Taxpayers are often uncertain whether they hold stock in a company that is eligible for the qualified small business stock exclusion. This discussion explores how to determine whether a company is engaged in a qualified trade or business, which is a sub-requirement to qualify for the exclusion.

Sec. 1202 was enacted to incentivize investment in certain small businesses by permitting gain exclusion upon the sale of qualified small business stock (QSBS). This 30-year-old Code section is very popular, especially since 100% of gain is excluded for QSBS issued after 2010. However, due to limited guidance from the IRS and Treasury, taxpayers are often left wondering whether they hold stock in a company that is engaged in a qualified trade or business (QTB), which is one of the sub-requirements to qualify for the exclusion.

For purposes of the QSBS exclusion, a QTB does not include performing services in certain fields: health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, or any trade or business in which the principal asset is the reputation or skill of one or more of its employees. The definition of a QTB also excludes any business in banking, insurance, financing, leasing, investing, or farming, and any hotel, motel, or restaurant (Sec. 1202(e)(3)). As such, QSBS does not include investments in service-oriented businesses but does include investments in other industries, such as manufacturing, technology, research and development, and software.