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IRC Section 1202: Qualified Small Business Stock Checklist

Section 1202, or Small Business Stock Gains Exclusion, is a part of the Internal Revenue Code (IRC) to let capital gains from small business stock be excluded from federal tax. Section 1202 of IRS is only valid for small business stocks after 27 Sept 2010, held for five years.

Some Key Pointers To Consider

Below are some of the key points given that you should consider:

  • Under Section 1202, businesses can exclude capital gains from small business stocks from federal tax.
  • It also offers a benefit for non-corporate taxpayers for small business funds.
  • The gains under Section 1202 are limited to a $10 million max or ten times adjusted on a stock basis.

What Is Qualified Small Business Stock 1202?

Let’s understand what is qualified small business stock 1202 and why it is needed? Before 18 Feb 2009, the Section 1202 provision was barred around 50% of gross income capital gains.  To fuel the small business sector, the American Reinvestment and Recovery Act improved the barring rate from 50% to 75% for the stocks between 18 Feb 2009 and 27 Sept 2010. Small business stocks eligible for 50% or 75% exclusion and excluded gain portion are taxed as preference items that incur additional 7% taxes. This tax is known as Alternative Minimum Tax (AMT). Officials usually impose AMT on people or investors with tax exemptions, letting them lessen the paid income tax.

The recent section 1202 change in IRC section 1202 stock qualifications offered 100% capital gains exclusion when the small business stock buying was after 27 Sept 2010. Also, handling no excluded gain part is an AMT purpose treatment item. The capital gains exempt from tax under the section are exempt from the 3.8% investment income (NiI) tax applied to most income investments.

The gain that investors exclude under Section 1202 is under a maximum of $10 million or up to ten times the adjusted stock basis. The taxable gain portion of selling small business stock is valued at a 28% tax rate.

The IRC section 1202 checklist aims to help non-corporate taxpayers find preferred or common stock funds that qualify as Internal Revenue Code, Section 1202, Qualified Small Business Stock (QSBS). It helps find when a firm fits Qualified Business Stock only under IRC section 1202 regulations and federal tax laws. Certain states’ federal tax conformity is separately there for tax needs.

If you meet all needs of the IRC section 1202 checklist, 50%, 75%, or 100% gain on the sale of QSBS is barred from income tax by taxpayers based on the buying date. Although it is noted that for 50% and 75% barred gains, there is an Alternative Minimum Tax preference added back. Moreover, the taxpayers can defer current taxes of the gain share on QSBS sales, complying with Code Sec. 1045.

Checklist Questions 1 to 8

(Federal Requirements)

When you answer no to the below questions, the stock won’t meet federal requirements for Qualified Small Business Stock, and you won’t need to continue the IRC section 1202 checklist.

  • Is the issuing corporation a domestic C corporation?
  • Did the stock issue after 10 Aug 1993 for money, other property (not including the stock), or payment to have services (excluding underwriter services)?
  • If at the time of the firm’s existence after 10th, Aug 1993, and till the time instantly following stock issuance, was adjusted (tax aggregate gross assets of the issuing company (or a predecessor) equal to or below $50 million?

Taxpayer Note: You should meet the firm needs below in 4 to 6 questions of IRC section 1202 checklist of all taxpayers’ holdings Code Sec. 1202 stock.

  • Since the date of the allotted stock has around 80% of the firm’s asset value in the active conduct of the fit firms or trades (Notes C, D, and E).
  • Since the stock issue date had 10% or less capital of total firm assets contained real estate not used in the active conduct of the eligible business or trade
  • Since the issuing date of the stock, has the firm held stock securities or not? Other than the subsidiaries, with values equal to or lesser than 10% of the net assets (assets in liabilities excess).
  • Has the corporation not made redemptions in two years starting a year after issuance (i) higher than the minimal amount and in an amount up to 5% of the stock’s fair market value as of the starting of such period?
  • Has the company not made redemptions up to the minimum stock amount from the investors two years before allotting and two years after the allotment?

Read Also: A Few Considerations While Filing The ERTC Tax Credit 2022

Checklist Questions 9 to 10

(Tax-Free Transaction)

The IRC section 1202 checklist questions listed below don’t affect whether or not you’ve got QSBS stock; these questions are meant to decide the period over which the appreciation is subjected to the treatment of QSBS where the stock is there in tax-free contracts.

  • If the firm qualifies for the tax-free transaction under Sec 351 or 368, where does the stock identified at the top of the IRC section 1202 checklist change for another company stock?

If you’ve answered no of the above put-up IRC section 1202 checklist questions, the forthcoming question won’t affect you. 

If you’ve answered yes to the above IRC section 1202 checklist question, you should answer the checklist about new company stock, considering the identified company stock as a tax-free transaction.

Does your new firm meet the meaning of Qualified Small Business Stock as the Checklist outlined?

Note to Taxpayer: When you’ve answered IRC section 1202 checklist question 10 about the new company as yes, the new company stock can also be QSBS. After the tax-free transaction date, the new company stock appreciates and can qualify as QSBS for tax needs.

When the answer to question 10 about the new company is NO, the gain at the tax-free contract time qualifies as QSBS for tax needs.

The IRC section 1202 checklist for the qualified small business stock is to help investors know whether a certain investment is eligible for small business stock (QSBS) under Section 1202 of the IRS or not. Section 1202 offers gross income exclusion of the recognized gain on QSBS to certain QSBS taxpayer holders qualifying for QSBS, provided that the stock and issuing company meet the criteria.

This IRC section 1202 checklist gives you drafting notes or practical guidance, and it also asks questions about federal QSBS needs and California QSBS needs. The company should answer questions 1B and 1C when acquiring the issuing company.


The company should read the form with startup practice notes: Tax issues, related agreements, drafting considerations, supporting documents, related agreements, stock buying agreements, etc. To get in-depth IRC section 1202 checklist information and other consultation for tax-saving features, you can contact the Business Tax Benefits expert’s team. We have assisted our clients with years of wide-ranging work expertise.

At Business Tax Benefits, we create IRC section 1202 checklist and other custom tax saving plans for businesses to save on federal taxes and cut costs to make businesses more profitable. We offer cost-saving prospects for firms of all types and scales. Contact us on our inquiry form, email, or phone to get immediate tax benefits.

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