Now that all the talk about the fiscal cliff has ended, entrepreneurs are asking: 'Did I fall off the cliff or get hit by a car?'
With the new laws in place, you'll need to reassess to find out if you should adjust your individual and company tax strategies. If you didn't sell your company before 2013, your tax rates on future transactions are going to be higher.
To determine the best buy or sell approach, you should follow these six steps:
Know your constituents.
If your company is owned directly by an individual or a family, or if it received capital from venture capital, private equity, or angel funds, will make a difference in how the new tax rates will be applied, and the best way for you to act. Know your constituents, and how the new tax changes affect each of them, before you proceed.
Learn the new tax rules.
The new capital gains tax rate increases from 15% to 20%, and combines with the new Health Care Act investment tax of 3.8%, which results in an overall rate of 23.8%. If you sell your stock now, you'll effectively pay 8.8% more tax on it than those who were able to complete a transaction in 2012.
At least you now have certainty about how much you'll pay in taxes. Tax rates will not change or sunset automatically in the future, they will only change by an act of Congress.
Run the numbers.
Once you know your constituents and the rules for each, you can do a straightforward calculation. Your capital gains, if you have any, will be taxed at 23.8%. A interesting benefit to the increased capital gain rate structure is that now, those leftover dot.com capital loss carryovers that you accumulated are now worth more (23.8% vs. 15% to the extent they can offset capital gains)! Constituents with potential capital losses and capital loss carryovers will now be more interested in triggering a transaction that would allow them to offset higher capital gain taxes.
If venture capital, private equity, or angel investors are looking for an early exit, your hands could be tied, depending on how much control you gave up when outside capital came into the company. Venture capital and private equity funds have life cycles of their own. If a fund is near its end and those running it need to raise money for a new one, investors may push an entrepreneur to sell so they can show potential new investors a profitable liquidity event.
Weigh your own situation.
If you're an aging baby boomer entrepreneur, for instance, you may be finding the next generation has no interest in taking over your company. To solve a succession problem, you may opt to sell, which would present a strong opportunity for other entrepreneurial companies looking to grow--and manage higher capital gains tax rates.
Prepare to act.
Reassess your new post fiscal cliff playing field to your advantage by knowing the new tax rules, your constituents' motives, and various tax scenarios. This knowledge could push you to sell--or buy.