Title 26 — Internal Revenue Code
Part III · Chapter 1 — Normal Taxes and Surtaxes
§ 129. Dependent care assistance programs
Statutory text
Exclusion
In general
Gross income of an employee does not include amounts paid or incurred by the employer for dependent care assistance provided to such employee if the assistance is furnished pursuant to a program which is described in subsection (d).
Limitation of exclusion
In general
The amount which may be excluded under paragraph (1) for dependent care assistance with respect to dependent care services provided during a taxable year shall not exceed $7,500 ($3,750 in the case of a separate return by a married individual).
Year of inclusion
The amount of any excess under subparagraph (A) shall be included in gross income in the taxable year in which the dependent care services were provided (even if payment of dependent care assistance for such services occurs in a subsequent taxable year).
Marital status
For purposes of this paragraph, marital status shall be determined under the rules of paragraphs (3) and (4) of section 21(e).
Special rule for 2021
In the case of any taxable year beginning after , and before , subparagraph (A) shall be applied by substituting “$10,500 (half such dollar amount” for “$5,000 ($2,500”.
Earned income limitation
In general
The amount excluded from the income of an employee under subsection (a) for any taxable year shall not exceed—
in the case of an employee who is not married at the close of such taxable year, the earned income of such employee for such taxable year, or
in the case of an employee who is married at the close of such taxable year, the lesser of—
the earned income of such employee for such taxable year, or
the earned income of the spouse of such employee for such taxable year.
Special rule for certain spouses
For purposes of paragraph (1), the provisions of section 21(d)(2) shall apply in determining the earned income of a spouse who is a student or incapable of caring for himself.
Payments to related individuals
No amount paid or incurred during the taxable year of an employee by an employer in providing dependent care assistance to such employee shall be excluded under subsection (a) if such amount was paid or incurred to an individual—
with respect to whom, for such taxable year, a deduction is allowable under section 151(c) (relating to personal exemptions for dependents) to such employee or the spouse of such employee, or
who is a child of such employee (within the meaning of section 152(f)(1)) under the age of 19 at the close of such taxable year.
Dependent care assistance program
In general
For purposes of this section a dependent care assistance program is a separate written plan of an employer for the exclusive benefit of his employees to provide such employees with dependent care assistance which meets the requirements of paragraphs (2) through (8) of this subsection. If any plan would qualify as a dependent care assistance program but for a failure to meet the requirements of this subsection, then, notwithstanding such failure, such plan shall be treated as a dependent care assistance program in the case of employees who are not highly compensated employees.
Discrimination
The contributions or benefits provided under the plan shall not discriminate in favor of employees who are highly compensated employees (within the meaning of section 414(q)) or their dependents.
Eligibility
The program shall benefit employees who qualify under a classification set up by the employer and found by the Secretary not to be discriminatory in favor of employees described in paragraph (2), or their dependents.
Principal shareholders or owners
Not more than 25 percent of the amounts paid or incurred by the employer for dependent care assistance during the year may be provided for the class of individuals who are shareholders or owners (or their spouses or dependents), each of whom (on any day of the year) owns more than 5 percent of the stock or of the capital or profits interest in the employer.
No funding required
A program referred to in paragraph (1) is not required to be funded.
Notification of eligible employees
Reasonable notification of the availability and terms of the program shall be provided to eligible employees.
Statement of expenses
The plan shall furnish to an employee, on or before January 31, a written statement showing the amounts paid or expenses incurred by the employer in providing dependent care assistance to such employee during the previous calendar year.
Benefits
In general
A plan meets the requirements of this paragraph if the average benefits provided to employees who are not highly compensated employees under all plans of the employer is at least 55 percent of the average benefits provided to highly compensated employees under all plans of the employer.
Salary reduction agreements
For purposes of subparagraph (A), in the case of any benefits provided through a salary reduction agreement, a plan may disregard any employees whose compensation is less than $25,000. For purposes of this subparagraph, the term “compensation” has the meaning given such term by section 414(q)(4), except that, under rules prescribed by the Secretary, an employer may elect to determine compensation on any other basis which does not discriminate in favor of highly compensated employees.
Excluded employees
For purposes of paragraphs (3) and (8), there shall be excluded from consideration—
subject to rules similar to the rules of section 410(b)(4), employees who have not attained the age of 21 and completed 1 year of service (as defined in section 410(a)(3)), and
employees not included in a dependent care assistance program who are included in a unit of employees covered by an agreement which the Secretary finds to be a collective bargaining agreement between employee representatives and 1 or more employees, if there is evidence that dependent care benefits were the subject of good faith bargaining between such employee representatives and such employer or employers.
Definitions and special rules
For purposes of this section—
Dependent care assistance
The term “dependent care assistance” means the payment of, or provision of, those services which if paid for by the employee would be considered employment-related expenses under section 21(b)(2) (relating to expenses for household and dependent care services necessary for gainful employment).
Earned income
The term “earned income” shall have the meaning given such term in section 32(c)(2), but such term shall not include any amounts paid or incurred by an employer for dependent care assistance to an employee.
Employee
The term “employee” includes, for any year, an individual who is an employee within the meaning of section 401(c)(1) (relating to self-employed individuals).
Employer
An individual who owns the entire interest in an unincorporated trade or business shall be treated as his own employer. A partnership shall be treated as the employer of each partner who is an employee within the meaning of paragraph (3).
