Common Contract Concerns for Community Associations

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Most community associations in Florida operate with the assistance of outside vendors. As such, many community associations do not have in-house staff to pressure wash sidewalks or maintain the elevators. Communities often have a compilation of contracts with multiple vendors ranging from one-page estimates with no contractual provisions other than price, to lengthy contracts with exhibits and many pages of small print.

Arguably, every provision in each contract is important, but there are three specific provisions that are most relevant today. With increasing insurance costs, contractor unavailability and market fluctuations, many contracts either ignore these important terms, or include creative and vendor-friendly drafting that puts the Association at a significant disadvantage. 

Clause 1: Termination

It is a common myth that all contracts in Florida can be terminated for convenience with 30 days written notice; however, in Florida, the general rule is that unless the contract specifically provides otherwise, a contract can only be terminated when one party breaches a material term of the contract. Limited termination rights can be desirable if the association has favorable pricing or exclusivity with a specific vendor, but limited termination rights provide no flexibility.

Most community associations prefer the flexibility of being able to terminate an agreement with or without cause. If an association wants this flexibility, the contract must expressly state that that the association may terminate with or without cause.

Additionally, even if an association has the right to terminate without cause, it should also be aware of any termination penalties in the agreement and should read the entire agreement. There are several contracts providing that the association may terminate without cause, but another part of the contract provides that there is fee to terminate for convenience. Termination fees vary, but anything above zero should be included in the Board’s consideration.   

Clause 2: Limitations on Liability and Exculpation Clauses

An exculpation clause seeks to limit the contractor’s liability for his or her negligence, or for any claim whatsoever arising out of the agreement. These provisions effectively state that the contractor’s maximum exposure for any claim is the price of the contract, or sometimes three months of the monthly fee, or in other cases a nominal sum like $1,000.  For example, if a contractor is paid $10,000 for a project and causes $250,000 of damage and injury, the contractor and its insurance carrier will argue that the total exposure is $10,000. If enforced, the community association will be in a very poor position.

Recently, some contractors have become more aggressive in including these liability limits in their agreements. When challenged, the contractors routinely respond that the provision is required by their insurance carrier, but the carrier wants this provision because it benefits from capping its exposure to $10,000 while providing $1,000,000 of coverage.   

In Florida, exculpation clauses are generally looked on with disfavor, but they can be enforceable. If it is determined that the community association and the contractor had equal bargaining power, and if the language in the contract is clear and unequivocal, a contractor can potentially avoid significant liability for its own negligence. This means an association may be without recourse when there is significant damage or liability.

Thus, it is critical to clearly review proposed agreements to determine if they include exculpatory language. As noted above, the contractor may carry a lot of good insurance, but that insurance may be irrelevant if the contractor has clearly limited its exposure to an amount that may be even less than the contractor’s deductible.

Clause 3: Price Escalations

Lingering supply chain issues from the pandemic, inflation and demand fluctuations arising from recent hurricanes all create uncertainty and price risk. A painter, for example, may not know if their overhead, material and labor costs will be remotely similar in six months. Conversely, community associations have fixed budgets and limited sources of revenues. The community association wants assurances that the negotiated contract price will be the same on the day of signing and the day the work begins. 

As a result, some contractors include crafty language allowing them to pass through all price increases resulting from ambiguous causes, such as “anything beyond the contractor’s control.” Under this standard, every price increase for any reason could be unilaterally passed through to an association and without its approval.

If a community association wants a fixed price agreement that hedges its risk against market conditions and unilateral increases, it is imperative that it includes a fixed price and also reviews the agreement for any provisions that would allow the contractor to unilaterally pass through increases without consent, as this risk should be included in the fixed price at signing.

In summary, both simple and complex agreements can have significant implications for community associations. These contractual issues exist in many agreements and are negotiable. If an association wants flexible termination rights, fixed costs and favorable recovery options, it should have these agreements reviewed by legal counsel during negotiations – not after. One recommendation is to include a proposed agreement as part of bidding package so that contract negotiations start with neutral or favorable language on these key terms. Additionally, community associations should employ a standard addendum for short estimates or simple contracts that include minimal and favorable terms such as insurance, timely performance and termination rights.

