the Act. non-corporate holders of stock in "qualified small businesses" can escape tax on up to one-half of any gain from the sale of that stock which they have held for at least five years.

1. Qualified Small Businesses

The new tax benefit is only available if the issuing corporation ("Issuer") is a qualified small business on the date of the stock issuance and during "substantially" all of the period that an investor holds its stock.

In order to qualify as a small business. an Issuer must satisfy the following requirements:

A. Non-Qualifying Corporations: The corporation cannot be an S corporation; a domestic international sales corporation that has made an IRC section 936 election: a regulated investment company: a real estate investment trust. a real estate mortgage investment conduit or a cooperative.

B. Conduct of Active Business: It must use at least 80% (by value) of its assets (including intangible assets) in the actual conduct of a "qualified trade or business." Assets held to meet reasonable working capital needs will be treated as used in the active conduct of a trade or business.

A qualified trade or business is any trade or business other than those involving tree performance of service in the fields of health. law. engineering. architecture. accounting, actuarial science. performing arts. consulting. athletics, financial services.

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