Attribution rules
Ownership of stock
Ownership of stock in a corporation shall be determined in accordance with the rules provided under subsections (d) and (e) of section 1563 (without regard to section 1563(e)(3)(C)).
Interest in unincorporated trade or business
The interest of an employee in a trade or business which is not incorporated shall be determined in accordance with regulations prescribed by the Secretary, which shall be based on principles similar to the principles which apply in the case of subparagraph (A).
Utilization test not applicable
A dependent care assistance program shall not be held or considered to fail to meet any requirements of subsection (d) (other than paragraphs (4) and (8) thereof) merely because of utilization rates for the different types of assistance made available under the program.
Disallowance of excluded amounts as credit or deduction
No deduction or credit shall be allowed to the employee under any other section of this chapter for any amount excluded from the gross income of the employee by reason of this section.
Treatment of onsite facilities
In the case of an onsite facility maintained by an employer, except to the extent provided in regulations, the amount of dependent care assistance provided to an employee excluded with respect to any dependent shall be based on—
utilization of the facility by a dependent of the employee, and
the value of the services provided with respect to such dependent.
Identifying information required with respect to service provider
No amount paid or incurred by an employer for dependent care assistance provided to an employee shall be excluded from the gross income of such employee unless—
the name, address, and taxpayer identification number of the person performing the services are included on the return to which the exclusion relates, or
if such person is an organization described in section 501(c)(3) and exempt from tax under section 501(a), the name and address of such person are included on the return to which the exclusion relates.
In the case of a failure to provide the information required under the preceding sentence, the preceding sentence shall not apply if it is shown that the taxpayer exercised due diligence in attempting to provide the information so required.
Legislative history
Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.
Economic Recovery Tax Act of 1981
Pub. L. 97–34 title I § 124(e)(1) · 95 Stat. 175
Enacted · 26 U.S.C. § 129
Added Pub. L. 97–34, title I, § 124(e)(1), Aug. 13, 1981, 95 Stat. 198
Source evidence
Code source credit
Added Pub. L. 97–34, title I, § 124(e)(1), Aug. 13, 1981, 95 Stat. 198Enacted provision · exact public law section
(1) In general.— Part III of subchapter B of chapter 1 (as Post, p. 267. amended by section 301) is amended by redesignating section 129 as section 130 and inserting after section 128 the following new section: “SEC. 129. DEPENDENT CARE ASSISTANCE PROGRAMS. “(a) In General.— Gross income of an employee does not include amounts paid or incurred by the employer for dependent care assistance provided to such employee if the assistance is furnished pursuant to a program which is described in subsection (d). “(b) Earned Income Limitation.— “(1) In general.— The amount excluded from the income of an employee under subsection (a) for any taxable year shall not exceed— “(A) in the case of an employee who is not married at the close of such taxable year, the earned income of such employee for such taxable year, or “(B) in the case of an employee who is married at the close of such taxable year, the lesser of— “(i) the earned income of such employee for such taxable year, or “(ii) the earned income of the spouse of such employee for such taxable year. “(2) Special rule for certain spouses.— For purposes of paragraph (1), the provisions of section 44A(e)(2) shall apply in determining the earned income of a spouse who is a student or incapable of caring for himself. “(c) Payments to Related Individuals.— No amount paid or incurred during the taxable year of an employee by an employer in providing dependent care assistance to such employee shall be excluded under subsection (a) if such amount was paid or incurred to an individual— “(1) with respect to whom, for such taxable year, a deduction is allowable under section 151(e) (relating to personal exemptions for dependents) to such employee or the spouse of such employee, or “(2) who is a child of such employee (within the meaning of section 151(e)(3)) under the age of 19 at the close of such taxable year. “(d) Dependent Care Assistance Program.— “(1) In general.— For purposes of this section a dependent care assistance program is a separate written plan of an employer for the exclusive benefit of his employees to provide such employees with dependent care assistance which meets the requirements of paragraphs (2) through (6) of this subsection. “(2) Eligibility.— The program shall benefit employees who qualify under a classification set up by the employer and found by the Secretary not to be discriminatory in favor of employees who are officers, owners, or highly compensated, or their dependents. For purposes of this paragraph, there shall be excluded from consideration employees not included in the program who are included in a unit of employees covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representatives and one or more employers, if there is evidence that dependent care benefits were the subject of good faith bargaining between such employee representatives and such employer or employers. “(3) Principal shareholders or owners.— Not more than 25 percent of the amounts paid or incurred by the employer for dependent care assistance during the year may be provided for the class of individuals who are shareholders or owners (or their spouses or dependents), each of whom (on any day of the year) owns more than 5 percent of the stock or of the capital or profits interest in the employer. “(4) No funding required.