If you have questions concerning your community association’s contract clauses, please contact a Varnum real estate attorney.

Varnum Expands Estate Planning and Private Client Services Offerings with Partner Rebecca Grove and Legal Specialist Ken Horn

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Varnum is pleased to announce that Rebecca Grove and Ken Horn have joined the firm’s Estate Planning Team as Partner and Legal Specialist, respectively.

Based in the firm’s Birmingham office, Grove is an experienced attorney representing high-net-worth individuals, charitable organizations, and family offices in connection with estate planning and tax strategies, as well as art law matters. She is a contributing author for LexisNexis® and has held leadership roles in numerous cultural and educational organizations across Southeast Michigan.

“We’re delighted to welcome Rebecca and Ken to the firm,” said Varnum Executive Partner Scott Hill. “With more than 20 attorneys focused on estate planning and services for sophisticated individuals, their expertise and long-standing reputation in Southeast Michigan will be beneficial for our firm and clients alike.”

Grove joins the firm from Honigman LLP, where she led the Private Client Practice Group and previously served as a member of that firm’s Board of Directors and Executive Committee. She is the 21st attorney who has recently joined the firm. Horn also joins the firm from Honigman.

“I’m thrilled to join Varnum’s talented Estate Planning Team and look forward to working with clients across Michigan, Florida and beyond,” said Grove. “Varnum’s platform and commitment to growth are truly attractive and will benefit my clients.”

Grove graduated with honors from Duke University School of Law. She additionally earned an LL.M. degree from Georgetown University Law Center, also with honors. She attended the University of Michigan for her undergraduate degree, graduating with highest distinction.

Horn attended Roosevelt University in Chicago for his Legal Assistant’s Certificate. He received his undergraduate degree from Columbia College in New York.

“We’re very pleased to be working with Rebecca and Ken,” said Tom Kyros, Partner and Co-Leader of Varnum’s Estate Planning Team. “We’re excited about the synergies among our practices and these additions to our team’s presence in Southeast Michigan.”

Luis Avila Named to Notable Leaders in DEI by Crain’s

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Varnum partner Luis Avila has been selected by Crain’s Grand Rapids Business for inclusion in Notable Leaders in DEI, in recognition of his diversity, equity and inclusion efforts and influence in the Grand Rapids business community.

A labor and employment attorney, Avila represents clients under the various state and federal statutes that govern the employment relationship, including the Elliott-Larsen Civil Rights Act, the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Family and Medical Leave Act.

Avila has served on Varnum’s Diversity, Equity and Inclusion Committee for more than ten years, serving as co-chair and chair for the past five years. Under his leadership, the committee was the driving force for the firm’s participation in the Mansfield Rule 5.0 certification process, a program for law firms designed to boost the representation of historically underrepresented lawyers in firm leadership. The committee is also focused on initiatives that ensure minority attorneys receive meaningful work and mentorship as well as the development of diverse attorney talent through a scholarship program. 

In addition to his professional activities, Avila is very active within the West Michigan community. He currently serves on the boards of Grand Rapids Downtown Development Authority, Mary Free Bed, Grand Rapids Symphony and the West Michigan Hispanic Chamber of Commerce, including as the former Chair of the latter two.

Notable Leaders in DEI were profiled in the May 29 issue of Crain’s Grand Rapids Business.

NLRB General Counsel Targets Non-Compete Agreements as Unlawful

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On May 30, 2023, the General Counsel for the National Labor Relations Board (“NLRB”), Jennifer Abruzzo, issued GC Memo 23-08 requiring Regional Directors to submit cases involving “arguably unlawful” non-compete agreements to Advice. As in McLaren, the General Counsel’s view is that offering, maintaining and enforcing an overbroad non-compete agreement creates a chilling effect on employee exercise of Section 7 rights. The General Counsel has urged the Board to adopt the standard that a provision in an employment agreement violates the Act if it “reasonably tends to chill employees in the exercise of Section 7 rights unless it is narrowly tailored to address special circumstances justifying the infringement on employee rights.” The General Counsel stated that narrowly tailored non-compete agreements may be justifiable; however, she forecast that it is “unlikely” that an employer’s justification for requiring a non-compete agreement with low and middle-wage workers will be justifiable.

