10/02/2026
Most people scrolled past this week’s Treasury and IRS warning. It sounded like a "wealthy-only" story. It is not that.
Section 351 of the tax code has long let an investor contribute a portfolio of securities to a new corporation, including a new ETF, and receive shares back without immediately recognizing a capital gain. There are real limits: no single holding over 25 percent, and the top five holdings no more than 50 percent. Used properly, that rule is how a lot of new ETFs get their first assets. An investor, a family office, or a seed partner puts real money in on day one so the fund can open, get a track record, and eventually be available to everyone else.
What the IRS is now calling out is different. In the transactions they flagged, appreciated stock goes in, the portfolio is reshuffled shortly after, and the investor walks out diversified without ever paying tax on the built-in gain. Bloomberg has estimated about $22 billion of ETFs were built for that purpose, deferring as much as $6.5 billion in gains. If the product is only a conduit for a tax dodge, shutting that down is fair.
The problem is the way the warning is written. “Shortly after” is undefined. What counts as a “materially different” portfolio is a facts-and-circumstances call. Comments are due October 28, and practitioners are already saying the gray area will last for months. Launching an ETF already costs a few hundred thousand dollars before the first share is sold. Add legal uncertainty about the seed, and smaller and newer sponsors will simply not file. The big, already-huge funds do not need this door. The next useful fund often does.
That is why a rule aimed at people with $25 million or $100 million of appreciated stock still reaches the rest of us. The ETF market most Americans actually use — low costs, intraday liquidity, and the in-kind create-and-redeem process that keeps taxable distributions down — got there because new products could be seeded and then compete. Fewer new ETFs means less competition, higher fees for longer, and fewer specialized options in areas like bonds, dividends, and tax-aware equity. The core plumbing of the multi-trillion-dollar ETF industry is not going away. The on-ramp for the next generation of funds just got narrower.
At Tea Olive Capital we spend time on items like this so our clients do not have to. High-net-worth planning is not about chasing the latest tax headline. It is about knowing which strategies are durable, which ones just got riskier, and how a change in Washington shows up in the funds regular portfolios actually own. If a pitch sounds too clever, it usually is. The durable edge is still diversification, cost, and taxes you can explain.
Educational only. Not tax, legal, or investment advice. Securities offered through LPL Financial, member FINRA/SIPC.
The IRS and Treasury issued a warning this week on an ETF strategy wealthy investors have been using to shield capital gains income from taxes.