[Federal Register Volume 73, Number 137 (Wednesday, July 16, 2008)]
[Proposed Rules]
[Pages 40793-40799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16175]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 54
[REG-120476-07]
RIN 1545-BG71
Employer Comparable Contributions to Health Savings Accounts
Under Section 4980G, and Requirement of Return for Filing of the Excise
Tax Under Section 4980B, 4980D, 4980E or 4980G
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking and notice of public hearing.
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SUMMARY: This document contains proposed regulations providing guidance
on employer comparable contributions to Health Savings Accounts (HSAs)
under section 4980G of the Internal Revenue Code (Code) as amended by
sections 302, 305 and 306 of the Tax Relief and Health Care Act of 2006
(the Act). The proposed regulations also provide guidance relating to
the requirement of a return to accompany payment of the excise tax
under section 4980B, 4980D, 4980E, or 4980G of the Code and the time
for filing that return. These proposed regulations would affect
employers that contribute to employees' HSAs and Archer MSAs, employers
or employee organizations that sponsor a group health plan, and certain
third parties such as insurance companies or HMOs or third-party
administrators who are responsible for providing benefits under the
plan. This document also provides notice of a public hearing on these
proposed regulations.
DATES: Written or electronic comments must be received by October 14,
2008. Outlines of topics to be discussed at the public hearing
scheduled for October 30, 2008, at 10 a.m., must be received by October
13, 2008.
ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-120476-07), Internal
Revenue Service, room 5203, POB 7604, Ben Franklin Station, Washington,
DC 20044. Submissions may be hand-delivered Monday through Friday
between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-120476-07),
Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue,
NW., Washington, DC. Alternatively, taxpayers may submit comments
electronically via the Federal eRulemaking Portal at http://www.regulations.gov (IRS REG-120476-07). The public hearing will be
held in
[[Page 40794]]
room 2116, Internal Revenue Building, 1111 Constitution Avenue, NW.,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations as
they relate to section 4980E or 4980G, Mireille Khoury at (202) 622-
6080; concerning the proposed regulations as they relate to section
4980B or 4980D, Russ Weinheimer at (202) 622-6080; concerning
submissions of comments, the hearing, and/or to be placed on the
building access list to attend the hearing, Richard Hurst at (202) 622-
7180 (not toll-free numbers).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collections of information contained in this notice of proposed
rulemaking have been submitted to the Office of Management and Budget
for review in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)). Comments on the collections of information should be
sent to the Office of Management and Budget, Attn: Desk Officer for the
Department of the Treasury, Office of Information and Regulatory
Affairs, Washington, DC 20503, with copies to the Internal Revenue
Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:S
Washington, DC 20224. Comments on the collection of information should
be received by September 15, 2008.
Comments are specifically requested concerning:
Whether the proposed collections of information are necessary for
the proper performance of the functions of the IRS, including whether
the information will have practical utility;
The accuracy of the estimated burden associated with the proposed
collection of information;
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the proposed collection of
information may be minimized, including through the application of
automated collection techniques or other forms of information
technology; and
Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of services to provide information.
The collections of information in these proposed regulations are in
Q & A-11 in Sec. 4980B-2, Q & A-1 in Sec. 4980D-1, Q & A-1 in Sec.
4980E-1, and Q & A-5 in Sec. 4980G-1. These collections of information
result from the requirement to file a return for the payment of the
excise tax under section 4980B, 4980D, 4980E, or 4980G of the Code. The
likely respondents are employers that contribute to employees' HSAs and
Archer MSAs, employers or employee organizations that sponsor a group
health plan, and certain third parties such as insurance companies or
HMOs or third-party administrators who are responsible for providing
benefits under the plan.
Estimated total annual reporting burden: 2,500 hours.
The estimated annual burden per respondent is 30 minutes.
Estimated number of respondents: 5,000
The estimated frequency of responses per respondent is occasional,
less than once per year.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by the Office of Management and Budget.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and
tax return information are confidential, as required by 26 U.S.C. 6103.
Background
This document contains proposed Pension Excise Tax Regulations (26
CFR part 54) under section 4980G of the Code, as amended by Sections
302 and 305 of the Tax Relief and Health Care Act of 2006 (the Act),
under paragraph (d) of section 4980G of the Code, as enacted by section
306 of the Act, and under Section 4980E of the Code.