The General Counsel’s Memo provided the following examples of how she believes overbroad non-compete provisions “chill” employees’ ability to engage in protected concerted (group) activity or the individual exercise of Section 7 rights:

  • Discourages employees from threatening to resign in support of a demand for better working conditions;
  • Discourages employees from carrying out group threats to resign for the purpose of securing better working conditions;
  • Prevents employees individually or as group from seeking or accepting employment with a competitor for the purpose of securing better working conditions;
  • Prohibits former employees from soliciting their former co-workers to go to a competitor to secure better working conditions; and
  • Prevents employees from seeking and accepting new employment for the purpose of organizing a new workplace.

The GC Memo sets forth the views of the NLRB’s General Counsel and does not necessarily represent the views of the Board. The standard urged for adoption by the General Counsel was submitted to the Board for consideration in the General Counsel’s brief to the Board in Stericycle, Inc., 04-CA-137660. Varnum’s Labor & Employment Group will continue to monitor and report on this important issue. In the meantime, existing employment agreements and handbook policies regarding non-competition and non-solicitation should be reviewed and updated as necessary. 

Please contact your Varnum attorney with any questions.

2023 Summer associate Charlotte Jolly contributed to this adviosry. Charlotte is currently a student at Wayne State University Law School.

SCOTUS Restrains Wetland Regulation By Narrowing “Waters of the United States”

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The US Supreme Court has just handed down a highly anticipated decision in Sackett v. EPA, reining in the federal government’s ability to regulate wetlands under the Clean Water Act (CWA). Specifically, this ruling provides important clarity on whether CWA applies to wetlands not directly adjacent to “waters of the United States.”

The Sacketts, the Idaho property owners that have battled the federal government in this case for many years, sought clarification from the Court on whether the federal government could regulate wetlands on their property and prevent the couple from building on their land. Specifically, the Sacketts’ property contained wetlands near a ditch that fed into a non-navigable creek that in turn fed into Priest Lake more than 300 feet away from their property. The Court ruled unanimously that the Sacketts were not subject to federal CWA permitting, but split 5-4 on the CWA’s applicability to adjacent wetlands.

Justice Samuel Alito, the majority opinion’s author, held that, “the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right,’ so that they are ‘indistinguishable’ from those waters.” In sum, the Court established a two-part test to determine if an adjacent wetland falls within the definition of “waters of the United States” so as to be under the CWA’s jurisdiction: (1) a party must establish “that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and (2) the wetland has a ‘continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” In essence, the Court found that the CWA applies to a particular wetland only if it blends or flows into a neighboring water that is a channel for interstate commerce.

In the case of the Sacketts, the Court ruled that the Sacketts’ wetlands were “distinguishable from any possibly covered waters.” Consequently, the CWA did not apply, and the federal government could not regulate the Sacketts’ building activities. This narrow reading of the CWA is a win for land developers, farmers and others in the energy sector who’ve recently experienced excessive enforcement of environmental regulations. 

Although this ruling has a large impact around the country, its significance is much smaller in Michigan, which has its own wetland statute (Part 303 of Michigan’s Natural Resources and Environmental Protection Act) that is more restrictive than the CWA’s rule.

For more information about this landmark case, or wetland regulation contact a member of Varnum’s Environmental Law Practice Team.

Varnum Welcomes Partner Charles Thomson to Real Estate Team in Naples

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Varnum is pleased to announce that Charles Thomson has joined Varnum’s Real Estate Practice Group as a partner. He is based in the firm’s Naples office.

Thomson is an experienced real estate attorney who has served both as general counsel for a large full-service residential and commercial real estate development and construction company as well as in private practice. He joins the firm from Seagate Development Group LLC, where he acted as chief legal officer for the company and its 40+ affiliated entities.

“We’re pleased to welcome Charles to the firm and to our growing Naples office,” said Varnum Executive Partner Scott Hill. “His experience and unique background adds a new perspective to our national real estate team.”

