Spouse-plan reimbursement depends on after-tax payment

Plain-English summary

An employer considered paying employees for health coverage obtained through their spouses' employer plans. Chief Counsel advised that payments may be excluded under IRC § 106 when the spouse paid the covered cost on an after-tax basis, and those payments are also excluded from income-tax withholding, FICA, and FUTA. If the spouse paid through a section 125 salary reduction, a second employer payment cannot receive another exclusion, and the reimbursement arrangement or HRA fails to be a health plan for all participants. An HRA may still reimburse separate substantiated section 213(d) medical expenses even when its annual limit equals the spouse's premium contribution.

Ruling snapshot

• Question: When may an employer exclude payments for an employee's coverage under the spouse's employer-sponsored group health plan?
• Outcome: Advice given
• Key authorities: IRC §§ 105, 106, 125, 213(d); Rev. Rul. 2002-3

Full text (IRS public release)

       Office of Chief Counsel
       Internal Revenue Service
       memorandum
       Number: 201547006
       Release Date: 11/20/2015
       CC:TEGE:EB:HW:
       PRESP-116291-15

UILC: 105.00-00, 106.00-00

date: October 07, 2015

 to:   J. Lynne McCoy
       Acting Program Manager, SB/SE Employment Tax Policy
       SE:S:E:HQ:SEP&Q:EMPTP
       Attn: Jay Jensen
       SB/SE Employment Tax Policy Analyst

from: Harry Beker
Chief, Health and Welfare Branch
CC:TEGE:EB:HW

subject: Employer Payment of Employee Health Insurance Coverage Provided Under a
Spouse's Group Health Plan

       This Chief Counsel Advice responds to your request for assistance. This advice may not
       be used or cited as precedent.


       ISSUE

       May an employer exclude from an employee’s income under section 105 or section 106
       payments for the cost of health insurance coverage provided to the employee through
       his or her spouse’s employer’s group health plan?

       CONCLUSION

       An employer may exclude from an employee’s gross income payments for the cost of
       health insurance coverage provided through the spouse’s group health plan but only to
       the extent the spouse has paid for all or part of the coverage on an after-tax basis and
       not through salary-reduction under a section 125 cafeteria plan.

PRESP-116291-15 2

FACTS

Situation 1. A and B are married individuals. A and B work for separate employers.
A’s employer offers a group health plan to A that A declines. A’s employer also
provides an arrangement under which it will reimburse A for the cost of coverage
incurred by A’s spouse. B participates in B’s employer’s group health plan. Under B’s
employer’s plan, an employee participating in the plan, such as B , must make either an
after-tax contribution of $100 per month for self-only insured coverage or an after-tax
contribution of $175 per month for other than self-only insured coverage. B elects other
than self-only coverage to cover both B and A under B’s employer’s group health plan.
A substantiates to A’s employer that A’s spouse has $175 per month deducted from the
spouse’s pay on an after-tax basis, $75 of which represents the cost of A’s insured
coverage. A’s employer pays A $75 per month in addition to A’s other compensation.

Situation 2. Same facts as Situation 1, except A’s employer pays A $175 per month in
addition to A’s other compensation, representing B’s entire after-tax contribution for
coverage under B’s employer’s group health plan.

Situation 3. Same facts as Situation 1, except that B makes the contribution to B’s
employer’s group health plan by salary reduction through B’s employer’s section 125
cafeteria plan. A substantiates to A’s employer that A’s spouse, B, contributes $175 per
month on a pre-tax basis through salary-reduction for other than self-only insured
coverage under B’s employer’s group health plan. A’s employer pays A $75 per month
in addition to A’s other compensation.

Situation 4. Same facts as Situation 1, except that A’s employer offers A health
coverage under a group health plan. B (A’s spouse) elects self-only insured coverage
under the group health plan of B’s employer and makes the $100 per month employee
contribution by salary reduction through B’s employer’s section 125 cafeteria plan. A
substantiates to A’s employer that A’s spouse, B, contributes $100 per month on a pre-
tax basis through salary-reduction for self-only insured coverage under B’s employer’s
group health plan. A’s employer pays A $100 per month in addition to A’s other
compensation.

Situation 5. Same facts as Situation 1, except that A’s employer provides an
arrangement under which it will contribute to a health reimbursement arrangement (A’s
employer’s HRA) that will reimburse A for unreimbursed medical expenses, including
health insurance premiums, up to $2,100 for the year ($175 x 12, the amount of the cost
of coverage incurred by A’s spouse). Employee A substantiates to A’s employer that
A’s spouse has $175 per month deducted from the spouse’s pay on an after-tax basis,
$75 of which represents the cost of Employee A’s insured coverage. A’s employer’s
HRA reimburses Employee A $175 per month.

Situation 6. Same facts as Situation 5, except that B makes the contribution to B’s
employer’s group health plan by salary reduction through B’s employer’s section 125
cafeteria plan.
PRESP-116291-15 3

Situation 7. Same facts as Situation 6, except that A substantiates to A’s employer that
A and A’s spouse, B, have incurred section 213 medical expenses of $2,100 during the
year other than the premium contributions by B for the health plan with B’s employer,
and A’s employer’s HRA reimburses those unreimbursed expenses. The HRA does not
reimburse the premium contribution by B through salary reduction to B’s employer’s
group health plan.