Section 1201 of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (Modernization Act), Public Law 108-173 (117
Stat. 2066, 2003), added section 223 to the Code to permit eligible
individuals to establish HSAs for taxable years beginning after
December 31, 2003. Section 4980G was also added to the Code by the
Modernization Act. Section 4980G(a) imposes an excise tax on the
failure of an employer to make comparable contributions to the HSAs of
its employees for a calendar year. Section 4980G(b) provides that rules
and requirements similar to section 4980E (the comparability rules for
Archer Medical Savings Accounts (Archer MSAs)) apply for purposes of
section 4980G. Section 4980E(b) imposes an excise tax equal to 35% of
the aggregate amount contributed by an employer to the Archer MSAs of
employees during the calendar year if an employer fails to make
comparable contributions to the Archer MSAs of its employees in a
calendar year. Therefore, if the employer fails to make comparable
contributions to the HSAs of its employees during a calendar year, an
excise tax equal to 35% of the aggregate amount contributed by the
employer to the HSAs of its employees during that calendar year is
imposed on the employer. See sections 4980G(a) and (b) and 4980E(b).
See also Notice 2004-2 (2004-2 IRB 269), Q & A-32. On July 31, 2006,
final regulations on comparability were published in the Federal
Register, 72 FR 30501 (2007-26 IRB 1495), TD 9277. In addition, on
April 17, 2008, final regulations were published in the Federal
Register, 73 FR 20794 (2008-20 IRB 975), providing guidance on employer
comparable contributions to HSAs in instances where an employee has not
established an HSA by December 31st and in instances where an employer
accelerates contributions for the calendar year for employees who have
incurred qualified medical expenses. See Sec. 601.601(d)(2).
This document also contains proposed Pension Excise Tax Regulations
(26 CFR part 54) under sections 4980B and 4980D of the Code. Under
section 4980B of the Code, group health plans maintained by an employer
with 20 or more employees must comply with continuation coverage
requirements. If a plan does not satisfy these requirements, an excise
tax is imposed of $100 per day per affected beneficiary. Final
regulations under section 4980B have been published, including
provisions concerning the excise tax, but no return filing requirement
has previously been imposed. See Sec. 54.4980B-2, Q & A-9 and Q & A-
10. Moreover, under chapter 100 of the Code, group health plans must
comply with various requirements, including limitations on preexisting
condition exclusions, certification of creditable coverage, special
enrollments, prohibitions against discrimination based on a health
factor, parity in the annual and lifetime dollar limits placed on
mental health benefits with those placed on medical/surgical benefits,
and minimum hospital lengths of stay in connection with childbirth. If
a plan does not satisfy any of these requirements under chapter 100,
section 4980D imposes an excise tax of $100 per day per affected
individual. Regulations interpreting the substantive requirements of
chapter 100 have previously been published, but no regulations have
been published concerning the excise tax under section 4980D.
[[Page 40795]]
Explanation of Provisions
Special Rule for Contributions to Nonhighly Compensated Employees
New paragraph (d) of section 4980G provides an exception to the
comparability rules that allows, but does not require, employers to
make larger contributions to the HSAs of nonhighly compensated
employees than the employer makes to the HSAs of highly compensated
employees. These proposed regulations interpret that requirement.
Specifically, the proposed regulations, in Sec. 54.4980G-4, provide
that employer contributions to the HSAs of nonhighly compensated
employees may be larger than employer contributions to the HSAs of
highly compensated employees with comparable coverage during a period.
Conversely, employer contributions to the HSAs of highly compensated
employees may not exceed employer contributions to the HSAs of
nonhighly compensated employees with comparable coverage during a
period.
The comparability rules still apply with respect to contributions
to the HSAs of all nonhighly compensated employees who are comparable
participating employees (eligible individuals who are in the same
category of employees with the same category of high deductible health
plan (HDHP) coverage) and an employer must make comparable
contributions to the HSA of each nonhighly compensated employee who is
a comparable participating employee during the calendar year.
Similarly, the comparability rules still apply with respect to
contributions to the HSAs of all highly compensated employees who are
comparable participating employees and an employer must make comparable
contributions to the HSA of each highly compensated employee who is a
comparable participating employee during the calendar year.
Collectively bargained employees are disregarded for purposes of
section 4980G, as are HSA contributions made through a cafeteria plan.
