26 U.S.C. § 1202
In the case of a taxpayer other than a corporation, gross income shall not include 50 percent of any gain from the sale or exchange of qualified small business stock held for more than 5 years.
In the case of qualified small business stock acquired after the date of the enactment of this paragraph in a corporation which is a qualified business entity (as defined in section 1397C(b)) during substantially all of the taxpayer's holding period for such stock, paragraph (1) shall be applied by substituting "60 percent" for "50 percent".
Rules similar to the rules of paragraphs (5) and (7) of section 1400B(b) (as in effect before its repeal) shall apply for purposes of this paragraph.
Subparagraph (A) shall not apply to gain attributable to periods after December 31, 2018.
The District of Columbia Enterprise Zone shall not be treated as an empowerment zone for purposes of this paragraph.
In the case of qualified small business stock acquired after the date of the enactment of this paragraph and on or before the date of the enactment of the Creating Small Business Jobs Act of 2010-
In the case of any stock which would be described in the preceding sentence (but for this sentence), the acquisition date for purposes of this subsection shall be the first day on which such stock was held by the taxpayer determined after the application of section 1223.
In the case of qualified small business stock acquired after the date of the enactment of the Creating Small Business Jobs Act of 2010-
In the case of any stock which would be described in the preceding sentence (but for this sentence), the acquisition date for purposes of this subsection shall be the first day on which such stock was held by the taxpayer determined after the application of section 1223.
If the taxpayer has eligible gain for the taxable year from 1 or more dispositions of stock issued by any corporation, the aggregate amount of such gain from dispositions of stock issued by such corporation which may be taken into account under subsection (a) for the taxable year shall not exceed the greater of-
For purposes of subparagraph (B), the adjusted basis of any stock shall be determined without regard to any addition to basis after the date on which such stock was originally issued.
For purposes of this subsection, the term "eligible gain" means any gain from the sale or exchange of qualified small business stock held for more than 5 years.
In the case of a separate return by a married individual, paragraph (1)(A) shall be applied by substituting "$5,000,000" for "$10,000,000".
In the case of any joint return, the amount of gain taken into account under subsection (a) shall be allocated equally between the spouses for purposes of applying this subsection to subsequent taxable years.
For purposes of this subsection, marital status shall be determined under section 7703.
For purposes of this section-
Except as otherwise provided in this section, the term "qualified small business stock" means any stock in a C corporation which is originally issued after the date of the enactment of the Revenue Reconciliation Act of 1993, if-
Stock in a corporation shall not be treated as qualified small business stock unless, during substantially all of the taxpayer's holding period for such stock, such corporation meets the active business requirements of subsection (e) and such corporation is a C corporation.
Notwithstanding any provision of subsection (e), a corporation shall be treated as meeting the active business requirements of such subsection for any period during which such corporation qualifies as a specialized small business investment company.
For purposes of clause (i), the term "specialized small business investment company" means any eligible corporation (as defined in subsection (e)(4)) which is licensed to operate under section 301(d) of the Small Business Investment Act of 1958 (as in effect on May 13, 1993).
Stock acquired by the taxpayer shall not be treated as qualified small business stock if, at any time during the 4-year period beginning on the date 2 years before the issuance of such stock, the corporation issuing such stock purchased (directly or indirectly) any of its stock from the taxpayer or from a person related (within the meaning of section 267(b) or 707(b)) to the taxpayer.
Stock issued by a corporation shall not be treated as qualified business stock if, during the 2-year period beginning on the date 1 year before the issuance of such stock, such corporation made 1 or more purchases of its stock with an aggregate value (as of the time of the respective purchases) exceeding 5 percent of the aggregate value of all of its stock as of the beginning of such 2-year period.
If any transaction is treated under section 304(a) as a distribution in redemption of the stock of any corporation, for purposes of subparagraphs (A) and (B), such corporation shall be treated as purchasing an amount of its stock equal to the amount treated as such a distribution under section 304(a).
For purposes of this section-
The term "qualified small business" means any domestic corporation which is a C corporation if-
For purposes of paragraph (1), the term "aggregate gross assets" means the amount of cash and the aggregate adjusted bases of other property held by the corporation.
