Amended 1986, 1988, 1996
- 1996 Pub. L. 104-191 Pub. L. 104–191, § 301(c)(1), amended text generally. Prior to amendment, text read as follows: “Gross income of an employee does not include employer-provided coverage under an accident or health plan.”
- 1988 Pub. L. 100-647 Pub. L. 100–647, § 3011(b)(1), amended section generally, substituting a single undesignated par. for former subsec. (a) providing that gross income does not include employer-provided coverage under an accident or health plan and subsec. (b) providing for an exception for highly compensated individuals where a plan fails to provide certain continuation coverage.
- 1986 Pub. L. 99-272 Pub. L. 99–272 designated existing provisions as subsec. (a) and added subsec. (a) heading and subsec. (b).
Cases: Adkins v. United States, 882 F.2d 1078 (6th Cir. 1989)
Final rules 1
(a) General rule Except as otherwise provided in this section, gross income of an employee does not include employer-provided coverage under an accident or health plan.
Amended 1986
- 1986 Pub. L. 99-514 Pub. L. 99–514, § 1151(j)(2), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “Gross income does not include contributions by the employer to accident or health plans for compensation (through insurance or otherwise) to his employees for personal injuries or sickness.”
Cases: DKD Enterprises v. Commissioner, 685 F.3d 730 (8th Cir. 2012)
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(b) Contributions to Archer MSAs
Amended 2000
- 2000 Pub. L. 106-554 Pub. L. 106–554 § 1(a)(7) [title II, § 202(b)(6)], substituted “Archer MSAs” for “medical savings accounts” in heading.
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(1) In general In the case of an employee who is an eligible individual, amounts contributed by such employee’s employer to any Archer MSA of such employee shall be treated as employer-provided coverage for medical expenses under an accident or health plan to the extent such amounts do not exceed the limitation under section 220(b)(1) (determined without regard to this subsection) which is applicable to such employee for such taxable year.
Amended 1986, 1988, 2000
- 2000 Pub. L. 106-554 Pub. L. 106–554 § 1(a)(7) [title II, § 202(a)(2)], substituted “Archer MSA” for “medical savings account”.
- 1988 Pub. L. 100-647 Pub. L. 100–647, § 1018(t)(7)(A), substituted “any employer-provided coverage” for “any amount contributed by an employer” and “under a group” for “to a group”.
- 1986 Pub. L. 99-514 Pub. L. 99–514, § 1114(b)(1), substituted “highly compensated employee (within the meaning of section 414(q))” for “highly compensated individual (within the meaning of section 105(h)(5))”.
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(2) No constructive receipt No amount shall be included in the gross income of any employee solely because the employee may choose between the contributions referred to in paragraph (1) and employer contributions to another health plan of the employer.
Amended 1989
- 1989 Pub. L. 101-239 Pub. L. 101–239 amended subsec. (b)(2) as it existed prior to general amendment by Pub. L. 100–647 by striking out the last sentence which read as follows: “Under regulations, rules similar to the rules of subsections (a) and (b) of section 52 (relating to employers under common control) shall apply for purposes of subparagraph (A).” See Effective Date of 1989 Amendment note below.
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(3) Special rule for deduction of employer contributions Any employer contribution to an Archer MSA, if otherwise allowable as a deduction under this chapter, shall be allowed only for the taxable year in which paid.
Amended 2000
- 2000 Pub. L. 106-554 Pub. L. 106–554 § 1(a)(7) [title II, § 202(b)(10)], substituted “an Archer MSA” for “a Archer MSA”.
- 2000 Pub. L. 106-554 Pub. L. 106–554 § 1(a)(7) [title II, § 202(a)(2)], substituted “Archer MSA” for “medical savings account”.
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(4) Employer MSA contributions required to be shown on return Every individual required to file a return under section 6012 for the taxable year shall include on such return the aggregate amount contributed by employers to the Archer MSAs of such individual or such individual’s spouse for such taxable year.
