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financeguru2, Financial Advisor
Category: Finance
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Experience:  Several years of experience in wealth management for high net worth individuals
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S Corp with AE&P from prior years (as a C), in

Customer Question

S Corp with AE&P from prior years (as a C), in determining "passive" income for the 25% disqualifying test, is sale of the company's stock or assets considered "Passive"?
Submitted: 1 year ago.
Category: Finance
Expert:  financeguru2 replied 1 year ago.

Hello. To answer your question, the test you are talking about is contained in Section 1375 of the Internal Revenue Code. Under (b)(3) of that section, the definition of passive income for the test is contained in Section 1362(d)(3). Under Section 1362(d)(3)(C)(i), passive income includes interest, dividends, royalties, rents, and annuities. Therefore, sales of company assets would not count toward the test, since they are operating assets rather than passive assets. Sale of the company's stock would also not count toward this requirement, since that would be income to the shareholders. Please feel free to respond if you have any other questions to clarify this answer. If you are completely satisfied with the answer, please rate the answer. Otherwise, please respond to me before rating. Thank you.

Customer: replied 1 year ago.
Company will be selling "rights to represent certain clients", hopefully a capital asset, doesn't rule apply to cap assets?
Expert:  financeguru2 replied 1 year ago.

In that case, it would depend on the intent. If the corporation was holding the rights as an investment capital asset, then selling the rights would be passive income generated from a passive activity. If the corporation was simply holding the rights in its ordinary course of business to produce operating income, that activity would not be a passive activity, and as a result, the income would not be passive. Feel free to respond if you have any other questions on this topic.