For purposes of subparagraph (A), the adjusted basis of any property contributed to the corporation (or other property with a basis determined in whole or in part by reference to the adjusted basis of property so contributed) shall be determined as if the basis of the property contributed to the corporation (immediately after such contribution) were equal to its fair market value as of the time of such contribution.
All corporations which are members of the same parent-subsidiary controlled group shall be treated as 1 corporation for purposes of this subsection.
For purposes of subparagraph (A), the term "parent-subsidiary controlled group" means any controlled group of corporations as defined in section 1563(a)(1), except that-
For purposes of subsection (c)(2), the requirements of this subsection are met by a corporation for any period if during such period-
For purposes of paragraph (1), if, in connection with any future qualified trade or business, a corporation is engaged in-
assets used in such activities shall be treated as used in the active conduct of a qualified trade or business. Any determination under this paragraph shall be made without regard to whether a corporation has any gross income from such activities at the time of the determination.
For purposes of this subsection, the term "qualified trade or business" means any trade or business other than-
For purposes of this subsection, the term "eligible corporation" means any domestic corporation; except that such term shall not include-
For purposes of this subsection, stock and debt in any subsidiary corporation shall be disregarded and the parent corporation shall be deemed to own its ratable share of the subsidiary's assets, and to conduct its ratable share of the subsidiary's activities.
A corporation shall be treated as failing to meet the requirements of paragraph (1) for any period during which more than 10 percent of the value of its assets (in excess of liabilities) consists of stock or securities in other corporations which are not subsidiaries of such corporation (other than assets described in paragraph (6)).
For purposes of this paragraph, a corporation shall be considered a subsidiary if the parent owns more than 50 percent of the combined voting power of all classes of stock entitled to vote, or more than 50 percent in value of all outstanding stock, of such corporation.
For purposes of paragraph (1)(A), any assets which-
shall be treated as used in the active conduct of a qualified trade or business. For periods after the corporation has been in existence for at least 2 years, in no event may more than 50 percent of the assets of the corporation qualify as used in the active conduct of a qualified trade or business by reason of this paragraph.
A corporation shall not be treated as meeting the requirements of paragraph (1) for any period during which more than 10 percent of the total value of its assets consists of real property which is not used in the active conduct of a qualified trade or business. For purposes of the preceding sentence, the ownership of, dealing in, or renting of real property shall not be treated as the active conduct of a qualified trade or business.
For purposes of paragraph (1), rights to computer software which produces active business computer software royalties (within the meaning of section 543(d)(1)) shall be treated as an asset used in the active conduct of a trade or business.
If any stock in a corporation is acquired solely through the conversion of other stock in such corporation which is qualified small business stock in the hands of the taxpayer-
If any amount included in gross income by reason of holding an interest in a pass-thru entity meets the requirements of paragraph (2)-
An amount meets the requirements of this paragraph if-
Paragraph (1) shall not apply to any amount to the extent such amount exceeds the amount to which paragraph (1) would have applied if such amount were determined by reference to the interest the taxpayer held in the pass-thru entity on the date the qualified small business stock was acquired.
For purposes of this subsection, the term "pass-thru entity" means-
For purposes of this section-
In the case of a transfer described in paragraph (2), the transferee shall be treated as-
A transfer is described in this subsection if such transfer is-
Rules similar to the rules of section 1244(d)(2) shall apply for purposes of this section.
In the case of a transaction described in section 351 or a reorganization described in section 368, if qualified small business stock is exchanged for other stock which would not qualify as qualified small business stock but for this subparagraph, such other stock shall be treated as qualified small business stock acquired on the date on which the exchanged stock was acquired.
This section shall apply to gain from the sale or exchange of stock treated as qualified small business stock by reason of subparagraph (A) only to the extent of the gain which would have been recognized at the time of the transfer described in subparagraph (A) if section 351 or 368 had not applied at such time. The preceding sentence shall not apply if the stock which is treated as qualified small business stock by reason of subparagraph (A) is issued by a corporation which (as of the time of the transfer described in subparagraph (A)) is a qualified small business.