For purposes of Sec. 4980G(d), highly compensated employee is
defined under section 414(q) and includes any employee who was (1) a
five-percent owner at any time during the year or the preceding year;
or (2) for the preceding year, (A) had compensation from the employer
in excess of $105,000 (for 2008, indexed for inflation) and (B) if
elected by the employer, was in the group consisting of the top 20
percent of employees when ranked based on compensation. Nonhighly
compensated employees are employees that are not highly compensated
employees.
Maximum HSA Contribution Permitted for Employees Who Become Eligible
Individuals Mid-Year
Section 305 of the Act provides that individuals who are eligible
individuals during the last month of the taxable year (that is, who, in
the case of calendar year taxpayers, are eligible individuals on
December 1 of the year) may make or have made on their behalf the
maximum annual HSA contribution based on their HDHP coverage (self only
or family) on that date. A portion of the contribution is included in
income and subject to an additional 10 percent tax if the individual
fails to remain an eligible individual for 12 months after the last
month of the taxable year. See section 223(b)(8). Section 54.4980G-6 of
the proposed regulations provides that the employer can contribute up
to this maximum contribution on behalf of all employees who are
eligible individuals during the last month of the taxable year,
including employees who become eligible individuals after January 1st
of the calendar year and eligible individuals who are hired after
January 1st of the calendar year (both such classes of individuals are
hereinafter referred to as ``mid-year eligible individuals''). An
employer who makes the maximum calendar year HSA contribution, or who
contributes more than a pro-rata amount, on behalf of employees who are
mid-year eligible individuals will not fail to satisfy comparability
merely because some employees will have received more contributions on
a monthly basis than employees who worked the entire calendar year.
Employers are not required to make these greater than pro-rata
contributions and may instead pro-rate contributions based on the
number of months that an individual was both employed by the employer
and an eligible individual. However, if an employer contributes more
than the monthly pro-rata amount for the calendar year to the HSA of
any employee who is a mid-year eligible individual, the employer must
then contribute, on an equal and uniform basis, a greater than pro-rata
amount to the HSAs of all comparable participating employees who are
mid-year eligible individuals. Likewise, if the employer contributes
the maximum annual contribution amount for the calendar year to the HSA
of any employee who is a mid-year eligible individual, the employer
must contribute that same amount to the HSAs of all comparable
participating employees who are mid-year eligible individuals.
Special Comparability Rules for Qualified HSA Distributions
Section 302(a) of the Act provides for qualified HSA distributions.
See section 106(e) and Notice 2007-22 (2007-10 IRB 670). See Sec.
601.601(d)(2). A qualified HSA distribution is a direct distribution of
an amount from a health flexible spending arrangement (health FSA) or a
health reimbursement arrangement (HRA) to an HSA. The distribution must
not exceed the lesser of the balance in the health FSA or HRA on
September 21, 2006, or as of the date of the distribution. Section
54.4980G-7 of the proposed regulations would provide that if an
employer offers qualified HSA distributions to any employee who is an
eligible individual covered under any HDHP, the employer must offer
qualified HSA distributions to all employees who are eligible
individuals covered under any HDHP. However, an employer that offers
qualified HSA distributions only to employees who are eligible
individuals covered under the employer's HDHP is not required to offer
qualified HSA distributions to employees who are eligible individuals
but are not covered under the employer's HDHP.
Requirement of Return and Time for Filing of the Excise Tax Under
Section 4980B, 4980D, 4980E or 4980G
The regulations provide that persons who are liable for the excise
tax under section 4980B, 4980D, 4980E, or 4980G are required to file a
return on Form 8928, ``Return of Certain Excise Taxes Under Chapter 43
of the Internal Revenue Code.'' The excise tax under section 4980B,
4980D, 4980E or 4980G must be paid at the time prescribed for filing of
the excise tax return (without extensions). With respect to the excise
tax under section 4980B or 4980D for employers and third parties such
as insurers or third party administrators, the return is due on or
before the due date for filing the person's federal income tax return.
An extension to file the person's income tax return does not extend the
date for filing Form 8928. With respect to the excise tax under section
4980B or 4980D for multiemployer or specified multiple employer health
plans, the return is due on or before the last day of the seventh month
after the end of the plan year. Finally, with respect to the excise tax
under section 4980E or 4980G for noncomparable contributions, the
return is due on or before the 15th day of the fourth month following
the calendar year in which the noncomparable contributions were made.