Thomson’s practice includes representing clients in a variety of commercial and residential real estate transactions as well as development and redevelopment projects, commercial leasing, construction, equity and debt structuring and business entity/joint venture formations. He has represented public and private developers, contractors, lenders and investors in projects including multi-phased retirement communities, multi-family apartment complexes, mixed use assets and residential and non-residential condominium projects.

“Charles’ experience with a large development group, including the development of an affiliate title insurance practice, adds another dimension to the expertise we provide for clients,” said partner Tom Forster, who leads the Naples office. “We’re thrilled to welcome him to the office and to the real estate team.”

Thomson received his law degree from the University of Florida, Frederic G. Levin College of Law. He additionally holds a Master of Science in Real Estate from the University of Florida, Hough Graduate School of Business and undergraduate degree from the University of Florida.

Thomson is the 18th attorney to join Varnum within the past 12 months, in furtherance of the firm’s growth across Michigan and Florida.

Varnum Welcomes 2023 Summer Associates

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Varnum is pleased to welcome 12 law students to the firm’s 2023 summer associate program.

“We’re very excited to welcome this talented group of future lawyers to the firm,” said Varnum partner Tim Monsma, Chair of the firm’s Associate Recruiting Committee. “This class is one of the largest in recent years and our largest southeast Michigan group ever. It’s a direct reflection of the firm’s growth mentality across practices, industries and geographies.”

Varnum’s 2023 summer associates are:

  • Cole D. Anderson, Wayne State University Law School
  • Mariah E. DeHoop, Indiana University Maurer School of Law
  • Brady M. Diller, Washington University School of Law
  • Isaac L. Houskamp, University of Michigan Law School
  • Charlotte E. Jolly, Wayne State University Law School
  • Dilan J. Kama, Wayne State University Law School
  • Silas M. Kok, University of Notre Dame Law School
  • Kathleen Z. Lok, University of Michigan Law School
  • Julia S. Moran, Michigan State University College of Law
  • Grace K. Nyikes, Georgetown University Law Center
  • Zachary A. Swift, University of Michigan Law School
  • Alexis N. Tillery, University of Detroit Mercy School of Law

Varnum’s summer associates are based across the state in the firm’s Michigan offices. They receive assignments in various legal practices and have the opportunity to join in client meetings, court hearings, conference calls and see the firm’s attorneys in action. The experience is designed to give law students a better understanding of the firm, its various practices and client base. In addition, the students take part in networking and community projects throughout the ten-week program.

Varnum Welcomes Labor & Employment Partner Christopher Kazanowski

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Varnum is pleased to announce that Christopher Kazanowski has joined Varnum’s Labor and Employment Team as a partner. He is based in the firm’s Novi office.

Kazanowski is seasoned labor and employment attorney who joins Varnum directly from Rocket Central LLC, where he served as the second highest-ranking labor and employment team attorney supporting the Rock Family of Companies.  Among his accomplishments while at Rocket Central, Kazanowski served as lead internal labor counsel related to the company’s $1.2 billion acquisition of the fintech app Truebill, Inc. in 2021.

“In the wake of unprecedented activity impacting employers, we are thrilled to welcome Chris to Varnum’s management-focused Labor and Employment team,” said Ron DeWaard, Chair of Varnum.

In addition to bringing his extensive in-house experience, Kazanowski has served as outside employment counsel for businesses, litigated state and federal cases across the country and performed due diligence and transaction agreement review for mergers and acquisitions while a partner in private practice at a Detroit-based law firm. At Varnum, he will continue to provide advice and counsel to management regarding compliance with the many state and federal statutes that govern the workplace and defend claims alleging violation of the Fair Labor Standards Act (FLSA), Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), the Occupational Safety and Health Act (OSHA), the National Labor Relations Act (NLRA) and FHA.

“Chris brings an exceptional perspective having served as a senior in-house attorney and in private practice,” said Maureen Rouse-Ayoub, Varnum’s Labor and Employment practice team leader, “Our clients will benefit from his unique experience.”

Kazanowski graduated from Emory University School of Law and is currently a Master of Laws Candidate at Wayne State University Law School. He received his BA degree with distinction from the University of Michigan. He is admitted to practice in Michigan and Georgia.