— A program referred to in paragraph (1) is not required to be funded. “(5) Notification of eligible employees.— Reasonable notification of the availability and terms of the program shall be provided to eligible employees. “(6) Statement of expenses.— The plan shall furnish to an employee, on or before January 31, a written statement showing the amounts paid or expenses incurred by the employer in providing dependent care assistance to such employee during the previous calendar year. “(e) Definitions and Special Rules.— For purposes of this section— “(1) Dependent care assistance.— The term ‘dependent care assistance’ means the payment of, or provision of, those services which if paid for by the employee would be considered employment-related expenses under section 44A(c)(2) (relating to expenses for household and dependent care services necessary for gainful employment). “(2) Earned income.— The term ‘earned income’ shall have the meaning given such term in section 43(c)(2), but such term shall not include any amounts paid or incurred by an employer for dependent care assistance to an employee. “(3) Employee.— The term ‘employee’ includes, for any year, an individual who is an employee within the meaning of section 401(c)(1) (relating to self-employed individuals). “(4) Employer.— An individual who owns the entire interest in an unincorporated trade or business shall be treated as his own employer. A partnership shall be treated as the employer of each partner who is an employee within the meaning of paragraph (3). “(5) Attribution rules.— “(A) Ownership of stock.— Ownership of stock in a corporation shall be determined in accordance with the rules provided under subsections (d) and (e) of section 1563 (without regard to section 1563(e)(3)(C)). “(B) Interest in unincorporated trade or business.— The interest of an employee in a trade or business which is not incorporated shall be determined in accordance with regulations prescribed by the Secretary, which shall be based on principles similar to the principles which apply in the case of subparagraph (A). “(6) Utilization test not applicable.— A dependent care assistance program shall not be held or considered to fail to meet any requirements of subsection (d) merely because of utilization rates for the different types of assistance made available under the program. “(7) Disallowance of excluded amounts as credit or deduction.— No deduction or credit shall be allowed under any other section of this chapter for any amount excluded from income by reason of this section.”Pub. L. 97–448 § 101(e)(1)(C) · 96 Stat. 2365
Substituted · 26 U.S.C. § 129(d)(1)
Pub. L. 97–448, § 101(e)(1)(C), substituted “paragraphs (2) through (7)” for “paragraphs (2) through (6)”
Source evidence
Code amendment note
Subsec. (d)(1). Pub. L. 97–448, § 101(e)(1)(C), substituted “paragraphs (2) through (7)” for “paragraphs (2) through (6)”.Enacted provision · exact public law section
(C) Paragraph (1) of section 129(d) is amended by striking out “paragraphs (2) through (6)” and inserting in lieu thereof “paragraphs (2) through (7)”.Pub. L. 97–448 § 101(e)(1)(A) · 96 Stat. 2365
Redesignated · 26 U.S.C. § 129(d)(2)
Pub. L. 97–448, § 101(e)(1)(A), added par. (2). Former par. (2) redesignated (3)
Source evidence
Code amendment note
Subsec. (d)(2). Pub. L. 97–448, § 101(e)(1)(A), added par. (2). Former par. (2) redesignated (3).Enacted provision · exact public law section
(A) 26 USC 129. Subsection (d) of section 129 (defining dependent care assistance program) is amended by redesignating paragraphs (2) through (6) as paragraphs (3) through (7), respec-tively, and by inserting after paragraph (1) the following new paragraph: “(2) Discrimination.— The contributions or benefits provided under the plan shall not discriminate in favor of employees who are officers, owners, or highly compensated, or their dependents.”Pub. L. 97–448 § 101(e)(1)(A) · 96 Stat. 2365
Redesignated · 26 U.S.C. § 129(d)(3)
Pub. L. 97–448, § 101(e)(1)(A), (B), redesignated former par. (2) as (3)
Redesignated · 26 U.S.C. § 129(d)(3)
Pub. L. 97–448, § 101(e)(1)(A), (B), substituted “employees described in paragraph (2), or their dependents” for “employees who are officers, owners, or highly compensated, or their dependents”. Former par. (3) redesignated (4)
Source evidence
Code amendment note
Subsec. (d)(3). Pub. L. 97–448, § 101(e)(1)(A), (B), redesignated former par. (2) as (3) and substituted “employees described in paragraph (2), or their dependents” for “employees who are officers, owners, or highly compensated, or their dependents”. Former par. (3) redesignated (4).Enacted provision · exact public law section
(A) 26 USC 129. Subsection (d) of section 129 (defining dependent care assistance program) is amended by redesignating paragraphs (2) through (6) as paragraphs (3) through (7), respec-tively, and by inserting after paragraph (1) the following new paragraph: “(2) Discrimination.— The contributions or benefits provided under the plan shall not discriminate in favor of employees who are officers, owners, or highly compensated, or their dependents.”Pub. L. 97–448 § 101(e)(1)(A) · 96 Stat. 2365
Redesignated · 26 U.S.C. § 129(d)(4)(7)
Pub. L. 97–448, § 101(e)(1)(A), redesignated former pars. (3) to (6) as (4) to (7), respectively
Source evidence
Code amendment note
Subsec. (d)(4) to (7). Pub. L. 97–448, § 101(e)(1)(A), redesignated former pars. (3) to (6) as (4) to (7), respectively.Enacted provision · exact public law section
(A) 26 USC 129. Subsection (d) of section 129 (defining dependent care assistance program) is amended by redesignating paragraphs (2) through (6) as paragraphs (3) through (7), respec-tively, and by inserting after paragraph (1) the following new paragraph: “(2) Discrimination.— The contributions or benefits provided under the plan shall not discriminate in favor of employees who are officers, owners, or highly compensated, or their dependents.”Pub. L. 97–448 § 101(e)(2) · 96 Stat. 2365
Substituted · 26 U.S.C. § 129(e)(7)