[[Page 40796]]
Proposed Effective/Applicability Date
The sections of these regulations that provide guidance on employer
comparable contributions to HSAs under section 4980G are proposed to
apply to employer contributions made on or after the first day of the
first calendar year after the final regulations are published in the
Federal Register. However, taxpayers may rely on these regulations for
guidance with respect to employer contributions made on or after
January 1, 2007, and before the effective date of final regulations.
The sections of these regulations that provide guidance relating to
the excise tax under section 4980B, 4980D, 4980E and 4980G are proposed
to be effective for calendar years (or plan years, where applicable)
beginning after the date the final regulations are published in the
Federal Register.
Special Analyses
It has been determined that these regulations are not a significant
regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required. It also has been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
does not apply to these regulations. It is hereby certified that the
collection of information in these regulations will not have a
significant economic impact on a substantial number of small entities.
This certification is based on the fact, as previously noted, the
estimated burden associated with the information collection averages
thirty minutes per respondent and the estimated number of respondents
is 5000. Moreover, the burden imposed under the collection of
information in these regulations arises only if there has been a
failure that triggers liability for the excise tax under section 4980B,
4980D, 4980E, or 4980G of the Code. Therefore, a Regulatory Flexibility
Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is
not required. Pursuant to section 7805(f) of the Code, this regulation
has been submitted to the Chief Counsel for Advocacy of the Small
Business Administration for comment on its impact on small business.
Comments and Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written comments (a signed original
and eight (8) copies) or electronic comments that are submitted timely
to the IRS. The IRS and the Treasury Department request comments on the
clarity of the proposed regulations and how they can be made easier to
understand. All comments will be available for public inspection and
copying.
The public hearing has been scheduled for October 30, 2008,
beginning at 10 a.m. in room 2116, Internal Revenue Building, 1111
Constitution Avenue, NW., Washington, DC. Due to building security
procedures, visitors must enter at the Constitution Avenue entrance. In
addition, all visitors must present photo identification to enter the
building. Because of access restrictions, visitors will not be admitted
beyond the immediate entrance area more than 30 minutes before the
hearing starts. For information about having your name placed on the
building access list to attend the hearing, see the FOR FURTHER
INFORMATION CONTACT section of this preamble.
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who
wish to present oral comments at the hearing must submit written or
electronic comments by October 14, 2008, and submit an outline of the
topics to be discussed and the time to be devoted to each topic (a
signed original and eight (8) copies) by October 13, 2008. A period of
10 minutes will be allocated to each person for making comments. An
agenda showing the scheduling of the speakers will be prepared after
the deadline for receiving comments has passed. Copies of the agenda
will be available free of charge at the hearing.
Drafting Information
The principal author of these proposed regulations is Mireille
Khoury, Office of Division Counsel/Associate Chief Counsel (Tax Exempt
and Government Entities), Internal Revenue Service. However, personnel
from other offices of the IRS and Treasury Department participated in
their development.
List of Subjects in 26 CFR Part 54
Excise taxes, Pensions, Reporting and recordkeeping requirements.
Proposed Amendment to the Regulations
Accordingly, 26 CFR part 54 is proposed to be amended as follows:
PART 54--PENSION EXCISE TAXES
Paragraph 1. The authority citation for part 54 is amended by
adding entries to the table to read in part as follows:
Authority: 26 U.S.C. 7805 * * *
Section 54.4980G-6 also issued under 26 U.S.C. 4980G. Section
54.4980G-7 also issued under 26 U.S.C. 4980G. * * *
Par. 2. Section 54.4980B-0 is amended by adding a new Q-11 to Sec.
54.4980B-2 in the list of questions to read as follows:
Sec. 54.4980B-0 Table of contents.
* * * * *
List of Questions
* * * * *
Sec. 54.4980B-2 Plans that must comply.
* * * * *
Q-11: If a person is liable for the excise tax under section 4980B,
what form must the person file and what is the due date for the filing
and payment of the excise tax?
* * * * *
Par. 3. Section 54.4980B-2 is amended by adding a new Q & A-11 to
read as follows:
Sec. 54.4980B-2 Plans that must comply.
* * * * *
Q-11: If a person is liable for the excise tax under section 4980B,
what form must the person file and what is the due date for the filing
and payment of the excise tax?
A-11: (a) In general. Any person who is liable for the excise tax
under section 4980B must report this tax by filing Form 8928, ``Return
of Certain Excise Taxes Under Chapter 43 of the Internal Revenue
Code'', and the tax must be paid at the time prescribed for filing such
return (without extensions). The return must include the information
required by Form 8928 and the instructions issued with respect to it.