Kazanowski is the 19th attorney to join Varnum within the past 12 months, in furtherance of the firm’s growth across Michigan and Florida.

Five Frequently Asked Questions About Divorce Property Division in Michigan

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For many couples, dividing assets and debts is one of the most difficult parts of a divorce. Although a stressful process, the valuation of assets is extremely important, particularly real estate, businesses and deferred compensation plans. For instance, if a couple speculates as to the value of a business, any agreement based upon the value may be impossible to fulfill. This may prevent the ability of both spouses to move forward financially and can even destroy a business which once provided the family with a great standard of living.

1. What Does Equitable Distribution Mean in a Divorce Case?

Equitable distribution is the process of dividing marital and divisible property in court. In a perfect world, spouses would negotiate the division of their marital property without a judge’s involvement. Of course, most spouses don’t divorce if they’re finding it easy to cooperate. If they can’t come to an agreement (which is not out of the ordinary), the court will schedule a hearing and divide marital property using a theory of equitable distribution. Marital property includes both assets and debts. Based on this theory, a judge will split the couple’s property 50-50 unless such a split would be inequitable or unfair. When a judge assesses the fairness of a split, they consider a series of factors, some of which are:

  • Each spouse’s income, debts and property
  • How long the marriage lasted and each spouse’s age
  • Ways in which a spouse directly or indirectly contributed to the other’s educational and professional opportunities
  • A custodial parent’s need to occupy or own the marital home or other household items
  • Both spouses’ physical and mental health
  • Tax consequences related to the property division
  • Any other factors that are “just and proper”

Note that the court will not consider child support and alimony payments when dividing marital property.

2. What Is Marital Property and How Much Is It Worth?

For the purposes of property division, courts classify property into three categories:

  • Marital Property: This category includes any income, assets, property and debts accumulated during the marriage. Marital property can include wages, pension and retirement funds, investment accounts, real estate, personal property, mortgages, car loans and credit card bills.
  • Separate Property: Spouses typically do not get a share of their partner’s separate property, which includes pre-marriage assets and debts as well as gifts or inheritances that someone specifically gave to one spouse and not the other. It’s important to note that separate property can transform into marital property if it is commingled, meaning mixed with marital assets. For example, if a spouse uses an inheritance to buy a jointly-titled asset, it might become marital property.
  • Divisible Property: There’s always some time that passes between when spouses separate and when the court gets around to handling property distribution, and this category exists to deal with assets that the spouses receive during that period as well as assets that change in value during that period. Note that an asset that was earned before the date of separation will still count as divisible property if it’s received after separation.

3. Can a Prenuptial Agreement Protect My Assets?

Nuptial agreements can occur either before (prenuptial) or during a marriage (postnuptial). In a nuptial agreement, you and your spouse define which property is marital and which is separate. This can streamline your property division process during a divorce.

Not every nuptial agreement is valid, however. Spouses can dispute the validity of a nuptial agreement if they didn’t enter it voluntarily, if it was based on fraud or misrepresentations, or if it wasn’t properly signed. Even if a couple doesn’t have a nuptial agreement, they can still negotiate a separation agreement, which is an out-of-court property settlement that divides marital and divisible property and identifies separate property. A separation agreement can also resolve child custody and support issues. However, it’s important to keep in mind that once a couple enters a separation agreement, it will become legally binding and won’t be easy to change. Couples should always get advice from a lawyer before entering a separation agreement.

4. Who Gets to Stay in Our House?

If a couple has minor or dependent children, the parent who has primary physical custody may get to stay in the marital home. However, that spouse will need to consider whether they can afford to pay the remaining mortgage and other costs before trying to stay in the house.

Sometimes, the best option for both parties is to sell the marital home and divide the proceeds.

5. How Are Businesses and Real Estate Divided?

In terms of real estate, the housing market can be a roller coaster, as the value can fluctuate based upon location and market forces. Rather than estimating the value, an appraisal is necessary to determine market value. Then, an agreement must be reached about who will be awarded specific properties.