Amended 2000
- 2000 Pub. L. 106-554 Pub. L. 106–554, § 1(a)(7) [title II, § 202(b)(2)(A)], substituted “Archer MSAs” for “medical savings accounts”.
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(5) MSA contributions not part of COBRA coverage Paragraph (1) shall not apply for purposes of section 4980B.
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(6) Definitions For purposes of this subsection, the terms “eligible individual” and “Archer MSA” have the respective meanings given to such terms by section 220.
Amended 2000
- 2000 Pub. L. 106-554 Pub. L. 106–554 § 1(a)(7) [title II, § 202(a)(2)], substituted “Archer MSA” for “medical savings account”.
(7) Cross reference For penalty on failure by employer to make comparable contributions to the Archer MSAs of comparable employees, see section 4980E.
Amended 2000
- 2000 Pub. L. 106-554 Pub. L. 106–554, § 1(a)(7) [title II, § 202(b)(2)(A)], substituted “Archer MSAs” for “medical savings accounts”.
(c) Inclusion of long-term care benefits provided through flexible spending arrangements
Amended 1996
- 1996 Pub. L. 104-191 Pub. L. 104–191, § 321(c)(2), added subsec. (c).
(1) In general Gross income of an employee shall include employer-provided coverage for qualified long-term care services (as defined in section 7702B(c)) to the extent that such coverage is provided through a flexible spending or similar arrangement.
Amended 2014
- 2014 Pub. L. 113-295 Pub. L. 113–295 substituted “Gross income” for “Effective on and after January 1, 1997, gross income”.
(2) Flexible spending arrangement For purposes of this subsection, a flexible spending arrangement is a benefit program which provides employees with coverage under which—
(A) specified incurred expenses may be reimbursed (subject to reimbursement maximums and other reasonable conditions), and
“Reasonable” implies facts and circumstances. No regulation cites this provision (eCFR, Oct 19, 2026)
(B) the maximum amount of reimbursement which is reasonably available to a participant for such coverage is less than 500 percent of the value of such coverage.
“Reasonably” implies facts and circumstances. No regulation cites this provision (eCFR, Oct 19, 2026)
In the case of an insured plan, the maximum amount reasonably available shall be determined on the basis of the underlying coverage.
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(d) Contributions to health savings accounts
Amended 2003
- 2003 Pub. L. 108-173 Pub. L. 108–173 added subsec. (d).
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(1) In general In the case of an employee who is an eligible individual (as defined in section 223(c)(1)), amounts contributed by such employee’s employer to any health savings account (as defined in section 223(d)) of such employee shall be treated as employer-provided coverage for medical expenses under an accident or health plan to the extent such amounts do not exceed the limitation under section 223(b) (determined without regard to this subsection) which is applicable to such employee for such taxable year.
(2) Special rules Rules similar to the rules of paragraphs (2), (3), (4), and (5) of subsection (b) shall apply for purposes of this subsection.
(3) Cross reference For penalty on failure by employer to make comparable contributions to the health savings accounts of comparable employees, see section 4980G.
(e) FSA and HRA terminations to fund HSAs
Amended 2006
- 2006 Pub. L. 109-432 Pub. L. 109–432 added subsec. (e).
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(1) In general A plan shall not fail to be treated as a health flexible spending arrangement or health reimbursement arrangement under this section or section 105 merely because such plan provides for a qualified HSA distribution.
(2) Qualified HSA distribution The term “qualified HSA distribution” means a distribution from a health flexible spending arrangement or health reimbursement arrangement to the extent that such distribution—
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(A) does not exceed the lesser of the balance in such arrangement on September 21, 2006, or as of the date of such distribution, and
(B) is contributed by the employer directly to the health savings account of the employee before January 1, 2012.
Such term shall not include more than 1 distribution with respect to any arrangement.
