QSBS Exclusion Rules: Section 1202 Eligibility, Holding Period & Caps

The QSBS exclusion rules under IRC §1202 let you exclude federal tax on the greater of $10M or 10x your basis in gain from qualified small business stock, if you held it 5+ years. The 2025 OBBBA added a tiered 50/75/100% exclusion and raised the cap to $15M for stock acquired after July 4, 2025.

If you joined an early-stage startup and got equity — through an early-exercised option, an 83(b) election, or stock that settled at a qualifying C corporation — you might be sitting on one of the most powerful tax breaks in the entire code without knowing it. This guide walks through every QSBS exclusion rule that matters: the four issuer-level eligibility tests, the five-year holding clock, the greater-of-$10M-or-10x-basis cap, the sweeping 2025 changes from the One Big Beautiful Bill Act (OBBBA), and how to actually report the exclusion on your return.

What are the QSBS exclusion rules?

The QSBS exclusion rules let a non-corporate shareholder exclude from federal income tax the gain on qualified small business stock (QSBS) held more than five years, up to a per-issuer cap of the greater of $10 million (now $15 million for newer stock) or 10 times the stock's aggregate adjusted basis under 26 U.S. Code § 1202. Congress created Section 1202 in 1993 to channel investment into small domestic businesses — the trade-off is that the issuer has to be a genuine operating company, not a holding vehicle or a professional-services firm.

For most of its life, §1202 was a niche provision. That changed on July 4, 2025, when OBBBA expanded it substantially for stock acquired after that date — a tiered exclusion at three, four, and five years, a higher $15M cap, and a larger $75M asset ceiling (Perkins Coie). To benefit at all, though, your stock has to clear four issuer-level tests first.

Who qualifies — the four issuer-level requirements

Your stock qualifies as QSBS only if the company that issued it passes four tests, every one of which must be satisfied at the right moment. Think of these as the corporate-side gate; there are separate shareholder-side rules (covered further down) that you also have to clear.

1. Domestic C corporation

The issuer must be a domestic C corporation both when it issues the stock and during substantially all of the time you hold it, per §1202. Stock in an S corporation, an LLC taxed as a partnership, or a foreign company does not qualify. This is the single most common disqualifier for early employees: plenty of startups operate as LLCs in year one, and shares received before a C-corp conversion generally don't start a QSBS clock until the conversion. If your company converted from an LLC to a C corp, the QSBS holding period typically begins at conversion, not at your original grant.

2. The $50M / $75M aggregate gross-assets test

The corporation's aggregate gross assets must not exceed $50 million at any point before, and immediately after, your stock is issued — raised to $75 million for stock acquired after July 4, 2025, with the ceiling indexed for inflation starting in 2027 (The Tax Adviser). "Gross assets" means cash plus the adjusted basis of other property — so a company that has raised, say, $60 million and acquired stock after the OBBBA cutoff can still issue QSBS, where it couldn't have under the old $50 million line.

The test is applied at issuance, which is why getting in early matters so much. A founder or first-10 employee receives shares when the company's assets are tiny; an employee who joins after the company has crossed the $75 million threshold receives stock that can never be QSBS, no matter how long they hold it. The chart below traces a typical 409A valuation arc from seed to IPO so you can see where that eligibility window slams shut.

The takeaway: the QSBS gate closes long before the big valuation markups arrive. Stock issued at the $1 seed price sits comfortably under the asset ceiling; once the company is valued in the tens of millions, new issuances are racing the $75 million line.

3. Original-issuance requirement

You must have acquired the stock at original issuance — directly from the company in exchange for money, property, or services — rather than buying it from another shareholder on the secondary market, as §1202 requires. This is good news for employees and founders, who almost always receive shares straight from the company through an option exercise or a stock grant. It's a trap for secondary buyers: purchasing $500,000 of founder shares from an early employee on a secondary platform generally gives you stock that is not QSBS in your hands, even if it was QSBS for the person who sold it.

4. The 80% active-business test

During substantially all of your holding period, at least 80% by value of the corporation's assets must be used in the active conduct of a qualified trade or business under §1202. A company that parks most of its cash in a passive investment portfolio can fail this test even with a real product. And several whole industries are carved out by statute — if your company is in one of them, its stock can't be QSBS at all.

If your stock clears all four of these tests, you're QSBS-eligible at the corporate level. Next comes the clock.

The 5-year holding period — and how to count it

You must hold qualified small business stock for more than five years from its acquisition date to claim the full federal exclusion under §1202. The clock runs from the date you acquired the stock to the date you sell it — and where most people go wrong is in identifying that acquisition date.

When the clock starts for employees

For a founder or employee, the acquisition date is usually one of three events, and they are not interchangeable:

• Option exercise. When you exercise an ISO or NSO and receive actual shares, the QSBS clock starts on the exercise date — not the grant date. If you're exercising options before an IPO, the timing of that exercise is also the start of your five-year window. This is one more reason that timing your option exercise deserves real thought, and why the ISO-vs-NSO decision about which option type is your acquisition event matters here.
• 83(b) election on early-exercised or restricted stock. If you early-exercise unvested options or receive restricted stock and file an 83(b) election, you generally start the QSBS clock at the date of that acquisition rather than at vesting. The 83(b) effectively front-loads both your tax basis and your holding period.
• RSU settlement. RSUs that settle into qualifying C-corp stock start the clock at settlement (delivery of shares), which for most RSUs is the vest date. You don't own QSBS while the RSU is just a promise — only once the shares are delivered.