When looking at businesses, each is truly unique. The value of a business consists of analyzing financial data for several years as well as looking at recent trends. A proper business valuation is important to ensuring a realistic and fair division of assets.

Other Factors to Consider

Frequently, executives enjoy deferred compensation based upon job performance and company loyalty. Accurately accounting for compensation benefits earned during the marriage, but not yet received, is critical to a fair division of assets. If a couple does not value such an asset, one spouse may end up with a windfall and the other shortchanged. As a result, couples facing divorce should consult with experienced legal counsel about asset valuation to ensure that the division of their assets is based in reality and not speculation.

If you have any questions, please contact a member of Varnum’s Family Law Practice Team.

Summary of IRC Section 1202 Qualified Small Business Stock

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Under IRC Section 1202, noncorporate taxpayers generally may exclude 100% of their gain (subject to a per-issuer limitation) from the sale or exchange of qualified small business (“QSB”) stock if the QSB stock is acquired after September 27, 2010 and has been held for more than five years.

Qualified Small Business Eligibility

Stock of a corporation is QSB stock if the following requirements are met:

  • “C” Corporation. The stock must be issued by a domestic “C” corporation after August 10, 1993.
  • Original Issuance. The taxpayer must have acquired the QSB stock at original issue (including through an underwriter) in exchange for money or property other than stock or for services.
  • Gross Assets Test. The corporation’s gross assets must be $50 million or less both before and immediately after the stock is issued.
  • Stock can continue to be QSB stock if the corporation’s assets exceed $50 million after the issuance of the stock; however, once the $50 million threshold has been exceeded, the corporation will not be permitted to again issue stock that will qualify as QSB stock.
  • The determination of gross assets is generally determined by reference to the amount of cash and the adjusted tax basis of other property (fair market value in the case of contributed property).
  • Active Business Requirement. At least 80% of the corporation’s assets (based on value) must be used in the active conduct of one or more “qualified trades or businesses.”
  • Qualified trades or business are any trades or businesses other than specified business engaged in providing services (e.g., health, law and those relying on the reputation or skill of employees), finance, farming, certain natural resource production or extraction or a lodging or restaurant business.
  • Five-Year Holding Period. In order to qualify for the exclusion, the taxpayer must hold the QSB stock for more than five years.
  • Stock Owned by Partnership or S Corporation. Stock owned by a pass-through entity qualifies as QSB stock to an individual owner of the pass-through if:
    • The amount is attributable to gain on the sale or exchange by the pass-through entity of stock that is QSB stock in the hands of the pass-thru entity (determined by treating the pass-through entity as an individual);
    • The pass-through entity held the stock for more than five years; and
    • The amount is includible in the taxpayer’s gross income by reason of the holding of an interest in the pass-through entity that was held by the taxpayer on the date on which the pass-through entity acquired the stock and at all times thereafter before the disposition of the stock by the pass-through entity.
  • Redemption Rules. Certain redemptions of a taxpayer’s stock by the corporation can cause the taxpayer’s stock to not qualify as QSB stock. The rules are more restrictive if there is a “significant redemption” of more than 5% of the QSB’s stock (by value) during a specified period.
  • Per-Issuer Limitation. Taxpayers can only exclude a specified amount of gain with respect to the QSB stock of a single issuer. The gain limitation is the greater of:
    • Ten times the taxpayer’s aggregate adjusted tax basis in the QSB stock of that issuer disposed by the taxpayer during the taxable year, or
    • Ten million dollars (reduced by the aggregate amount of the gain taken into account by the taxpayer under Section 1202 with respect to that issuer in any prior year).

For example, a person acquired 1,000 shares of QSB stock on July 15, 2015, at a total cost of $100,000. They then sell all their shares in 2023 for $20 million, and the per-issuer limitation is the greater of: (1) $1 million, i.e., 10 times X’s $100,000 total basis in the 100 shares, or (2) $10 million. Since they acquired the QSB stock after Sept. 28, 2010, the 100 percent exclusion applies. On their 2023 return, they can exclude $10 million of the $20 million gain realized on the disposition. Any gain in excess of the $10 million limitation would be taxed as capital gain.

Contact your Varnum attorney with any questions.