The Section 1202 Small Business Stock Gain Exclusion

Section 1202 of the Internal Revenue Code allows non-corporate taxpayers to exclude from federal income tax 100% of the gain on the sale of certain qualified small business stock (QSBS), limited to the greater of $10 million or 10 times the adjusted basis of the investment. Unlike in prior years, this creates possible opportunities for non-corporate taxpayers who dispose of QSBS in a taxable transaction to potentially exclude the entire gain for federal tax purposes.  Assuming all applicable requirements are met, the 0 percent federal income tax rate would apply to gains from sales of QSBS acquired at any time after September 27, 2010.

Also, the treatment of no portion of the excluded gain is a preference item for AMT purposes. The capital gains that are exempt from tax under this section are also exempt from the 3.8% net investment income (NII) tax applied to most investment income.

Qualified small business stock (QSBS) is the stock—or shares—of a qualified small business (QSB), as defined by the Internal Revenue Code. A qualified small business is an active domestic C Corporation whose gross assets, valued at original cost, do not exceed $50 million on and immediately after its stock issuance.

Several requirements must be satisfied before those benefits can be realized, and even if those requirements are met, there are important limitations on the amount of gain that can qualify for the 0 percent rate.  These requirements and limitations are further discussed below.


The general requirements for qualifying for the 0 percent federal tax rate on gains from the sale of QSBS include the following:

  • The investor must not be a corporation.
  • The investor must have acquired the stock at its original issue and not on the secondary market.
  • The investor must have purchased the stock with cash or property, or accepted it as payment for a service.
  • The investor must have held the stock for at least five years.
  • At least 80% of the issuing corporation’s assets must be used in the operations of one or more of its qualified trades or businesses.
  • The aggregate gross assets of the corporation that issued the stock cannot have exceeded $50 million at any time before (and including the time immediately after) the issuance of the stock to the taxpayer.
  • During substantially all of the taxpayer’s holding period of the stock, at least 80 percent of the issuing corporation’s assets must be used by the corporation in the active conduct of one or more qualified trades or businesses.

The Internal Revenue Code (IRC) Section 1202 defines a qualified small business (QSB), and only certain types of companies are eligible. For example, companies in the hospitality industry, personal services, the financial sector, farming, and mining are not eligible. Those that are eligible include companies in the technology, retail, wholesale, and manufacturing sectors.

Example of Qualified Small Business Stock (QSBS) Taxation

If someone invested $1.5 million in a tech startup on October 1, 2010, and held that investment for five years, they could sell their QSBS for up to $16.5 million (10 x their original investment of $1.5 million) + $1.5 million, without owing capital gains tax. Once they deduct their initial investment, they have a $15 million capital gain, none of which is taxable on their federal income tax.

Similarly, an investor who put $500,000 into the same tech startup would be able to sell their shares for up to $10.5 million ($10 million + $500,000), with no tax on their capital gain of $10 million. However, if the investor’s proceeds from the sale totaled $20 million, a 28% capital gains tax would be applied to the additional $10 million gain.

The information presented here should not be construed as legal, tax, accounting, or valuation advice. No one should act on such information without appropriate professional advice and after a thorough examination of the particular situation.