Gifts of Business Interests: FAQs
Are there any restrictions on transferring my shares?
The governing documents (for example, Articles of Incorporation and Bylaws) of your closely-held company may include provisions dictating to whom you may transfer your shares. Often, but not always, charitable entities are permissible shareholders, but you want to be sure. In addition, other shareholders may be given a "right of first refusal," which means that you won't be able to give your shares to the American Cancer Society until all other shareholders have declined to purchase your shares. Be sure to review the governing documents for any requirements you need to meet before initiating the transfer.
Does the American Cancer Society need to know ahead of time that I plan to transfer shares?
Because we are a charitable entity, we must perform "due diligence" to ensure that accepting the shares won't jeopardize our charitable status or expose the American Cancer Society to unexpected liability. We'll need to review the company's governing documents and talk with you and the company about any liabilities that may accrue, so please discuss your plans with us well in advance of the transfer.
Another shareholder has agreed to buy my shares, but if I give them to you instead, and then you sell them to the shareholder, I'll avoid capital gains on the sale. Will that work?
Be careful. If you're already far along the process of negotiating a sale of your shares, the IRS may view your contribution of the shares to us as a "step transaction" by treating your contribution as if you had already sold the shares and contributed cash to the American Cancer Society. If the IRS recharacterizes the transaction that way, you'll have to pay capital gains tax on the transfer. You'll still get a tax deduction for your contribution of cash, though, and the American Cancer Society will benefit greatly from your gift. Note also that the American Cancer Society cannot accept shares that it's required to hold or sell.