For purposes of this paragraph, stock treated as qualified small business stock under subparagraph (A) shall be so treated for subsequent transactions or reorganizations, except that the limitation of subparagraph (B) shall be applied as of the time of the first transfer to which such limitation applied (determined after the application of the second sentence of subparagraph (B)).
In the case of a transaction described in section 351, this paragraph shall apply only if, immediately after the transaction, the corporation issuing the stock owns directly or indirectly stock representing control (within the meaning of section 368(c)) of the corporation whose stock was exchanged.
For purposes of this section-
In the case where the taxpayer transfers property (other than money or stock) to a corporation in exchange for stock in such corporation-
If the adjusted basis of any qualified small business stock is adjusted by reason of any contribution to capital after the date on which such stock was originally issued, in determining the amount of the adjustment by reason of such contribution, the basis of the contributed property shall in no event be treated as less than its fair market value on the date of the contribution.
If the taxpayer has an offsetting short position with respect to any qualified small business stock, subsection (a) shall not apply to any gain from the sale or exchange of such stock unless-
For purposes of paragraph (1), the taxpayer shall be treated as having an offsetting short position with respect to any qualified small business stock if-
For purposes of the preceding sentence, any reference to the taxpayer shall be treated as including a reference to any person who is related (within the meaning of section 267(b) or 707(b)) to the taxpayer.
The Secretary shall prescribe such regulations as may be appropriate to carry out the purposes of this section, including regulations to prevent the avoidance of the purposes of this section through split-ups, shell corporations, partnerships, or otherwise.
26 U.S.C. § 1202
EDITORIAL NOTES
REFERENCES IN TEXTThe date of the enactment of this paragraph, referred to in subsec. (a)(2)(A), is the date of enactment of Pub. L. 106-554, which was approved Dec. 21, 2000. Section 1400B(b), referred to in subsec. (a)(2)(B), was repealed by Pub. L. 115-141, div. U, title IV, §401(d)(4)(A), Mar. 23, 2018, 132 Stat. 1209.The date of the enactment of this paragraph, referred to in subsec. (a)(3), is the date of enactment of Pub. L. 111-5, which was approved Feb. 17, 2009.The date of the enactment of the Creating Small Business Jobs Act of 2010, referred to in subsec. (a)(3), (4), is the date of enactment of Pub. L. 111-240, which was approved Sept. 27, 2010.The date of the enactment of the Revenue Reconciliation Act of 1993, referred to in subsecs. (c)(1) and (d)(1)(A), is the date of enactment of Pub. L. 103-66, which was approved Aug. 10, 1993. Section 301(d) of the Small Business Investment Act of 1958, referred to in subsec. (c)(2)(B)(ii), was classified to section 681(d) of Title 15, Commerce and Trade, prior to repeal by Pub. L. 104-208, div. D, title II, §208(b)(3)(A), Sept. 30, 1996, 110 Stat. 3009-742.
PRIOR PROVISIONSA prior section 1202, acts Aug. 16, 1954, ch. 736, 68A Stat. 320; Oct. 4, 1976, Pub. L. 94-455, title XIX, §1901(b)(33)(M), 90 Stat. 1802; Nov. 6, 1978, Pub. L. 95-600, title IV, §402(a), 92 Stat. 2867; Apr. 1, 1980, Pub. L. 96-222, title I, §104(a)(2)(A), 94 Stat. 214, authorized deduction for capital gains, prior to repeal by Pub. L. 99-514, title III, §301(a), (c), Oct. 22, 1986, 100 Stat. 2216, 2218, applicable to taxable years beginning after Dec. 31, 1986.
