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Special Capital Gains Exclusion

on Thursday, 3 November 2016 in Dirt Alert: David C. Levy, Editor

On October 14, 2016, the Nebraska Supreme Court held a taxpayer was eligible for the special capital gains exclusion based on a plain reading of Nebraska Revised Statutes section 77-2715.09, and the economic substance and sham transaction doctrines did not disallow the Nebraska special capital gains exclusion.

The special capital gains exclusion generally allows a taxpayer to exclude the capital gain from the sale of stock for Nebraska state income tax purposes if the parties satisfied five requirements:

• First, with limited exceptions, the stock being sold must have been acquired by the shareholder based on their employment with the corporation.
• Second, the corporation issuing the stock must, at the time of the first sale of the stock, have at least five shareholders.
• Third, at least two shareholders must be unrelated.
• Fourth, the unrelated shareholder or shareholder group must own at least ten percent of the capital stock of the corporation.
• Fifth, the shareholder must file a Form 4797 with the Nebraska Department of Revenue.

In Stewart v. Nebraska Department of Revenue, the Tax Commissioner disallowed a taxpayer’s special capital gains election because the taxpayer added additional shareholders just days before the sale of the corporation’s stock and solely to meet the five-shareholder requirement. The Tax Commissioner claimed the addition of the new shareholders lacked “economic substance” and constituted a “sham transaction.”

The Nebraska Supreme Court reversed the decision of the Tax Commissioner and allowed the capital gains exclusion because, based on a plain reading of the statute, the corporation had to have five shareholders only at the time of the first sale or exchange, of which two must be unrelated and holding at least ten percent of the capital stock of the corporation. Because the stock sale met the statutory requirements, the taxpayer’s election was proper.

This decision is good news for Nebraska owners of corporate stock who are considering a stock sale. Many times, an owner will not know with certainty whether or not a stock sale will close. If the sale does not close, the owner may be uncomfortable transferring stock to unrelated shareholders, such as long-time employees or charities. The Supreme Court’s holding allows more flexibility in structuring transactions that qualify for Nebraska’s special capital gains exclusion.

For additional information regarding eligibility for the special capital gains exclusion, contact Jesse Sitz or Garner Girthoffer.

Garner R. Girthoffer

Jesse D. Sitz

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500

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