Pub. L. 97–448, § 101(e)(2), substituted “shall be allowed to the employee under any other section of this chapter for any amount excluded from the gross income of the employee” for “shall be allowed under any other section of this chapter for any amount excluded from income”
Source evidence
Code amendment note
Subsec. (e)(7). Pub. L. 97–448, § 101(e)(2), substituted “shall be allowed to the employee under any other section of this chapter for any amount excluded from the gross income of the employee” for “shall be allowed under any other section of this chapter for any amount excluded from income”.Enacted provision · exact public law section
(2) Clarification of deduction to employer.— Paragraph (7) of section 129(e) (relating to disallowance of excluded amounts as credit or deduction) is amended— (A) by striking out “shall be allowed” and inserting in lieu thereof “shall be allowed to the employee”, and (B) by striking out “excluded from income” and inserting in lieu thereof “excluded from the gross income of the employee”.Tax Reform Act of 1984
Pub. L. 98–369 § 474(r)(6)(A) · 98 Stat. 494
Substituted · 26 U.S.C. § 129(b)(2)
Pub. L. 98–369, § 474(r)(6)(A), substituted “section 21(d)(2)” for “section 44A(e)(2)”
Source evidence
Code amendment note
Subsec. (b)(2). Pub. L. 98–369, § 474(r)(6)(A), substituted “section 21(d)(2)” for “section 44A(e)(2)”.Enacted provision · exact public law section
(A) Paragraph (2) of section 129(b) (relating to earned 26 USC 129. income limitation) is amended by striking out “section 44A(e)(2)” and inserting in lieu thereof “section 21(d)(2)”.Tax Reform Act of 1984
Pub. L. 98–369 § 474(r)(6)(B) · 98 Stat. 494
Substituted · 26 U.S.C. § 129(e)(1)
Pub. L. 98–369, § 474(r)(6)(B), substituted “section 21(b)(2)” for “section 44A(c)(2)”
Source evidence
Code amendment note
Subsec. (e)(1). Pub. L. 98–369, § 474(r)(6)(B), substituted “section 21(b)(2)” for “section 44A(c)(2)”.Enacted provision · exact public law section
(B) Paragraph (1) of section 129(e) (defining dependent care assistance) is amended by striking out ‘section 44A(c)(2)” and inserting in lieu thereof “section 21(b)(2)”.Tax Reform Act of 1984
Pub. L. 98–369 § 474(r)(6)(C) · 98 Stat. 494
Substituted · 26 U.S.C. § 129(e)(2)
Pub. L. 98–369, § 474(r)(6)(C), substituted “section 32(c)(2)” for “section 43(c)(2)”
Source evidence
Code amendment note
Subsec. (e)(2). Pub. L. 98–369, § 474(r)(6)(C), substituted “section 32(c)(2)” for “section 43(c)(2)”.Enacted provision · exact public law section
(C) Paragraph (2) of section 129(e) (defining earned income) is amended by striking out “section 43(c)(2)” and inserting in lieu thereof “section 32(c)(2)”.Tax Reform Act of 1986
Pub. L. 99–514 § 1163(a) · 100 Stat. 2085
Substituted · 26 U.S.C. § 129(a)
Pub. L. 99–514, § 1163(a), substituted “Exclusion” for “In general” in heading
Amended · 26 U.S.C. § 129(a)
Pub. L. 99–514, § 1163(a), amended text generally. Prior to amendment, text read as follows: “Gross income of an employee does not include amounts paid or incurred by the employer for dependent care assistance provided to such employee if the assistance is furnished pursuant to a program which is described in subsection (d).”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 99–514, § 1163(a), substituted “Exclusion” for “In general” in heading and amended text generally. Prior to amendment, text read as follows: “Gross income of an employee does not include amounts paid or incurred by the employer for dependent care assistance provided to such employee if the assistance is furnished pursuant to a program which is described in subsection (d).”Enacted provision · exact public law section
(a) General Rule.— Subsection (a) of section 129 (relating to dependent care assistance programs) is amended to read as follows: “(a) Exclusion.— “(1) In general.— Gross income of an employee does not include amounts paid or incurred by the employer for dependent care assistance provided to such employee if the assistance is furnished pursuant to a program which is described in subsection (d). “(2) Limitation of exclusion.— The aggregate amount excluded from the gross income of the taxpayer under this section for any taxable year shall not exceed $5,000 ($2,500 in the case of a separate return by a married individual). For purposes of the preceding sentence, marital status shall be determined under the rules of paragraphs (3) and (4) of section 21(e).”Tax Reform Act of 1986
Pub. L. 99–514 § 104(b)(1)(A) · 100 Stat. 2085
Substituted · 26 U.S.C. § 129(c)(1)
Pub. L. 99–514, § 104(b)(1)(A), substituted “section 151(c)” for “section 151(e)”
Source evidence
Code amendment note
Subsec. (c)(1). Pub. L. 99–514, § 104(b)(1)(A), substituted “section 151(c)” for “section 151(e)”.Enacted provision · exact public law section
(A) Sections 21(b)(1)(A), 21(e)(6)(A), and 129(c)(1) are each amended by striking out “section 151(e)” and inserting in lieu thereof “section 151(c)”.Tax Reform Act of 1986
Pub. L. 99–514 § 104(b)(1)(B) · 100 Stat. 2085
Substituted · 26 U.S.C. § 129(c)(2)
Pub. L. 99–514, § 104(b)(1)(B), substituted “section 151(c)(3)” for “section 151(e)(3)”
Source evidence
Code amendment note
Subsec. (c)(2). Pub. L. 99–514, § 104(b)(1)(B), substituted “section 151(c)(3)” for “section 151(e)(3)”.Enacted provision · exact public law section
(B) Sections 21(e)(6)(B), 32(c)(1)(A)(i), 129(c)(2), and 152(e)(1)(A) are each amended by striking out “section 151(e)(3)” and inserting in lieu thereof “section 151(c)(3)”.Tax Reform Act of 1986
Pub. L. 99–514 § 1151(c)(5)(A) · 100 Stat. 2085
Added · 26 U.S.C. § 129(d)(1)
Pub. L. 99–514, § 1151(c)(5)(A), added par. (1)
Struck · 26 U.S.C. § 129(d)(1)
Pub. L. 99–514, § 1151(c)(5)(A), struck out former par. (1) which read as follows: “For purposes of this section a dependent care assistance program is a separate written plan of an employer for the exclusive benefit of his employees to provide such employees with dependent care assistance which meets the requirements of paragraphs (2) through (7) of this subsection.”