AMENDMENTS2018-Subsec. (a)(2)(B). Pub. L. 115-141, §401(d)(4)(B)(v), inserted "(as in effect before its repeal)" after "1400B(b)".Subsec. (e)(4)(B) to (D). Pub. L. 115-141, §401(d)(1)(D) (xv), redesignated subpars. (C) and (D) as (B) and (C), respectively, and struck out former subpar. (B) which read as follows: "a corporation with respect to which an election under section 936 is in effect or which has a direct or indirect subsidiary with respect to which such an election is in effect,".2015-Subsec. (a)(4). Pub. L. 114-113 substituted "and thereafter" for ", 2011, 2012, 2013, and 2014" in heading and struck out "and before January 1, 2015" after "of the Creating Small Business Jobs Act of 2010" in introductory provisions. 2014-Subsec. (a)(4). Pub. L. 113-295 substituted "2013, and 2014" for "and 2013" in heading and "January 1, 2015" for "January 1, 2014" in introductory provisions.2013-Subsec. (a)(2)(C). Pub. L. 112-240, §327(b), substituted "2018" for "2016" in heading and "December 31, 2018" for "December 31, 2016" in text. Subsec. (a)(3). Pub. L. 112-240, §324(b)(1), inserted concluding provisions.Subsec. (a)(4). Pub. L. 112-240, §324(b)(2), inserted concluding provisions. Pub. L. 112-240, §324(a), substituted ", 2011, 2012, and 2013" for "and 2011" in heading and "January 1, 2014" for "January 1, 2012" in introductory provisions.2010-Subsec. (a)(2)(C). Pub. L. 111-312, §753(b), substituted "2016" for "2014" in heading and "December 31, 2016" for "December 31, 2014" in text.Subsec. (a)(3). Pub. L. 111-240, §2011(b), inserted "certain periods in" before "2010" in heading and substituted "on or before the date of the enactment of the Creating Small Business Jobs Act of 2010" for "before January 1, 2011" in text.Subsec. (a)(4). Pub. L. 111-312, §760(a), inserted "and 2011" after "2010" in heading and substituted "January 1, 2012" for "January 1, 2011" in introductory provisions. Pub. L. 111-240, §2011(a), added par. (4). 2009-Subsec. (a)(3). Pub. L. 111-5 added par. (3).2004-Subsec. (e)(4)(C). Pub. L. 108-357 substituted "or REMIC" for "REMIC, or FASIT". 2000- Pub. L. 106-554, §1(a)(7) [title I, §117(b)(2)], substituted "Partial" for "50-percent" in section catchline.Subsec. (a). Pub. L. 106-554, §1(a)(7) [title I, §117(a)], amended heading and text of subsec. (a) generally. Prior to amendment, text read as follows: "In the case of a taxpayer other than a corporation, gross income shall not include 50 percent of any gain from the sale or exchange of qualified small business stock held for more than 5 years."1996-Subsec. (e)(4)(C). Pub. L. 104-188 substituted "REMIC, or FASIT" for "or REMIC".
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 2015 AMENDMENT Pub. L. 114-113, div. Q, title I, §126(b), Dec. 18, 2015, 129 Stat. 3054, provided that: "The amendments made by this section [amending this section] shall apply to stock acquired after December 31, 2014."
EFFECTIVE DATE OF 2014 AMENDMENT Pub. L. 113-295, div. A, title I, §136(b), Dec. 19, 2014, 128 Stat. 4019, provided that: "The amendments made by this section [amending this section] shall apply to stock acquired after December 31, 2013."
EFFECTIVE DATE OF 2013 AMENDMENT Pub. L. 112-240, §324(c), Jan. 2, 2013, 126 Stat. 2333, provided that:"(1) IN GENERAL.-The amendments made by subsection (a) [amending this section] shall apply to stock acquired after December 31, 2011."(2) SUBSECTION (B)(1).-The amendment made by subsection (b)(1) [amending this section] shall take effect as if included in section 1241(a) of division B of the American Recovery and Reinvestment Act of 2009 [Pub. L. 111-5]."(3) SUBSECTION (B)(2).-The amendment made by subsection (b)(2) [amending this section] shall take effect as if included in section 2011(a) of the Creating Small Business Jobs Act of 2010 [ title II of Pub. L. 111-240]." Pub. L. 112-240, §327(d), Jan. 2, 2013, 126 Stat. 2334, provided that: "The amendments made by this section [amending this section and section 1391 of this title] shall apply to periods after December 31, 2011."
EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111-312, §753(d), Dec. 17, 2010, 124 Stat. 3321, provided that: "The amendments made by this section [amending this section and section 1391 of this title] shall apply to periods after December 31, 2009." Pub. L. 111-312, §760(b), Dec. 17, 2010, 124 Stat. 3323, provided that: "The amendments made by this section [amending this section] shall apply to stock acquired after December 31, 2010." Pub. L. 111-240, §2011(c), Sept. 27, 2010, 124 Stat. 2554, provided that: "The amendments made by this section [amending this section] shall apply to stock acquired after the date of the enactment of this Act [Sept. 27, 2010]."