(3) Additional tax for failure to maintain high deductible health plan coverage
(A) In general If, at any time during the testing period, the employee is not an eligible individual, then the amount of the qualified HSA distribution—
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(i) shall be includible in the gross income of the employee for the taxable year in which occurs the first month in the testing period for which such employee is not an eligible individual, and
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(ii) the tax imposed by this chapter for such taxable year on the employee shall be increased by 10 percent of the amount which is so includible.
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(B) Exception for disability or death Clauses (i) and (ii) of subparagraph (A) shall not apply if the employee ceases to be an eligible individual by reason of the death of the employee or the employee becoming disabled (within the meaning of section 72(m)(7)).
“Substantial” implies facts and circumstances. Cited by Reg. § 1.217-2(d)(1)(ii), Reg. § 1.402A-1(b)(2), Reg. § 1.402A-1(e), Reg. § 1.403(b)-6(c), Reg. § 1.403(b)-6(d)(1)(i), Reg. § 1.408-1(c)(6), Reg. § 1.408A-6(b)(2), Reg. § 1.408A-6(d)(3)(h), Reg. § 1.409-1(d)(2)(i), Reg. § 1.72-17(b)(4), Reg. § 1.72-17(e)(1)(ii)(b), Reg. § 1.72-17(f)(1), Reg. § 1.72-17(f)(2)(ix), Reg. § 1.72-17(f)(3), Reg. § 1.72-17(f)(4), Reg. § 1.72-17A(a), Reg. § 1.72-17A(f)(1), Reg. § 1.72-17A(f)(2)(ix), Reg. § 1.72-17A(f)(3), Reg. § 1.72-17A(f)(4), Reg. § 1.72-18(b)(2)(ii), Reg. § 1.79-2(b)(4)(i)
(4) Definitions and special rules For purposes of this subsection—
(A) Testing period The term “testing period” means the period beginning with the month in which the qualified HSA distribution is contributed to the health savings account and ending on the last day of the 12th month following such month.
(B) Eligible individual The term “eligible individual” has the meaning given such term by section 223(c)(1).
(C) Treatment as rollover contribution A qualified HSA distribution shall be treated as a rollover contribution described in section 223(f)(5).
(5) Tax treatment relating to distributions For purposes of this title—
(A) In general A qualified HSA distribution shall be treated as a payment described in subsection (d).
(B) Comparability excise tax
(i) In general Except as provided in clause (ii), section 4980G shall not apply to qualified HSA distributions.
(ii) Failure to offer to all employees In the case of a qualified HSA distribution to any employee, the failure to offer such distribution to any eligible individual covered under a high deductible health plan of the employer shall (notwithstanding section 4980G(d)) be treated for purposes of section 4980G as a failure to meet the requirements of section 4980G(b).
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(f) Reimbursements for menstrual care products For purposes of this section and section 105, expenses incurred for menstrual care products (as defined in section 223(d)(2)(D)) shall be treated as incurred for medical care.
Amended 2010, 2020
- 2020 Pub. L. 116-136 Pub. L. 116–136 added subsec. (f) and struck out former subsec. (f). Prior to amendment, text read as follows: “For purposes of this section and section 105, reimbursement for expenses incurred for a medicine or a drug shall be treated as a reimbursement for medical expenses only if such medicine or drug is a prescribed drug (determined without regard to whether such drug is available without a prescription) or is insulin.”
- 2010 Pub. L. 111-148 Pub. L. 111–148 added subsec. (f).
(g) Qualified small employer health reimbursement arrangement For purposes of this section and section 105, payments or reimbursements from a qualified small employer health reimbursement arrangement (as defined in section 9831(d)) of an individual for medical care (as defined in section 213(d)) shall not be treated as paid or reimbursed under employer-provided coverage for medical expenses under an accident or health plan if for the month in which such medical care is provided the individual does not have minimum essential coverage (within the meaning of section 5000A(f)).
Amended 2016
- 2016 Pub. L. 114-255 Pub. L. 114–255 added subsec. (g).