LAW AND ANALYSIS

Section 61(a)(1) of the Internal Revenue Code and section 1.61-21(a)(3) of the Income
Tax Regulations provide that, except as otherwise provided in subtitle A, gross income
includes compensation for services, including fees, commissions, fringe benefits, and
similar items.

Section 106 provides that “gross income of an employee does not include employer-
provided coverage under an accident or health plan.” Section 1.106-1 provides that the
gross income of an employee does not include contributions which the employee’s
employer makes to an accident or health plan for compensation (through insurance or
otherwise) for personal injuries or sickness to the employee or the employee’s spouse
or dependents (as defined in section 152).

Section 105(e) states that amounts received under an accident or health plan for
employees are treated as amounts received through accident or health insurance for
purposes of section 105. Section 1.105-5(a) provides that an accident or health plan is
an arrangement for the payment of amounts to employees in the event of personal
injuries or sickness.

Under section 125, an employer may establish a cafeteria plan that permits an
employee to choose among two or more benefits, consisting of cash (generally, salary)
and qualified benefits, including accident or health coverage. Pursuant to section 125,
the amount of an employee’s salary reduction applied to purchase such coverage is not
included in gross income, even though it was available to the employee and the
employee could have chosen to receive cash instead.

To the extent amounts are excluded from gross income under section 106(a), they are
also excluded from wages subject to income tax withholding under section 3401. In
addition, amounts paid, under a plan or system established by an employer that makes
provision for the employer’s employees generally (or for the employees generally and
their spouses and dependents) or for a class or classes of the employer’s employees
(or for a class or classes of the employer’s employees and their spouses and
dependents), to reimburse medical expenses incurred are excluded from wages subject
to FICA and FUTA taxes under sections 3121(a)(2) and 3306(b)(2).

DISCUSSION
PRESP-116291-15 4

In Situation 1 and Situation 2, A’s employer pays A for all or part of the substantiated
cost of insured health coverage paid by B (A’s spouse) on an after-tax basis under B’s
employer’s group health plan (that is, either $75 or $175 per month). These amounts
are excluded from A’s gross income under section 106 because A’s employer is paying
the premium (or a portion of the premium) on a group health plan covering one or more
employees, the employee’s spouse and dependents, or by contributing to a separate
trust or fund, which provides accident or health benefits directly or through insurance to
one or more employees, the employees’ spouse and dependents. The payments are
also excluded from FICA taxes, FUTA taxes, and Federal income tax withholding. The
fact that the insured group health plan is provided by B’s employer and not A’s employer
does not change the result under these facts.

In Situation 3 and Situation 4, the amount paid for the insured health coverage by B (A’s
spouse) through salary-reduction under a section125 cafeteria plan has been excluded
from the spouse’s gross income. An employer may not exclude from gross income
under section 106 an amount paid to an employee for insured health coverage that has
already been excluded from gross income as employer-provided coverage (including
salary-reduction amounts pursuant to a section 125 cafeteria plan). See Rev. Rul.
2002-3, 2002-3 IRB 316, providing that the exclusion from gross income under section
106(a) do not apply to amounts that an employer pays employees for health insurance
coverage that have already been excluded from gross income under section 106(a)
(including salary reduction amounts pursuant to a section 125 cafeteria plan).
Accordingly, the arrangement under which A’s employer makes payments to A fails to
be a health plan and no amounts paid under the arrangement to any participant are
excluded from the gross income under section 105. The amounts paid under the
arrangement to A and other participants are also subject to FICA taxes, FUTA taxes,
and Federal income tax withholding.

In Situation 5, A’s employer’s HRA pays A for all of the substantiated cost of insured
health coverage paid by B (A’s spouse) on an after-tax basis under B’s employer’s
group health plan (that is, $175 per month). These amounts are excluded from A’s
gross income under section 106 because A’s employer is paying the premium on a
group health plan covering one or more employees, the employee’s spouse and
dependents, or by contributing to a separate trust or fund, which provides accident or
health benefits directly or through insurance to one or more employees, the employees’
spouse and dependents. The payments are also excluded from FICA taxes, FUTA
taxes, and Federal income tax withholding. The fact that the insured group health plan
is provided by B’s employer and not A’s employer does not change the result under
these facts.

In Situation 6, the amount paid for the insured health coverage by B (A’s spouse)
through salary-reduction under a section 125 cafeteria plan has been excluded from B’s
gross income. An HRA may not reimburse an amount paid to an employee for insured
health coverage that has already been excluded from gross income as employer-
provided coverage (including salary-reduction amounts pursuant to a section 125
cafeteria plan). See Rev. Rul. 2002-3, 2002-3 IRB 316. Accordingly, A’s employer’s
PRESP-116291-15 5

HRA fails to be a health plan and no amounts paid by the HRA to any participant are
excluded from the gross income under section 105. The amounts paid by the HRA to
participants are also subject to FICA taxes, FUTA taxes, and Federal income tax
withholding.

In Situation 7, A’s employer’s HRA only reimburses amounts representing unreimbursed
section 213(d) medical expenses. The amounts are excluded from A’s gross income
under section 105(b) and also excluded from FICA taxes, FUTA taxes, and Federal
income tax withholding. The fact that the maximum amount reimbursed under the HRA
is the same amount as the contributions by B for coverage under B’s employer’s plan is
irrelevant.

Please call me at (202) 317-5500 if you have any further questions.