Count carefully. If your liquidity event is approaching and you're inside the five-year window, the OBBBA tiers (below) may give you a partial break — but the full exclusion only arrives on the fifth anniversary.

How much gain can you exclude? The greater-of-$10M-or-10x-basis cap

The QSBS gain exclusion cap is the greater of two amounts, per issuer: $10 million (or $15 million for stock acquired after July 4, 2025), or 10 times your aggregate adjusted basis in the stock. You take whichever number is larger — they are not added together. The statute spells out the 10x branch directly:

"10 times the aggregate adjusted bases of qualified small business stock issued by such corporation and disposed of by the taxpayer during the taxable year."

— 26 U.S. Code § 1202(b)(1)(B)

For most founders and early employees, basis is tiny, so the dollar cap controls. But the 10x branch can blow past the dollar cap for an investor who put real money in. Here's a worked example of each branch:

• Low-basis founder. You exercised options for $10,000 of basis and sell for a $12 million gain. Your 10x-basis figure is just $100,000, so the $10 million dollar cap wins. You exclude $10 million and pay tax on the remaining $2 million.
• High-basis investor. You invested $3 million at original issuance and the company exits at a $40 million gain on your shares. Your 10x-basis figure is $30 million — far above the $10 million dollar cap — so you exclude $30 million and pay tax on $10 million. The 10x branch tripled your exclusion.

The cap is per issuer, which is the seed of the stacking strategies later in this guide. To pressure-test your own basis against both branches of the cap, model the numbers before you sell.

If you want to see the cap interact with the rest of your equity picture — salary, other vests, state tax — the equity compensation calculator and the stock options tax calculator layer it into a full-year estimate.

The 2025 OBBBA changes: tiered 50/75/100% exclusion

For QSBS acquired after July 4, 2025, OBBBA replaced the old all-or-nothing five-year rule with a tiered exclusion: you exclude 50% of eligible gain at a 3-year hold, 75% at 4 years, and 100% at 5 years.

OBBBA also lifted the headline numbers for post-cutoff stock:

• The per-issuer dollar cap rose from $10 million to $15 million, inflation-indexed beginning in 2027.
• The aggregate gross-assets ceiling rose from $50 million to $75 million.
• The treatment of the non-excluded portion and its AMT interaction was clarified (covered in the next section).

The tiers turn the five-year clock from a cliff into a staircase — but partial exclusion still leaves real tax on the table. The scenario cards below compare after-tax outcomes for the same $4 million gain sold at the 50%, 75%, and 100% tiers.

Read it as a year-by-year decision: selling a year early under the new rules isn't catastrophic the way it was under the old cliff, but each year you wait toward the five-year mark meaningfully lifts the excluded share of your gain. The difference between the 75% tier and the 100% tier on a large gain is often worth waiting the extra months for.

What about the non-excluded gain, AMT, and the 28% rate?

Any QSBS gain above your cap, or any portion not excluded because you sold before reaching 100%, is taxed — but at a specific rate. Section 1202 gain that isn't excluded is taxed as a 28% rate gain, not at the lower 15%/20% long-term capital-gains rates. So in the founder example above, the $2 million that exceeded the $10 million cap is taxed at 28% — roughly $560,000 of federal tax — rather than at 20%.

The AMT story improved over the years and was clarified again by OBBBA. For most QSBS acquired after September 27, 2010, the excluded gain is not an AMT preference item, so the exclusion isn't clawed back through the alternative minimum tax. Older stock (acquired between 1993 and 2010, at the 50% or 75% exclusion tiers) could carry an AMT preference on part of the excluded amount. If AMT is in play for you for other reasons — an ISO exercise in the same year, for instance — it's worth understanding how AMT is calculated and how Form 6251 reports it, because the interaction between a QSBS sale and an ISO exercise in the same tax year can be complex.

Advanced strategies: stacking and §1045 rollover

Because the exclusion cap is per issuer and per taxpayer, sophisticated holders use two well-established techniques to push more gain into the excluded column. Neither is a loophole — both are explicitly contemplated by the statute — but both demand careful, advance planning with a tax professional.

Stacking the exclusion

The per-taxpayer, per-issuer cap means that if you can spread your QSBS across multiple taxpayers, each one gets their own $10M/$15M exclusion. The classic move is gifting QSBS to family members or to non-grantor trusts before a sale, since a non-grantor trust is a separate taxpayer with its own cap. A founder with $30 million of expected gain might, well in advance of a sale, gift shares into several non-grantor trusts so that each trust's gain falls within its own exclusion — multiplying a single $10 million cap into several. Done wrong, this triggers gift-tax and step-transaction problems, so it is firmly professional-advice territory.