(b) Due date for filing of return by employers or other persons
responsible for benefits under a group health plan. If the person
liable for the excise tax is an employer or other person responsible
for providing or administering benefits under a group health plan (such
as an insurer or a third party administrator), the return must be filed
on or before the due date for filing the person's income tax return and
must reflect the portion of the noncompliance period for each failure
under section 4980B that falls during the person's taxable year. An
extension to file the person's income tax return does not extend the
date for filing Form 8928.
(c) Due date for filing of return by multiemployer plans. If the
person liable for the excise tax is a multiemployer plan, the return
must be filed on or before the last day of the seventh month following
the end of the plan's plan year. The filing of Form 8928 by a plan must
reflect the portion of the noncompliance period for each failure under
section 4980B that falls during the plan's plan year.
[[Page 40797]]
(d) Effective/applicability date. In the case of an employer or
other person mentioned in paragraph (b) of this Q & A-11, the rules in
this Q & A-11 are effective for taxable years beginning after the date
the final regulations are published in the Federal Register. In the
case of a plan mentioned in paragraph (c) of this Q & A-11, the rules
in this Q & A-11 are effective for plan years beginning after the date
the final regulations are published in the Federal Register.
Par. 4. Section 54.4980D-1 is added to read as follows:
Sec. 54.4980D-1 Requirement of return and time for filing of the
excise tax under section 4980D.
Q-1: If a person is liable for the excise tax under section 4980D,
what form must the person file and what is the due date for the filing
and payment of the excise tax?
A-1: (a) In general. Any person who is liable for the excise tax
under section 4980D must report this tax by filing Form 8928, ``Return
of Certain Excise Taxes Under Chapter 43 of the Internal Revenue
Code'', and the tax must be paid at the time prescribed for filing such
return (without extensions). The return must include the information
required by Form 8928 and the instructions issued with respect to it.
(b) Due date for filing of return by employers. If the person
liable for the excise tax is an employer, the return must be filed on
or before the due date for filing the employer's income tax return and
must reflect the portion of the noncompliance period for each failure
under chapter 100 that falls during the employer's taxable year. An
extension to file the employer's income tax return does not extend the
date for filing Form 8928.
(c) Due date for filing of return by multiemployer plans or
multiple employer health plans. If the person liable for the excise tax
is a multiemployer plan or a specified multiple employer health plan,
the return must be filed on or before the last day of the seventh month
following the end of the plan's plan year. The filing of Form 8928 by a
plan must reflect the portion of the noncompliance period for each
failure under chapter 100 that falls during the plan's plan year.
(d) Effective/applicability date. In the case of an employer or
other person mentioned in paragraph (b) of this Q & A-1, the rules in
this Q & A-1 are effective for taxable years beginning after the date
the final regulations are published in the Federal Register. In the
case of a plan mentioned in paragraph (c) of this Q & A-1, the rules in
this Q & A-1 are effective for plan years beginning after the date the
final regulations are published in the Federal Register.
Par. 5. Section 54.4980E-1 is added to read as follows:
Sec. 54.4980E-1 Requirement of return and time for filing of the
excise tax under section 4980E.
Q-1: If a person is liable for the excise tax under section 4980E,
what form must the person file and what is the due date for the filing
and payment of the excise tax?
A-1: (a) In general. Any employer who is liable for the excise tax
under section 4980E must report this tax by filing Form 8928, ``Return
of Certain Excise Taxes Under Chapter 43 of the Internal Revenue
Code'', on or before the 15th day of the fourth month following the
calendar year in which the noncomparable contributions were made. The
tax must be paid at the time prescribed for filing such return (without
extensions), and the return must include the information required by
Form 8928 and the instructions issued with respect to it.
(b) Effective/applicability date. The rules in this Q & A-1 are
effective for plan years beginning after the date the final regulations
are published in the Federal Register.
Par. 6. Section 54.4980G-1 is amended by:
1. Revising the last sentence in A-1 and adding a new sentence at
the end of paragraph (a) in A-2.
2. Adding a new Q & A-5.
The revisions and addition read as follows:
Sec. 54.4980G-1 Failure of employer to make comparable health savings
account contributions.
