
To Disclose or Not to Disclose, That Is the Question
In mergers and acquisition (“M&A”) transactions, disclosure is a critical component of the due diligence process and overall deal success. Seeing what is “under the
I often work with entrepreneurs starting new ventures. While there are multiple considerations for new businesses, the first important item to address is entity formation, governance, and finance/ownership. This is the starting point to get your venture headed in the right direction.
When choosing an entity type, there are certain considerations you should be contemplating at the onset. These include:
Your answers to these questions will be critical in selecting the correct entity to set your venture and your partners up for maximum benefit. Most typically, we advise entrepreneurs to start c-corps or LLCs, and in certain cases, to consider using qualified small business stock. For this purpose, I am going to focus on a fairly common model for a tech company. This means the following:
If the above sounds applicable to your venture, you would be wise to consider whether forming a c-corporation and issuing Qualified Small Business Stock is applicable to your business.
Section 1202 of the Internal Revenue Code allows owners of small businesses to exclude all, or a portion of gains recognized from the sale of shares in a company from their income if (1) the stock is eligible to be treated as Qualified Small Business Stock; and (2) they have held such stock for 5 years or more. This is a significant tax incentive that can reduce your tax burden from 30+% of earnings to essentially zero.
In order to be eligible for QSBS treatment, the stock must be:
The IRS guidance defines Qualified Business in the negative. Essentially, Qualified Businesses are not:
Selecting the appropriate entity at the onset of your business journey is critical to set your company up for success. If you are starting a business that you hope to sell/exit in more than five years, and your business in a Qualified Business, the tax incentives under section 1202 can be very compelling and you should strongly consider incorporating as a subchapter c-corporation.
ABOUT THE AUTHOR
MANAGING PARTNER
The founder of Milgrom & Daskam, Jonathan (Jon) Milgrom advises businesses of all sizes and works across a variety of sectors. His diverse client-base includes companies in tech, software, fintech, health insurance, brewing and distilling, retail, graphic design, and other creative industries. He also advises a number of family-owned businesses.
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