EFFECTIVE DATE OF 2009 AMENDMENT Pub. L. 111-5, div. B, title I, §1241(b), Feb. 17, 2009, 123 Stat. 342, provided that: "The amendment made by this section [amending this section] shall apply to stock acquired after the date of the enactment of this Act [Feb. 17, 2009]."
EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108-357 effective Jan. 1, 2005, with exception for any FASIT in existence on Oct. 22, 2004, to the extent that regular interests issued by the FASIT before such date continue to remain outstanding in accordance with the original terms of issuance, see section 835(c) of Pub. L. 108-357, set out as a note under section 56 of this title.
EFFECTIVE DATE OF 2000 AMENDMENT Amendment by Pub. L. 106-554 applicable to stock acquired after Dec. 21, 2000, see section 1(a)(7) [title I, §117(c)] of Pub. L. 106-554, set out as a note under section 1 of this title.
EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104-188 effective Sept. 1, 1997, see section 1621(d) of Pub. L. 104-188, set out as a note under section 26 of this title.
EFFECTIVE DATESection applicable to stock issued after Aug. 10, 1993, see section 13113(e) of Pub. L. 103-66, set out as an Effective Date of 1993 Amendment note under section 53 of this title.
SAVINGS PROVISIONAmendment by section 401(d)(4)(B)(v) of Pub. L. 115-141 not applicable to certain obligations issued, DC Zone assets acquired, or principal residences acquired before Jan. 1, 2012, see section 401(d)(4)(C) of Pub. L. 115-141, set out as a note under former section 1400 of this title.For provisions that nothing in amendment by Pub. L. 115-141 be construed to affect treatment of certain transactions occurring, property acquired, or items of income, loss, deduction, or credit taken into account prior to Mar. 23, 2018, for purposes of determining liability for tax for periods ending after Mar. 23, 2018, see section 401(e) of Pub. L. 115-141, set out as a note under section 23 of this title.
SPECIAL RULE FOR PASS-THROUGH ENTITIES Pub. L. 96-222, title I, §104(a)(2)(C), Apr. 1, 1980, 94 Stat. 215, as amended by Pub. L. 99-514, §2, Oct. 22, 1986, 100 Stat. 2095, provided that:"(i) IN GENERAL.-In applying sections [former] 1201(c)(2)(A)(ii) and 1202(c)(1)(B) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] with respect to any pass-through entity, the determination of the period for which gain or loss is properly taken into account shall be made at the entity level."(ii) PASS-THROUGH ENTITY DEFINED.-For purposes of clause (i), the term 'pass-through entity' means-"(I) a regulated investment company, "(II) a real estate investment trust,"(III) an electing small business corporation,"(IV) a partnership,"(V) an estate or trust, and "(VI) a common trust fund."
- Internal Revenue Code of 1986
- The term "Internal Revenue Code of 1986" means this title, and the term "Internal Revenue Code of 1939" means the Internal Revenue Code enacted February 10, 1939, as amended.
- Secretary
- The term "Secretary" means the Secretary of the Treasury or his delegate.
- corporation
- The term "corporation" includes associations, joint-stock companies, and insurance companies.
- joint return
- The term "joint return" means a single return made jointly under section 6013 by a husband and wife.
- person
- The term "person" shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.
- stock
- The term "stock" includes shares in an association, joint-stock company, or insurance company.
- taxable year
- The term "taxable year" means the calendar year, or the fiscal year ending during such calendar year, upon the basis of which the taxable income is computed under subtitle A. "Taxable year" means, in the case of a return made for a fractional part of a year under the provisions of subtitle A or under regulations prescribed by the Secretary, the period for which such return is made.
- taxpayer
- The term "taxpayer" means any person subject to any internal revenue tax.
- trade or business
- The term "trade or business" includes the performance of the functions of a public office.
- transaction
- The term "transaction" includes a series of transactions.