IRC §1372(b) defines a 2% shareholder as "any person who owns (or is considered as owning within the meaning of section 318) . . . more than 2 percent of the outstanding stock . . .)
IRC §318(a)(2)(B)(i) states "Stock owned, directly or indirectly, by or for a trust (other than an employees' trust described in section 401(a) which is exempt from tax under section 501(a) ) shall be considered as owned by its beneficiaries in proportion to the actuarial interest of such beneficiaries in such trust" (emphasis added). ESOP assets are held by trusts described in §401(a) which are exempt under 501(a), therefore beneficial ownership through an ESOP's trust would not make anyone a 2% shareholder for purposes of §1372.
IRC §1372(b) defines a 2% shareholder as "any person who owns (or is considered as owning within the meaning of section 318) . . . more than 2 percent of the outstanding stock . . .) IRC §318(a)(2)(B)(i) states "Stock owned, directly or indirectly, by or for a trust (other than an employees' trust described in section 401(a) which is exempt from tax under section 501(a) ) shall be considered as owned by its beneficiaries in proportion to the actuarial interest of such beneficiaries in such trust" (emphasis added). ESOP assets are held by trusts described in §401(a) which are exempt under 501(a), therefore beneficial ownership through an ESOP's trust would not make anyone a 2% shareholder for purposes of §1372.