Source evidence
Code amendment note
Subsec. (d)(1). Pub. L. 99–514, § 1151(c)(5)(A), added par. (1) and struck out former par. (1) which read as follows: “For purposes of this section a dependent care assistance program is a separate written plan of an employer for the exclusive benefit of his employees to provide such employees with dependent care assistance which meets the requirements of paragraphs (2) through (7) of this subsection.”Enacted provision · exact public law section
(A) by striking out paragraph (1) and inserting in lieu thereof the following new paragraph: “(1) In general.— For purposes of this section, a dependent care assistance program is a plan of an employer— “(A) under which the employer provides employees with dependent care assistance, and “(B) which meets the requirements of paragraphs (2) through (6) and section 89(k).”, andTax Reform Act of 1986
Pub. L. 99–514 § 1114(b)(4) · 100 Stat. 2085
Substituted · 26 U.S.C. § 129(d)(2)
Pub. L. 99–514, § 1114(b)(4), substituted “highly compensated employees (within the meaning of section 414(q))” for “officers, owners, or highly compensated,”
Source evidence
Code amendment note
Subsec. (d)(2). Pub. L. 99–514, § 1114(b)(4), substituted “highly compensated employees (within the meaning of section 414(q))” for “officers, owners, or highly compensated,”.Enacted provision · exact public law section
(4) Sections 127(b)(2) and 129(d)(2) are each amended by striking out “officers, owners, or highly compensated,” and inserting in lieu thereof “highly compensated employees (within the eaning of section 414(q))”.Tax Reform Act of 1986
Pub. L. 99–514 § 1151(g)(4) · 100 Stat. 2085
Substituted · 26 U.S.C. § 129(d)(3)
Pub. L. 99–514, § 1151(g)(4), substituted “For purposes of this paragraph, there may be excluded from consideration employees who may be excluded from consideration under section 89(h).” for “For purposes of this paragraph, there shall be excluded from consideration employees not included in the program who are included in a unit of employees covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representatives and one or more employers, if there is evidence that dependent care benefits were the subject of good faith bargaining between such employee representatives and such employer or employers.”
Source evidence
Code amendment note
Subsec. (d)(3). Pub. L. 99–514, § 1151(g)(4), substituted “For purposes of this paragraph, there may be excluded from consideration employees who may be excluded from consideration under section 89(h).” for “For purposes of this paragraph, there shall be excluded from consideration employees not included in the program who are included in a unit of employees covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representatives and one or more employers, if there is evidence that dependent care benefits were the subject of good faith bargaining between such employee representatives and such employer or employers.”Enacted provision · exact public law section
“(4) Exclusion of certain employees.— For purposes of this subsection, there may be excluded from consideration employees who may be excluded from consideration under section 89(h).”Tax Reform Act of 1986
Pub. L. 99–514 § 1151(c)(5)(B) · 100 Stat. 2085
Redesignated · 26 U.S.C. § 129(d)(6); 26 U.S.C. § 129(d)(7)
Pub. L. 99–514, § 1151(c)(5)(B), redesignated par. (7) as (6)
Struck · 26 U.S.C. § 129(d)(6); 26 U.S.C. § 129(d)(7)
Pub. L. 99–514, § 1151(c)(5)(B), struck out former par. (6) which read as follows: “Notification of eligible employees.—Reasonable notification of the availability and terms of the program shall be provided to eligible employees.”
