3 Important Tax Rules for Relocating Your Small Business

There are a lot of questions you want to ask (and probably have an attorney answer) before you relocate your small business from one State to another. This blog will alert you to three important tax rules for relocating your small business:

1. the six potential F Reorganization requirements
2. the relocation rules for your specific form of business
3. the need (or not) to obtain a new Employer Identification Number (EIN)

Understand the Six Requirements for F Reorganization

Warning – the six requirements are not written in plain English and can be a little daunting. Of all the rules you need to understand, making sure you understand the six requirements for an F reorganization and have met the criteria may be the most important. Why? Because in the case of F Reorganization, the “F” stands for free, as in tax free. Your move may subject you to unnecessary tax burdens if it doesn’t meet the six requirements. I am supplying portions of the IRS code describing each of the requirements below – if you don’t enjoy reading legalese, skip these bullets and go on to the next section.

• Immediately after the Potential F Reorganization, all the stock of the Resulting Corporation must have been distributed (or deemed distributed) in exchange for stock of the Transferor Corporation in the Potential F Reorganization.
• Subject to certain exceptions, the same person or persons own all the stock of the Transferor Corporation at the beginning of the Potential F Reorganization and all of the stock of the Resulting Corporation at the end of the Potential F Reorganization, in identical proportions.
• The assets and attributes of the Resulting Corporation [must be limited] immediately before the transaction)
• The Transferor Corporation [must be liquidated]

The final two requirements are in place to make sure the resulting reorganization qualifies as a “Mere Change” – simply put, your move really is about moving the business and not about a clever means of evading actual tax obligations.

• Immediately after the Potential F Reorganization, no corporation other than the Resulting Corporation may hold property that was held by the Transferor Corporation immediately before the Potential F Reorganization, if such other corporation would, as a result, succeed to and take into account the items of the transferor corporation described in section 381(c).
• Immediately after the Potential F Reorganization, the Resulting Corporation may not hold property acquired from a corporation other than the Transferor Corporation if the Resulting Corporation would, as a result, succeed to and take into account the items of such other corporation described in section 381(c).

Know the Rules for Moving Your Particular Business Form

When you are ready to move your business, you need to know the rules for moving your particular business form to a new state – these rules will vary depending on the form your business operates under, and some are more straight forward than others. The SBA gives a good overview of the rules, but advises, as do I, to talk over your move with an attorney, and to understand clearly the steps you will be expected to take as an LLC, Corporation, sole proprietor, or partnership.

It is likely that you chose your form of business for the tax advantages it offers. If you haven’t had an attorney review your current form of business to make sure you are getting the best tax advantage and legal protections, consider doing so before you make your move. Tax law changes over time. Understand what changes you may want to make before moving your business to a new State with a less than optimal business form.

Obtain a New Employer Identification Number (EIN) – Perhaps

This is another one of those cases where the answer on whether or not you need to obtain a new employer identification number (EIN) is, perhaps. Once again, the need to obtain a new EIN is controlled by your form of business. Gratefully, these rules are a little easier to understand, but they are far from crystal clear. For example, the SBA explains that corporations will not be required to obtain a new EIN if “conversion at the state level with business structure remain[s] unchanged.” If you’re not sure what is meant by conversion, you might not realize that you can keep your EIN.

If you aren’t sure whether or not you need a new EIN after a move, or want want help understanding these 3 important tax rules for relocating your small business, contact me, Elizabeth Lewis, at the Law Office of E.C. Lewis, P.C., home of your Denver Small Business Lawyer. Phone: 720-258-6647. Email: elizabeth.lewis@eclewis.com

Real Estate Services for Business Owners

Elizabeth Lewis provides the following real estate law services to small and medium sized business owners in Denver and throughout Colorado:

• Commercial real estate purchases
• Legal review of commercial real estate leases
• Protecting your assets