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FAQ

When can you make a 338 H 10 election?
A Section 338(h)(10) election can be made when one corporation purchases the stock of another corporation, and the election must be made jointly by the buyer and the seller.
Who can do a 338 h )( 10 election?
The buyer and the seller jointly make a 338(h)(10) election. With this election, the buyer purchases the stock, which allows the target company to maintain non-transferrable assets (e.g. contracts) and remain a separate entity from a legal standpoint.
When can you 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.
What is the difference between a 338 g and 338 h )( 10 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.
How does section 338 h )( 10 work?
In simple terms, a 338(h)(10) is a tax election for a qualified stock purchase (QSP), which recharacterizes a stock purchase as an asset purchase for federal tax purposes. It remains a stock purchase for all other legal purposes, such as contracts and licensing (more on that later).
What are the major consequences of a section 338 h )( 10 election?
A selling S corporation shareholder may also be negatively impacted when agreeing to a Section 338(h)(10) election by the presence of an entity-level state tax that could be avoided for a straight stock sale. If this is the case, the purchase price should be further grossed-up to account for the additional tax.
When can a 338 h )( 10 election be made?
A Section 338(h)(10) election can be made when one corporation purchases the stock of another corporation, and the election must be made jointly by the buyer and the seller.
How do I file a section 336 E election?
Unlike a Section 338(h)(10) election, a Section 336(e) election is unilaterally made by the seller attaching a statement to its Federal tax return for the year of the acquisition. A Section 336(e) election is available in certain spin-off transactions under Section 355.
What is the advantage of a section 338 h )( 10 election?
A section 338(h)(10) election refers to an election under section 338(h)(10) of the federal tax code. If various conditions are met, the election allows the parties in a sale of stock of a corporation to treat the transaction for federal income tax purposes as if it had been structured as an asset sale.
What is a 338 election?
Section 338 Elections It's known as a Section 338 election. Under Sec. 338 of the Internal Revenue Code, a corporate buyer and the target company can jointly elect to treat a stock purchase/sale transaction as an asset purchase/sale transaction for federal income tax purposes.
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