* * * * *
A-1: * * * But see Q & A-6 in Sec. 54.4980G-3 for treatment of
collectively bargained employees and Q & A-1 in Sec. 54.4980G-6 for
the rules allowing larger comparable contributions to nonhighly
compensated employees.
* * * * *
A-2: (a) * * * See also Sec. 54.4980G-6 for the rules allowing
larger comparable contributions to nonhighly compensated employees.
* * * * *
Q-5: If a person is liable for the excise tax under section 4980G,
what form must the person file and what is the due date for the filing
and payment of the excise tax?
A-5: (a) In general. Any employer who is liable for the excise tax
under section 4980E must report this tax by filing Form 8928, ``Return
of Certain Excise Taxes Under Chapter 43 of the Internal Revenue
Code'', on or before the 15th day of the fourth month following the
calendar year in which the noncomparable contributions were made. The
tax must be paid at the time prescribed for filing such return (without
extensions), and the return must include the information required by
Form 8928 and the instructions issued with respect to it. See Q & A-4
of Sec. 54.4980G-1 for the rules on computation of the excise tax
under section 4980G.
(b) Effective/applicability date. The rules in this Q & A-5 are
effective for plan years beginning after the date the final regulations
are published in the Federal Register.
Par. 7. Section 54.4980G-3 is amended by:
1. Revising the introductory text in paragraph (a) of A-5.
2. Adding a new sentence at the end of paragraph (c) of A-5 and
paragraph (a) of A-9.
The revision and additions read as follows:
Sec. 54.4980G-3 Failure of employer to make comparable health savings
account contributions.
* * * * *
A-5: (a) Categories. The categories of employees for comparability
testing are as follows (but see Q & A-6 of this section for the
treatment of collectively bargained employees and Q & A-1 of Sec.
54.4980G-6 for a special rule for contributions made to the HSAs of
nonhighly compensated employees)--
* * * * *
(c) * * * But see Sec. 54.4980G-6 for a special rule for
contributions made to the HSAs of nonhighly compensated employees.
* * * * *
A-9: (a) * * * See Sec. 54.4980G-6 for a special rule for
contributions made to the HSAs of nonhighly compensated employees.
* * * * *
Par. 8. Section 54.4980G-4 is amended by:
1. Adding a new sentence at the end of paragraph (a) of A-1.
2. Adding paragraphs (h) and (i) to A-2.
The additions read as follows:
Sec. 54.4980G-4 Calculating comparable contributions.
* * * * *
A-1: (a) * * * But see Q & A-1 of Sec. 54.4980G-6 for a special
rule for contributions made to the HSAs of nonhighly compensated
employees.
* * * * *
[[Page 40798]]
A-2: * * *
* * * * *
(h) Maximum contribution permitted for all employees who are
eligible individuals during the last month of the taxable year. An
employer may contribute up to the maximum annual contribution amount
for the calendar year (based on the employees' HDHP coverage) to the
HSAs of all employees who are eligible individuals during the last
month of the taxable year, including employees who worked for the
employer for less than the entire calendar year and employees who
became eligible individuals after January 1st of the calendar year. For
example, such contribution may be made on behalf of an eligible
individual who is hired after January 1st or an employee who becomes an
eligible individual after January 1st. Employers are not required to
provide more than a pro-rata contribution based on the number of months
that an individual was an eligible individual and employed by the
employer during the year. However, if an employer contributes more than
a pro-rata amount for the calendar year to the HSA of any eligible
individual who is hired after January 1st of the calendar year or any
employee who becomes an eligible individual any time after January 1st
of the calendar year, the employer must contribute that same amount on
an equal and uniform basis to the HSAs of all comparable participating
employees (as defined in Q & A-1 in Sec. 54.4980G-1) who are hired or
become eligible individuals after January 1st of the calendar year.
Likewise, if an employer contributes the maximum annual contribution
amount for the calendar year to the HSA of any eligible individual who
is hired after January 1st of the calendar year or any employee who
becomes an eligible individual any time after January 1st of the
calendar year, the employer must contribute the maximum annual
contribution amount on an equal and uniform basis to the HSAs of all
comparable participating employees (as defined in Q & A-1 in Sec.
54.4980G-1) who are hired or become eligible individuals after January
1st of the calendar year. An employer who makes the maximum calendar
year contribution or more than a pro-rata contribution to the HSAs of
employees who become eligible individuals after the first day of the
calendar year or eligible individuals who are hired after the first day
of the calendar year will not fail to satisfy comparability merely
because some employees will have received more contributions on a
monthly basis than employees who worked the entire calendar year.
