Morkel Financial & Tax Services
The Journal / Equity Compensation

Section 1202 After OBBBA: A Better Deal for Founders and Early Employees

By Ewan Morkel, EA7 min read

The One Big Beautiful Bill Act rewrote three of Section 1202's most important numbers: the holding period, the per-issuer cap, and the gross-assets test. Here's what the new QSBS math means for founders, early employees, and anyone weighing a C corporation conversion.

The question every founder eventually asks is which bucket the proceeds will land in: ordinary income, capital gains, or, if the planning has been done right, none of the above. The answer, increasingly, runs through Section 1202 of the Internal Revenue Code, the Qualified Small Business Stock exclusion. The One Big Beautiful Bill Act, signed July 4, 2025, made §1202 meaningfully better, and the changes are starting to drive real planning decisions in 2026.

Section 1202 has been on the books since 1993, but it became powerful only after 2010, when Congress allowed a full 100% exclusion of gain on qualifying stock held more than five years. For founders and early employees of a domestic C corporation, the exclusion is one of the most lopsided benefits in the code. Up to $10 million of gain per issuer, or 10 times the holder's adjusted basis, whichever is greater, completely free of federal tax. No 20% capital gains rate. No 3.8% net investment income tax. Zero, on potentially the largest single financial event of a person's life.

What changed

OBBBA rewrote three numbers.

The first change is the holding period. For stock acquired after July 4, 2025, §1202(a) now provides a tiered exclusion. Gain on stock held three years gets a 50% exclusion. Four years, 75%. Five years or more, 100%. The five-year rule didn't go away. It's still where the full benefit lives. But for stock issued under the new regime, an early exit no longer means losing the entire benefit. A founder pushed into a sale at year three by an acquirer can exclude half the gain, with the included portion taxed at the §1(h) 28% rate rather than as ordinary income.

The second change is the per-issuer cap. §1202(b)(1) used to limit the exclusion to the greater of $10 million or 10 times basis, per issuer, per taxpayer. OBBBA raised the dollar cap to $15 million for stock acquired after July 4, 2025, and indexed it for inflation beginning in 2027. The 10-times-basis alternative survives unchanged, and it remains the more powerful path for founders who paid real money for their shares.

The third change is the gross-assets test. §1202(d) requires that the issuing corporation's aggregate gross assets stay at or below a stated ceiling at and immediately after the time the stock is issued. OBBBA raised that ceiling from $50 million to $75 million for stock issued after July 4, 2025, also indexed beginning in 2027. The practical effect is that companies whose balance sheet pushes past the old line, but stays under $75 million, can keep issuing QSBS-eligible shares to later-stage investors and new hires who would have been locked out under prior law.

What didn't change

The qualifying rules are the same.

The issuer must be a domestic C corporation. The stock must be acquired at original issue, directly from the company, in exchange for cash, property, or services. At least 80% of the corporation's assets, by value, must be used in an active trade or business throughout substantially all of the holder's holding period. Service businesses in health, law, accounting, consulting, financial services, brokerage, performing arts, and athletics are excluded under §1202(e)(3). Hotels, motels, restaurants, and farming are out. Software, biotech, hardware, and most operating businesses are in.

Two planning angles

Rollovers and stacking.

The first is the §1045 rollover. If you sell QSBS before the holding period clears, you can defer the gain by reinvesting the proceeds into replacement QSBS within 60 days. The original holding period tacks. With OBBBA's tiered exclusion, this matters less than it used to, because a three-year holder isn't fully shut out anymore. It's still the right tool when the partial exclusion isn't enough.

The second is per-issuer cap stacking. The exclusion is per taxpayer, per issuer. Gifting QSBS to a non-grantor trust, or to a spouse who later files separately, can multiply the cap across more than one taxpayer. The IRS has noticed, and the structures need to be in place well before any liquidity event. Stacking that's papered the week before a sale doesn't survive scrutiny.

The transition rule

Old stock, old rules.

For founders sitting on stock acquired before July 5, 2025, none of this applies. Those shares stay under the prior $10 million, $50 million, five-year framework. For founders incorporating now, employees joining a C corp this year, or LLCs considering a C corp conversion before the next round, the new rules are the ones that will govern the eventual exit. The math has changed, and so has the timing of the conversations worth having.

Real estate tax planning

Modeling the after-tax outcome before you buy.

If either of these strategies is on your radar, the most valuable conversation is the one before the closing. We model the numbers, coordinate the cost seg, and file the elections, so the strategy survives the IRS, not just the spreadsheet.

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