Source evidence
Code amendment note
Subsec. (d)(6), (7). Pub. L. 99–514, § 1151(c)(5)(B), redesignated par. (7) as (6) and struck out former par. (6) which read as follows: “Notification of eligible employees.—Reasonable notification of the availability and terms of the program shall be provided to eligible employees.”Enacted provision · exact public law section
(B) by striking out paragraph (6) thereof, and redesignating paragraph (7) as paragraph (6).Tax Reform Act of 1986
Pub. L. 99–514 § 1151(f) · 100 Stat. 2085
Added · 26 U.S.C. § 129(d)(8)
Pub. L. 99–514, § 1151(f), added par. (8)
Source evidence
Code amendment note
Subsec. (d)(8). Pub. L. 99–514, § 1151(f), added par. (8).Enacted provision · exact public law section
(f) Benefits Test for Dependent Care Assistance Programs.— Section 129(d) (relating to dependent care assistance program) is amended by adding at the end thereof the following new paragraph: “(8) Benefits.— “(A) In general.— A plan meets the requirements of this paragraph if the average benefits provided to employees who are not highly compensated employees is at least 55 percent of the average benefits provided to highly compensated employees. “(B) Salary reduction agreements.— For purposes of subparagraph (A), in the case of any benefits provided through a salary reduction agreement, there shall be disregarded any employees whose compensation (within the meaning of section 415(q)(7)) is less than $25,000.”Tax Reform Act of 1986
Pub. L. 99–514 § 1163(b) · 100 Stat. 2085
Added · 26 U.S.C. § 129(e)(8)
Pub. L. 99–514, § 1163(b), added par. (8)
Source evidence
Code amendment note
Subsec. (e)(8). Pub. L. 99–514, § 1163(b), added par. (8).Enacted provision · exact public law section
(b) Treatment of Onsite Facilities.— Subsection (e) of section 129 is amended by adding at the end thereof the following new paragraph: “(8) Treatment of onsite facilities.— In the case of an onsite facility, except to the extent provided in regulations, the amount excluded with respect to any dependent shall be based on— “(A) utilization, and “(B) the value of the services provided.”Family Support Act of 1988
Pub. L. 100–485 title VII § 703(c)(2) · 102 Stat. 2343
Added · 26 U.S.C. § 129(e)(9)
Pub. L. 100–485 added par. (9)
Source evidence
Code amendment note
Subsec. (e)(9). Pub. L. 100–485 added par. (9).Enacted provision · exact public law section
(2) Exclusion.— Subsection (e) of section 129 of such Code is amended by adding at the end thereof the following new paragraph: “(9) Identifying information required with respect to service provider.— No amount paid or incurred by an employer for dependent care assistance provided to an employee shall be excluded from the gross income of such employee unless— “(A) the name, address, and taxpayer identification number of the person performing the services are included on the return to which the exclusion relates, or “(B) if such person is an organization described in section 501(c)(3) and exempt from tax under section 501(a), the name and address of such person are included on the return to which the exclusion relates. In the case of a failure to provide the information required under the preceding sentence, the preceding sentence shall not apply if it is shown that the taxpayer exercised due diligence in attempting to provide the information so required.”Technical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 § 1011B(c)(2)(A) · 102 Stat. 3342
Amended · 26 U.S.C. § 129(a)(2)
Pub. L. 100–647, § 1011B(c)(2)(A), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The aggregate amount excluded from the gross income of the taxpayer under this section for any taxable year shall not exceed $5,000 ($2,500 in the case of a separate return by a married individual).”
Source evidence
Code amendment note
Subsec. (a)(2). Pub. L. 100–647, § 1011B(c)(2)(A), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The aggregate amount excluded from the gross income of the taxpayer under this section for any taxable year shall not exceed $5,000 ($2,500 in the case of a separate return by a married individual).”Enacted provision · exact public law section
(A) Paragraph (2) of section 129(a) of the 1986 Code is amended to read as follows: “(2) Limitation of exclusion.— “(A) In general.— The amount which may be excluded under paragraph (1) for dependent care assistance with respect to dependent care services provided during a tax-able year shall not exceed $5,000 ($2,500 in the case of a separate return by a married individual). “(B) Year of inclusion.— The amount of any excess under subparagraph (A) shall be included in gross income in the taxable year in which the dependent care services were provided (even if payment of dependent care assistance for such services occurs in a subsequent taxable year). “(C) Marital status.— For purposes of this paragraph, marital status shall be determined under the rules of paragraphs (3) and (4) of section 21(e).”Technical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 § 1011B(a)(30) · 102 Stat. 3342
Substituted · 26 U.S.C. § 129(d)(1)(B)
Pub. L. 100–647, § 1011B(a)(30), substituted “(7)” for “(6)”, see Codification note above
Source evidence
Code amendment note
Subsec. (d)(1)(B). Pub. L. 100–647, § 1011B(a)(30), substituted “(7)” for “(6)”, see Codification note above.Enacted provision · exact public law section
(30) Section 129(d)(1)(B) of the 1986 Code is amended by striking out “(6)” and inserting in lieu thereof “(7)”.Technical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 § 1011B(a)(31)(A)(i) · 102 Stat. 3342
Struck · 26 U.S.C. § 129(d)(3)
Pub. L. 100–647, § 1011B(a)(31)(A)(i), struck out at end “For purposes of this paragraph, there may be excluded from consideration employees who may be excluded from consideration under section 89(h).”
Source evidence
Code amendment note
Subsec. (d)(3). Pub. L. 100–647, § 1011B(a)(31)(A)(i), struck out at end “For purposes of this paragraph, there may be excluded from consideration employees who may be excluded from consideration under section 89(h).”Enacted provision · exact public law section
(i) by striking out the last sentence of paragraph (3), andTechnical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 § 1011B(a)(14) · 102 Stat. 3342
Redesignated · 26 U.S.C. § 129(d)(7)
Pub. L. 100–647, § 1011B(a)(14), redesignated par. (8) as (7)
Source evidence
Code amendment note
Subsec. (d)(7). Pub. L. 100–647, § 1011B(a)(14), redesignated par. (8) as (7).Enacted provision · exact public law section
(14) Subsection (d) of section 129 of the 1986 Code is amended by redesignating paragraph (8) as paragraph (7).Technical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 § 1011B(a)(15)(A) · 102 Stat. 3342
Inserted · 26 U.S.C. § 129(d)(7)(A)
Pub. L. 100–647, § 1011B(a)(15)(A), inserted “under all plans of the employer” after second and third reference to “employees”
Source evidence
Code amendment note
Subsec. (d)(7)(A). Pub. L. 100–647, § 1011B(a)(15)(A), inserted “under all plans of the employer” after second and third reference to “employees”.Enacted provision · exact public law section
(A) by inserting “under all plans of the employer” after “employees” the 2nd and 3rd time it appears in subparagraph (A),Technical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 § 3021(a)(14) · 102 Stat. 3342
Struck and inserted · 26 U.S.C. § 129(d)(7)(B)
Pub. L. 100–647, § 3021(a)(14), struck out “(within the meaning of section 414(q)(7))” after “whose compensation” and inserted at end “For purposes of this subparagraph, the term ‘compensation’ has the meaning given such term by section 414(q)(7), except that, under rules prescribed by the Secretary, an employer may elect to determine compensation on any other basis which does not discriminate in favor of highly compensated employees.”
