For advisors who have business-owner clients looking to sell their companies, filing a form that steps up the tax basis of the business’s assets can increase the price the owner receives by 10%.

Most small businesses, and even some attorneys, are unaware of this tax strategy, known as an election 338(h)(10), which requires the owner to file a two-page form with the Internal Revenue Service. The process was explained in detail by Merle Erickson, a professor of accounting at the University of Chicago’s Booth School of Business, at the Investments & Wealth Institute’s Strategy Forum 2024 on October 1.

Erickson noted that only owners of S corporations can benefit from this election—yet these are the predominant business structures employed by many privately held companies. More than 80% of businesses with more than $1 million in sales are either S corps, LLCs or partnerships. Acquirers are likely to realize the tax benefits of a step-up in basis whether or not they share them with the seller.

How does this work? First, the sale of the business must be structured as an asset purchase. If it is structured as a stock swap—where the seller is compensated by receiving shares in the acquirer’s business instead of cash—the transaction is usually tax-free.

Erickson used the example of an Italian restaurant. Let’s say, for sake of simplicity, the owner carries its assets on the books at a value of $100,000. If an acquirer offers $1.1 million for the restaurant, that increases the value of the assets, including the building, kitchen equipment and goodwill, by 1,000%.

In effect, the acquirer just bought another $1 million in tax deductions. Erickson explained that, if one depreciates the assets over five years, it can increase the present value of the acquired company by 20%. The buyer then splits that extra 20% with the seller, who enjoys the extra 10% from the tax tactic.

That is, if the buyer tells the seller in the first place. The buyers might be perfectly happy to take advantage of sellers who don’t know about the revaluing of their assets, Erickson added. “Uninformed sellers get nothing” because the buyer is unlikely to educate them.

Indeed, he cited the example of a seller he met who used a lawyer unaware of election 338(h)(10) when negotiating the sale of the seller’s business and effectively forfeited all of the tax benefits to the acquirer. (The lawyer was supposedly a divorce specialist.)

Erickson also pointed to an advisor in the audience who had used the 338(h)(10) technique with several business owners. “Clients should get a piece” of the step-up in basis, he said.

One example of a private sale of a business that many advisors would be familiar with was the sale of Scottrade to TD Ameritrade. By using this technique, Scottrade was able to increase the price from three times revenues to 3.8 times revenues, Erickson said.