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Friday, October 29, 2010

The Many Sizes of "Small"

It is amazing, and perhaps odd, that small businesses are defined in so many different ways in the federal tax law. The recently enacted Small Business Jobs Act illustrates this well. The special credit carryback rules apply to small businesses with average annual gross receipts of $50 million or less. The Section 1202 qualified small business stock gain exclusion refers to a C corporation with $50 million or less of assets. The allowance of a medical deduction in computing self-employment tax refers to small as being a sole proprietor (regardless of gross receipts or asset value).

I've got an article in the 10/28/10 AICPA Corporate Taxation Insider on this topic with several illustrations of "small" in the federal tax law. I contrast this non-systematic approach with that of the Small Business Administration that has a system and recognizes that "small" may vary from industry to industry.

In addition to relevance for federal tax incentive rules or rules to relieve small businesses from some burdensome rule, "small" is also under consideration for some multistate bill, such as H.R. 5660 and the MTC model sales tax notice proposal.

I've got more information and links in the article - "The Many Sizes of "Small"".


Anonymous said...

Prof. Nellen,
Reading 1202, it also looks like it can be combined with a sister LLC for even greater tax advantage, especially for IP-related businesses. The C corp owns IP, like a patent, which it licenses to the LLC. The LLC is the operating company, which does the sales & marketing and generates operating revenue. P&L from the LLC's operations passes through to the members, but can be allocated to minimize the passthrough to the C corp. However, on the sale of the underlying patent, the proceeds of the sale go to the C corp. So does someone save a lot on taxes or does someone go to jail?

Anonymous said...

And actually I guess that there's no need for the C corp to be a member in the LLC in the first place. It can be more arm's length than that. It's just a license and royalty between them.