Understanding Section 338(h)(10) and Section 336(e) joint Elections
When a buyer acquires the stock of a corporation, the historical "inside" tax basis of the target corporation's assets remains unchanged. This means any appreciation inside the company's machinery, contracts, real estate, or intellectual property cannot be depreciated by the new owner.
However, under **IRC Section 338(h)(10)** (or its parallel provision **Section 336(e)** for non-consolidated entities), if a corporate purchaser acquires **at least 80% of the voting power and value** of the stock of an S-Corporation or a consolidated C-Corporation subsidiary, the parties can make a joint election to treat the transaction as a deemed asset sale for federal income tax purposes.
The Residual Allocation Method (Treasury Reg. §1.338-6)
To determine the tax basis step-up and depreciation recapture, the purchase price plus assumed liabilities (referred to as the **Aggregate Deemed Sale Price - ADSP** for the seller, and **Adjusted Grossed-Up Basis - AGUB** for the buyer) must be allocated across the target's assets. The IRS mandates the sequential Residual Allocation Method, which divides assets into seven distinct classes:
- Class I: Cash and general bank deposit accounts.
- Class II: Actively traded personal property, certificates of deposits, and government securities.
- Class III: Accounts receivable, debt instruments, and mark-to-market financial assets.
- Class IV: Stock in trade, inventory, and other property held for sale to customers.
- Class V: Tangible personal property (machinery, computers, office furniture, vehicles) not included in other classes. This is where Section 1245 depreciation recapture usually occurs.
- Class VI: Section 197 Intangibles, such as patents, copyrights, customer relationships, trade names, and franchises, excluding Goodwill.
- Class VII: Goodwill and going concern value, capturing the residual purchase price that exceeds the combined fair market value of all other asset classes.
Ordinary Income Recapture vs. Capital Gains
While the buyer receives an invaluable step-up in depreciable tax basis, the S-Corp shareholders frequently face a severe tax penalty for electing Section 338(h)(10). In a pure stock sale, S-corp shareholders pay capital gains tax (usually capped at 20% federal plus state rates) on the difference between the stock purchase price and their stock basis.
In a deemed asset sale, S-corp shareholders pay tax based on the character of the target's underlying assets:
- Receivables (Class III) and Inventory (Class IV) gains are taxed at Ordinary Income Rates (up to 37% federal in 2026).
- Equipment gains (Class V) trigger Section 1245 Depreciation Recapture, converting capital gain back into ordinary income to the extent of historical depreciation deductions taken on the equipment.
- Intangibles (Class VI) and Goodwill (Class VII) generally generate capital gains, which are taxed at standard capital gains rates.
The Economics of the Make-Whole Premium
Because of this ordinary income recapture, the seller's aggregate tax liability under a deemed asset sale is almost always higher than under a stock sale. The difference is known as the **Seller's Tax Pain** (or incremental tax friction).
To incentivize the S-Corp shareholders to consent to the Section 338(h)(10) election, the buyer typically offers to pay a Make-Whole Premium. To find this premium, the tax pain must be "grossed up" for capital gains tax because the premium itself is treated as additional stock purchase price (which is taxable).
An election is financially optimal if the **Net Present Value of the Buyer's Tax Shield** (achieved through faster MACRS depreciation on equipment and 15-year straight line amortization on Goodwill/Intangibles) exceeds the **Make-Whole Premium**. If the joint surplus is positive, both parties can benefit by structuring the transaction as an asset sale.