Employee Stock Ownership Plan

I.R.C. § 1042

Overview of I.R.C. § 1042:

Internal Revenue Code (I.R.C.) Section 1042 provides a tax deferral strategy for business owners who sell their company to an Employee Stock Ownership Plan (ESOP). An ESOP is a retirement plan that allows employees to become partial owners of the company they work for by holding shares of the company’s stock. Section 1042 allows the selling owner to defer capital gains tax on the sale of the business, provided certain conditions are met.

How I.R.C. § 1042 Works:

  • Sale to ESOP: The business owner sells a portion or all of their shares to an ESOP. The ESOP must own at least 30% of the company after the sale for the seller to qualify for the tax deferral under Section 1042.
  • Tax Deferral: Instead of paying capital gains tax on the sale proceeds, the seller can defer these taxes by reinvesting the proceeds into “qualified replacement property” (QRP) within a specific time frame (usually 12 months before or after the sale).
  • Qualified Replacement Property (QRP): QRP generally includes stocks, bonds, or other securities of domestic operating companies. It does not include mutual funds, REITs, or other investment vehicles that are not directly tied to operating companies.
  • Tax Treatment: The tax basis of the sold stock is transferred to the QRP. This means that the deferred capital gains tax will be due when the QRP is eventually sold, unless another tax-deferral strategy is employed.
  • Stepped-Up Basis: If the QRP is held until death, the heirs receive a stepped-up basis, potentially eliminating the deferred capital gains tax.

Importance as a Tax-Advantaged Wealth Strategy:

  • Capital Gains Tax Deferral: One of the most immediate benefits is the deferral of capital gains tax. This allows the seller to reinvest the full amount of the sale proceeds, rather than the after-tax amount, providing a larger base for future growth.
  • Liquidity and Diversification: Business owners often have a significant portion of their wealth tied up in their business. Selling to an ESOP and taking advantage of Section 1042 allows them to diversify their holdings without an immediate tax penalty.
  • Business Continuity: ESOPs often result in higher employee morale, productivity, and retention, as employees have a vested interest in the company’s success. This can make the transition smoother and ensure the long-term viability of the business.
  • Estate Planning: The ability to transfer the QRP with a stepped-up basis can be a powerful estate planning tool, potentially eliminating the capital gains tax liability altogether.
  • Flexibility: The business owner can choose to sell only a portion of their stake, allowing them to maintain some level of involvement in the business while still reaping the benefits of Section 1042.
  • Community and Social Benefits: ESOPs can be a way to keep businesses locally owned and operated, which can be an important consideration for business owners who care about the long-term impact of their exit strategy on their employees and community.


In summary, I.R.C. § 1042 offers a tax-advantaged strategy for business owners considering an exit, providing benefits not just to the owner but also to the employees and the broader community. However, the rules are complex, and it’s crucial to consult with tax advisors and legal experts to ensure compliance and to optimize the benefits.