(i) Examples. The following examples illustrate the rules in
paragraph (h) in this Q & A-2. In the following examples, no
contributions are made through a section 125 cafeteria plan and none of
the employees are covered by a collective bargaining agreement.
Example 1. On January 1, 2009, Employer Q contributes $1,000 for
the calendar year to the HSAs of employees who are eligible
individuals with family HDHP coverage. In mid-March of the same
year, Employer Q hires Employee A, an eligible individual with
family HDHP coverage. On April 1, 2009, Employer Q contributes
$1,000 to the HSA of Employee A. In September of the same year,
Employee B becomes an eligible individual with family HDHP coverage.
On October 1, 2009, Employer G contributes $1,000 to the HSA of
Employee B. Employer Q does not make any other contributions for the
2009 calendar year. Employer Q's contributions satisfy the
comparability rules.
Example 2. For the 2009 calendar year, Employer R only has two
employees, Employee C and Employee D. Employee C, an eligible
individual with family HDHP coverage, works for Employer R for the
entire calendar year. Employee D, an eligible individual with family
HDHP coverage works for Employer R from July 1st through December
31st. Employer R contributes $1,200 for the calendar year to the HSA
of Employee C and $600 to the HSA of Employee D. Employer R does not
make any other contributions for the 2009 calendar year. Employer
R's contributions satisfy the comparability rules.
* * * * *
Par. 9. Section 54.4980G-6 is added to read as follows:
Sec. 54.4980G-6 Special rule for contributions made to the HSAs of
nonhighly compensated employees.
Q-1: May an employer make larger contributions to the HSAs of
nonhighly compensated employees than to the HSAs of highly compensated
employees?
A-1: Yes. Employers may make larger HSA contributions for nonhighly
compensated employees who are comparable participating employees than
for highly compensated employees who are comparable participating
employees. See Q & A-1 in Sec. 54.4980G-1 for the definition of
comparable participating employee. For purposes of this section, highly
compensated employee is defined under section 414(q). Nonhighly
compensated employees are employees that are not highly compensated
employees. The comparability rules continue to apply with respect to
contributions to the HSAs of all nonhighly compensated employees.
Employers must make comparable contributions for the calendar year to
the HSA of each nonhighly compensated employee who is a comparable
participating employee.
Q-2: May an employer make larger contributions to the HSAs of
highly compensated employees than to the HSAs of nonhighly compensated
employees?
A-2: (a) In general. No. Employer contributions to HSAs for highly
compensated employees who are comparable participating employees may
not be larger than employer HSA contributions for nonhighly compensated
employees who are comparable participating employees. The comparability
rules continue to apply with respect to contributions to the HSAs of
all highly compensated employees. Employers must make comparable
contributions for the calendar year to the HSA of each highly
compensated comparable participating employee. See Q & A-1 in Sec.
54.4980G-1 for the definition of comparable participating employee.
(b) Examples. The following examples illustrate the rules in Q & A-
1 and Q & A-2 of this section. No contributions are made through a
section 125 cafeteria plan and none of the employees in the following
examples are covered by a collective bargaining agreement. All of the
employees in the following examples have the same HDHP deductible for
the same category of coverage.
Example 1. In 2009, Employer A contributes $1,000 for the
calendar year to the HSA of each full-time nonhighly compensated
employee who is an eligible individual with self-only HDHP coverage.
Employer A makes no contribution to the HSA of any full-time highly
compensated employee who is an eligible individual with self-only
HDHP coverage. Employer A's HSA contributions for calendar year 2009
satisfy the comparability rules.
Example 2. In 2009, Employer B contributes $2,000 for the
calendar year to the HSA of each full-time nonhighly compensated
employee who is an eligible individual with self-only HDHP coverage.
Employer B also contributes $1,000 for the calendar year to the HSA
of each full-time highly compensated employee who is an eligible
individual with self-only HDHP coverage. Employer B's HSA
contributions for calendar year 2009 satisfy the comparability
rules.
Example 3. In 2009, Employer C contributes $1,000 for the
calendar year to the HSA of each full-time nonhighly compensated
employee who is an eligible individual with self-only HDHP coverage.
