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FAQ

How does a 338 election work?
An Internal Revenue Code (IRC) Section 338 election is often advantageous for buyers in corporate acquisitions. Sec. 338 permits a corporation that makes a qualified stock purchase of another corporation to elect to treat such acquisition as an asset rather than a share acquisition for federal tax purposes.
Can an individual make a 338 H 10 election?
Limitations of 338(h)(10) election The buyer and seller (all stockholders) must jointly make the election 13 it cannot be unilaterally made by one side. For legal purposes, a 338(h)(10) election remains a stock sale despite being deemed an asset sale for tax purposes.
Can an LLC make a section 338 election?
However, an LLC taxed as a partnership is not eligible to make a 338(h)(10) election.
How does a Section 338 h )( 10 election differ from a section 338 g election?
A Section 338(h)(10) election is much more common than a Section 338(g) election because the 338(g) election results in two levels of tax, whereas a 338(h)(10) election results in only one.
Who pays the tax on a 338 g election?
Section 338(h)(10) Election In the acquisition of a subsidiary, the selling group, rather than the buyer, pays tax on the gain from the deemed sale of the target's assets since the target owned by the selling group. As such, the 338(h)(10) election is made jointly by the buyer and seller.
When can I make a 338 election?
338 election. This election can be made when the acquiring corporation (the buyer) makes a qualifying purchase of 80% or more of the target company's stock. The target company can be either a C corporation or an S corporation, and the buyer can be either a C corporation or an S corporation.
When can you make a 338 h )( 10 election?
A Section 338(h)(10) election may be made for a target corporation if a purchasing corporation has made a qualified stock purchase (QSP) of a target corporation from a selling consolidated group, a selling affiliate (as defined in Treasury Regulations § 1.338(h)(10)-1(b)(3)), or S-corporation shareholders.
What is a qualified stock purchase?
14A qualified stock purchase is the purchase of at least 80% of the total voting power and value of the stock of a corporation by another corporation during a 12-month acquisition period.
Who can make a 338 h )( 10 election?
Limitations of 338(h)(10) election The buyer and seller (all stockholders) must jointly make the election 13 it cannot be unilaterally made by one side. For legal purposes, a 338(h)(10) election remains a stock sale despite being deemed an asset sale for tax purposes.
How do I make a section 338 g election?
To make a 338(g) election for a target corporation, the purchasing corporation must acquire the target's stock in a qualified stock purchase (QSP).
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