Source evidence
Code amendment note
Subsec. (d)(7)(B). Pub. L. 100–647, § 3021(a)(14), struck out “(within the meaning of section 414(q)(7))” after “whose compensation” and inserted at end “For purposes of this subparagraph, the term ‘compensation’ has the meaning given such term by section 414(q)(7), except that, under rules prescribed by the Secretary, an employer may elect to determine compensation on any other basis which does not discriminate in favor of highly compensated employees.”Enacted provision · exact public law section
(14) Dependent care assistance.— Subparagraph (B) of section 129(d)(7) of the 1986 Code (as redesignated and amended by section 111B of this Act) is amended— (A) by striking out “(within the meaning of section 414(q)(7))”, and (B) by adding at the end thereof the following new sentence: “For purposes of this subparagraph, the term ‘compensation’ has the meaning given such term by section 414(q)(7), except that, under rules prescribed by the Secretary, an employer may elect to determine compensation on any other basis which does not discriminate in favor of highly compensated employees.”.Technical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 § 1011B(a)(15)(B) · 102 Stat. 3342
Substituted · 26 U.S.C. § 129(d)(7)(B)
Pub. L. 100–647, § 1011B(a)(15)(B), (C), substituted “a plan may disregard” for “there shall be disregarded”
Substituted · 26 U.S.C. § 129(d)(7)(B)
Pub. L. 100–647, § 1011B(a)(15)(B), (C), substituted “414(q)(7)” for “415(q)(7)”
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 100–647, § 1011B(a)(15)(B), (C), substituted “a plan may disregard” for “there shall be disregarded” and “414(q)(7)” for “415(q)(7)”.Enacted provision · exact public law section
(B) by striking out “there shall be disregarded” in subparagraph (B) and inserting in lieu thereof “a plan may disregard”, andTechnical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 § 1011B(a)(31)(A)(ii) · 102 Stat. 3342
Redesignated · 26 U.S.C. § 129(d)(8)
Pub. L. 100–647, § 1011B(a)(31)(A)(ii), added par. (8). Former par. (8) redesignated (7)
Source evidence
Code amendment note
Subsec. (d)(8). Pub. L. 100–647, § 1011B(a)(31)(A)(ii), added par. (8). Former par. (8) redesignated (7).Enacted provision · exact public law section
(ii) by inserting at the end thereof the following new paragraph: “(8) Excluded employees.— For purposes of paragraphs (2), (3), and (7), there shall be excluded from consideration employees who are excluded from consideration under section 89(h).”Technical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 § 1011B(a)(18) · 102 Stat. 3342
Inserted · 26 U.S.C. § 129(e)(6)
Pub. L. 100–647, § 1011B(a)(18), inserted “(other than paragraphs (4) and (7) thereof)” after “subsection (d)”
Source evidence
Code amendment note
Subsec. (e)(6). Pub. L. 100–647, § 1011B(a)(18), inserted “(other than paragraphs (4) and (7) thereof)” after “subsection (d)”.Enacted provision · exact public law section
(18) Paragraph (6) of section 129(e) of the 1986 Code is amended by striking out “of subsection (d)” and inserting in lieu thereof “of subsection (d) (other than paragraphs (4) and (7) thereof)”.Technical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 § 1011B(c)(1) · 102 Stat. 3342
Inserted · 26 U.S.C. § 129(e)(8)
Pub. L. 100–647, § 1011B(c)(1), in introductory provisions, inserted “maintained by an employer” after “onsite facility” and “of dependent care assistance provided to an employee” after “the amount”, in subpar. (A)
Inserted · 26 U.S.C. § 129(e)(8)
Pub. L. 100–647, § 1011B(c)(1), in introductory provisions, inserted “of the facility by a dependent of the employee” after “utilization”, and in subpar. (B)
Inserted · 26 U.S.C. § 129(e)(8)
Pub. L. 100–647, § 1011B(c)(1), in introductory provisions, inserted “with respect to such dependent” after “provided”
Source evidence
Code amendment note
Subsec. (e)(8). Pub. L. 100–647, § 1011B(c)(1), in introductory provisions, inserted “maintained by an employer” after “onsite facility” and “of dependent care assistance provided to an employee” after “the amount”, in subpar. (A), inserted “of the facility by a dependent of the employee” after “utilization”, and in subpar. (B), inserted “with respect to such dependent” after “provided”.Enacted provision · exact public law section
(1) Paragraph (8) of section 129(e) of the 1986 Code (relating to treatment of onsite facilities) is amended— (A) by inserting “maintained by an employer” after “onsite facility”, (B) by inserting “of dependent care assistance provided to an employee” after “the amount”, (C) by inserting “of the facility by a dependent of the employee” after “utilization” in subparagraph (A), and (D) by inserting “with respect to such dependent” after “provided” in subparagraph (B).Pub. L. 101–140 § 204(a)(3)(B) · 103 Stat. 830
Substituted · 26 U.S.C. § 129(d)(1)
Pub. L. 101–140, § 204(a)(3)(B), substituted “paragraphs (2) through (8)” for “paragraphs (2) through (7)”
Source evidence
Code amendment note
Subsec. (d)(1). Pub. L. 101–140, § 204(a)(3)(B), substituted “paragraphs (2) through (8)” for “paragraphs (2) through (7)”.Enacted provision · exact public law section
(B) Paragraph (1) of section 129(d) (as in effect on the day before the date of the enactment of the Tax Reform Act of 1986) is amended by striking “paragraphs (2) through (7)” and inserting “paragraphs (2) through (8)”.Pub. L. 101–140 § 204(a)(1) · 103 Stat. 830
Inserted · 26 U.S.C. § 129(d)(1)
Pub. L. 101–140, § 204(a)(1), inserted at end “If any plan would qualify as a dependent care assistance program but for a failure to meet the requirements of this subsection, then, notwithstanding such failure, such plan shall be treated as a dependent care assistance program in the case of employees who are not highly compensated employees.”