Employer C contributes $2,000 for the calendar year to the HSA of
each full-time highly compensated employee who is an eligible
individual with self-only HDHP coverage. Employer C's HSA
contributions for calendar year 2009 do not satisfy the
comparability rules.
[[Page 40799]]
Example 4. In 2009, Employer D contributes $1,000 for the
calendar year to the HSA of each full-time nonhighly compensated
employee who is an eligible individual with self-only HDHP coverage.
Employer D also contributes $1,000 to the HSA of each full-time
highly compensated employee who is an eligible individual with self-
only HDHP coverage. In addition, the employer contributes an
additional $500 to the HSA of each nonhighly compensated employee
who participates in a wellness program. The nonhighly compensated
employees did not receive comparable contributions, and, therefore,
Employer D's HSA contributions for calendar year 2009 do not satisfy
the comparability rules.
Example 5. In 2009, Employer E contributes $1,000 for the
calendar year to the HSA of each full-time non-management nonhighly
compensated employee who is an eligible individual with family HDHP
coverage. Employer E also contributes $500 for the calendar year to
the HSA of each full-time management nonhighly compensated employee
who is an eligible individual with family HDHP coverage. The
nonhighly compensated employees did not receive comparable
contributions, and, therefore, Employer E's HSA contributions for
calendar year 2009 do not satisfy the comparability rules.
Q-3: May an employer make larger HSA contributions for employees
with self plus two HDHP coverage than employees with self plus one HDHP
coverage even if the employees with self plus two are all highly
compensated employees and the employees with self plus one are all
nonhighly compensated employees?
A-3: (a) Yes. Q & A-1 in Sec. 54.4980G-4 provides that an
employer's contribution with respect to the self plus two category of
HDHP coverage may not be less than the contribution with respect to the
self plus one category and the contribution with respect to the self
plus three or more category may not be less than the contribution with
respect to the self plus two category. Therefore, the comparability
rules are not violated if an employer makes a larger HSA contribution
for the self plus two category of HDHP coverage than to self plus one
coverage, even if the employees with self plus two coverage are all
highly compensated employees and the employees with self plus one
coverage are all nonhighly compensated employees. Likewise, the
comparability rules are not violated if an employer makes a larger HSA
contribution for the self plus three category of HDHP coverage than to
self plus two coverage, even if the employees with self plus three
coverage are all highly compensated employees and the employees with
self plus two coverage are all nonhighly compensated employees.
(b) Example. The following example illustrates the rules in
paragraph (a) of this Q & A-3. In the following examples, no
contributions are made through a section 125 cafeteria plan and none of
the employees are covered by a collective bargaining agreement.
Example. In 2009, Employer F contributes $1,000 for the calendar
year to the HSA of each full-time employee who is an eligible
individual with self plus one HDHP coverage. Employer F contributes
$1,500 for the calendar year to the HSA of each employee who is an
eligible individual with self plus two HDHP coverage. The deductible
for both the self plus one HDHP and the self plus two HDHP is
$2,000. Employee A, an eligible individual, is a nonhighly
compensated employee with self plus one coverage. Employee B, an
eligible individual, is a highly compensated employee with self plus
two coverage. For the 2009 calendar year, Employer F contributes
$1,000 for to Employee A's HSA and $1,500 to Employee B's HSA.
Employer F's HSA contributions satisfy the comparability rules.
Par. 10. Section 54.4980G-7 is added to read as follows:
Sec. 54.4980G-7 Special comparability rules for qualified HSA
distributions contributed to HSAs on or after December 20, 2006 and
before January 1, 2012.
Q-1: How do the comparability rules of section 4980G apply to
qualified HSA distributions under section 106(e)(2)?
A-1: The comparability rules of section 4980G do not apply to
amounts contributed to employee HSAs through qualified HSA
distributions. However, in order to satisfy the comparability rules, if
an employer offers qualified HSA distributions, as defined in section
106(e)(2), to any employee who is an eligible individual covered under
any HDHP, the employer must offer qualified HSA distributions to all
employees who are eligible individuals covered under any HDHP. However,
if an employer offers qualified HSA distributions only to employees who
are eligible individuals covered under the employer's HDHP, the
employer is not required to offer qualified HSA distributions to
employees who are eligible individuals but are not covered under the
employer's HDHP.
Linda E. Stiff,
Deputy Commissioner for Services and Enforcement.
[FR Doc. E8-16175 Filed 7-15-08; 8:45 am]
BILLING CODE 4830-01-P