§1045 rollover — reinvest within 60 days

If you have to sell before hitting five years, Section 1045 lets you defer the gain instead of recognizing it, by rolling the proceeds into new QSBS within 60 days of the sale — provided the original stock was held more than six months (26 U.S. Code § 1045). The holding period of the old stock generally tacks onto the new stock, so a §1045 rollover keeps your five-year clock alive across a reinvestment. This is the QSBS equivalent of a like-kind exchange, and it's how some investors handle an early acquisition of their portfolio company without losing the QSBS runway.

Both strategies reward thinking several years ahead, which is exactly where optimizing your equity taxes across multiple years earns its keep.

Do the QSBS exclusion rules apply in your state?

The QSBS exclusion rules are federal. Whether your state also excludes the gain depends entirely on whether it conforms to §1202 — and a handful of high-tax states do not. California is the headline exception: it taxes the full QSBS gain at state rates regardless of the federal exclusion, so a Californian who excludes $10 million federally can still owe California tax on the entire amount.

If you live in or sold while resident in one of these states, plan accordingly:

• See the California QSBS treatment for why California taxes the full gain up to its top 13.3% rate even when the federal exclusion is 100%.
• See New York's QSBS treatment and the broader New York state tax rules for how the Empire State handles it.
• For everything else, the state-by-state tax overview shows which states conform and which don't.

Most states that have a personal income tax do conform to the federal exclusion by reference, so for a majority of filers the federal break carries straight through. But never assume — confirm your specific state's conformity before you count on it.

How to report the QSBS exclusion on your return

You report a QSBS sale on Form 8949, then enter the excluded amount as a negative number in column (g) using code Q in column (f), per the IRS Instructions for Form 8949. The exclusion shows up as an adjustment that reduces the taxable gain you'd otherwise report. From there, the net figure flows through to Schedule D, which is where your overall capital gain or loss is summarized (IRS About Schedule D).

A clean reporting checklist:

1. Report the full sale (proceeds and basis) on Form 8949 as you would any stock sale.
2. In column (f), enter code Q to flag the §1202 exclusion.
3. In column (g), enter the excluded gain as a negative number so it offsets the reported gain.
4. Carry the totals to Schedule D.
5. Tax software often handles the mechanics, but verify the code Q entry and the negative adjustment yourself — this is where errors creep in.

Because a QSBS sale interacts with the rest of your year, it pays to understand how equity compensation hits your tax return and, on a large taxable portion, whether you owe quarterly estimated taxes to avoid an underpayment penalty. The non-excluded slice is also where the 28% rate and the 2026 federal brackets come into play.

Frequently asked questions

What is the QSBS 5-year holding period?

You must hold qualified small business stock for at least five years from the acquisition date to claim the full 100% federal exclusion under §1202. The clock starts on the date you actually acquired the shares — your option exercise date, your 83(b) acquisition date, or your RSU settlement date — and runs to the date you sell. For stock acquired after July 4, 2025, OBBBA added partial exclusions at the 3- and 4-year marks.

How much QSBS gain can I exclude?

The greater of $10 million ($15 million for stock acquired after July 4, 2025) or 10 times your aggregate adjusted basis in the stock, measured per issuer under §1202. You don't add the two figures — you take whichever is larger. Low-basis founders are usually capped by the dollar limit; investors with substantial basis often benefit from the 10x branch.

What companies qualify as a qualified small business?

A domestic C corporation with ≤ $50 million ($75 million post-OBBBA) in aggregate gross assets at issuance that uses at least 80% of its assets in an active, non-excluded trade or business, per §1202. Health, law, accounting, consulting, financial-services, brokerage, farming, hospitality, and mineral-extraction businesses are statutorily excluded.

How did OBBBA change QSBS in 2025?

For stock acquired after July 4, 2025, OBBBA added a tiered exclusion — 50% at 3 years, 75% at 4 years, 100% at 5 years — raised the per-issuer cap to $15 million (inflation-indexed from 2027), and lifted the gross-assets ceiling to $75 million. Stock acquired on or before that date stays under the legacy 100%-after-5-years rules.

Is QSBS gain subject to AMT?

For most QSBS acquired after September 27, 2010, the excluded gain is not an AMT preference item, so the exclusion isn't clawed back through the alternative minimum tax. Older stock at the 50% or 75% tiers could carry a partial AMT preference. OBBBA further clarified the AMT treatment for newer stock.

Can I stack the QSBS exclusion?

Yes — because the cap is per taxpayer, per issuer, gifting QSBS to family members or non-grantor trusts before a sale can multiply the exclusion, since each separate taxpayer gets their own $10M/$15M cap. This requires careful, advance gift-tax and step-transaction planning with a tax professional; done casually, it can backfire.

The bottom line

The QSBS exclusion rules can be the difference between paying tax on a startup exit and paying almost none of it — but only if your stock clears all four issuer tests, you hold past the five-year mark (or land favorably on the OBBBA tiers), and you watch the per-issuer cap and your state's conformity. The most expensive mistakes are the avoidable ones: miscounting the acquisition date and selling a few months too early.

If you're approaching a liquidity event, model your basis, your cap, and your full-year tax picture before you sell — the numbers move fast, and a few months can be worth seven figures.