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Key takeaways
- QSBS must be acquired at original issuance from a domestic C-corporation that meets active-business and gross-asset tests.
- For QSBS issued AFTER July 4, 2025: tiered exclusion (50% at 3 years, 75% at 4 years, 100% at 5 years), $15M per-issuer cap, $75M issuer gross-assets ceiling.
- For QSBS issued ON OR BEFORE July 4, 2025: original rules apply (5-year hold, $10M cap, $50M issuer ceiling).
- The 10×-basis alternative cap remains available under both regimes.
- Many founders, early employees, and angel investors qualify but never claim the benefit due to documentation gaps at the time of issuance.
How Olomon thinks about this
Olomon stores the QSBS data points that matter — issuance date, certificate of incorporation, gross-assets attestation at issuance, and the holding-period clock per block — alongside the underlying equity holding. After OBBBA, tracking per-block issuance dates matters even more because pre-enactment and post-enactment QSBS are governed by different rules.
Quick facts
- Holding period — post-OBBBA20263yr → 50%, 4yr → 75%, 5yr → 100% exclusion[3]
- Holding period — pre-OBBBA QSBS20265 years for any exclusion
- Per-issuer cap — post-OBBBA2026Greater of $15M or 10× basis[3]
- Per-issuer cap — pre-OBBBA QSBSGreater of $10M or 10× basis
- Issuer entity typeDomestic C-corporation
- Issuer gross-assets ceiling — post-OBBBA2026$75M (indexed for inflation from 2027)[3]
- Issuer gross-assets ceiling — pre-OBBBA QSBS$50M before and after issuance
- Active-business asset test≥ 80% of assets in qualified active business
- Effective dateOBBBA changes apply to stock acquired after July 4, 2025
In-depth definition
Section 1202 is among the most powerful tax provisions for early-stage investors and founders, but it is also one of the most under-claimed — because eligibility hinges on facts that must be documented at the time of investment, not reconstructed years later. Companies must be C-corporations, must meet the gross-assets test before and immediately after issuance ($50M for stock issued on or before July 4, 2025; $75M for stock issued after that date under OBBBA[3]), and must use at least 80% of assets in a qualified active business.
OBBBA also created a tiered exclusion regime for stock issued after July 4, 2025: 50% exclusion at 3 years, 75% at 4 years, 100% at 5 years.[3] Partial-exclusion gains are taxed at a 28% federal rate plus the 3.8% Net Investment Income Tax. Stock issued on or before July 4, 2025 still requires a five-year hold for any exclusion. Investors who hold both pre- and post-enactment QSBS in the same issuer must track each block separately to apply the correct cap and holding rules.
Frequently asked questions
Not automatically. Stock acquired by exercising options can qualify if the company met the C-corp, gross-assets, and active-business tests at the time of exercise (the actual issuance), and the shares are then held for the applicable period (3, 4, or 5 years for stock issued after July 4, 2025; 5 years for stock issued on or before).
Yes — substantially. For stock issued after July 4, 2025, OBBBA introduced a tiered exclusion (50% at 3 years, 75% at 4 years, 100% at 5 years), raised the per-issuer cap to the greater of $15M or 10× basis, and raised the issuer gross-assets ceiling to $75M. Pre-enactment QSBS continues under the prior rules. The 10×-basis alternative cap is unchanged under both regimes.
Gain that does not qualify for exclusion under §1202 (because the holding period is shorter than 5 years for post-OBBBA QSBS, or because gain exceeds the per-issuer cap) is taxed at a special 28% federal rate, plus the 3.8% Net Investment Income Tax where it applies.
Sources
Primary, authoritative references.
- 1
Internal Revenue Service (IRS)
About Schedule D — Capital Gains and LossesCited for: QSBS reporting on Schedule D and Form 8949
- 2
- 3
U.S. Congress (Public Law 119-21)
One Big Beautiful Bill Act §70431Cited for: OBBBA §70431 amendment to IRC §1202: tiered 50%/75%/100% exclusion for stock issued after July 4, 2025; $15M cap; $75M gross-asset ceiling
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Cite this page
APAOlomon Editorial Team. (2026). 1202 gain exclusion. Olomon Financial Glossary. https://olomon.com/financial-glossary/1202-gain-exclusion