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 101–140, § 204(a)(1), inserted at end “If any plan would qualify as a dependent care assistance program but for a failure to meet the requirements of this subsection, then, notwithstanding such failure, such plan shall be treated as a dependent care assistance program in the case of employees who are not highly compensated employees.”Enacted provision · exact public law section
(1) In general.— Paragraph (1) of section 129(d) (as in effect on the day before the date of the enactment of the Tax Reform Act of 1986) is amended by adding at the end thereof the following new sentence: “If any plan would qualify as a dependent care assistance program but for a failure to meet the requirements of this subsection, then, notwithstanding such failure, such plan shall be treated as a dependent care assistance program in the case of employees who are not highly compensated employees.”Pub. L. 101–140 § 203(a)(1) · 103 Stat. 830
Amended · 26 U.S.C. § 129(d)(1)
Pub. L. 101–140, § 203(a)(1), amended par. (1) to read as if the amendments by Pub. L. 99–514, § 1151(c)(5)(A), had not been enacted, see 1986 Amendment note below
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 101–140, § 203(a)(1), amended par. (1) to read as if the amendments by Pub. L. 99–514, § 1151(c)(5)(A), had not been enacted, see 1986 Amendment note below.Enacted provision · exact public law section
(1) Each provision of law amended by subsection (b), (c), (d)(1), or (g) of section 1151 of the Tax Reform Act of 1986 is amended to read as if the amendments made by such subsection had not been enacted.Pub. L. 101–140 § 204(a)(2)(B) · 103 Stat. 830
Struck · 26 U.S.C. § 129(d)(3)
Pub. L. 101–140, § 204(a)(2)(B), struck out at end “For purposes of this paragraph, there may be excluded from consideration employees who may be excluded from consideration under section 89(h).” for “For purposes of this paragraph, there shall be excluded from consideration employees not included in the program who are included in a unit of employees covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representatives and one or more employers, if there is evidence that dependent care benefits were the subject of good faith bargaining between such employee representatives and such employer or employers.”
Source evidence
Code amendment note
Subsec. (d)(3). Pub. L. 101–140, § 204(a)(2)(B), struck out at end “For purposes of this paragraph, there may be excluded from consideration employees who may be excluded from consideration under section 89(h).” for “For purposes of this paragraph, there shall be excluded from consideration employees not included in the program who are included in a unit of employees covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representatives and one or more employers, if there is evidence that dependent care benefits were the subject of good faith bargaining between such employee representatives and such employer or employers.”Enacted provision · exact public law section
(B) Section 129(d)(3) (as in effect on the day before the date of the enactment of the Tax Reform Act of 1986) is amended by striking the last sentence.Pub. L. 101–140 § 203(a)(2) · 103 Stat. 830
Amended · 26 U.S.C. § 129(d)(3)
Pub. L. 101–140, § 203(a)(2), amended par. (3) to read as if amendments by Pub. L. 100–647, § 1011B(a)(31)(A)(i), had not been enacted, see 1988 Amendment note below
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 101–140, § 203(a)(2), amended par. (3) to read as if amendments by Pub. L. 100–647, § 1011B(a)(31)(A)(i), had not been enacted, see 1988 Amendment note below.Enacted provision · exact public law section
(2) Each provision of law amended by paragraph (22), (27), or (31) of section 1011B(a) of the Technical and Miscellaneous 26 USC 3121, 3231, 3306, 3401, 4976, 505, 129, 117, 120, 127, 132; 42 USC 409. Revenue Act of 1988 is amended to read as if the amendments made by such paragraph had not been enacted.Pub. L. 101–140 § 203(a)(1) · 103 Stat. 830
Amended · 26 U.S.C. § 129(d)(3)
Pub. L. 101–140, § 203(a)(1), amended par. (3) to read as if amendments by Pub. L. 99–514, § 1151(g)(4), had not been enacted, see 1986 Amendment note below
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 101–140, § 203(a)(1), amended par. (3) to read as if amendments by Pub. L. 99–514, § 1151(g)(4), had not been enacted, see 1986 Amendment note below.Enacted provision · exact public law section
(1) Each provision of law amended by subsection (b), (c), (d)(1), or (g) of section 1151 of the Tax Reform Act of 1986 is amended to read as if the amendments made by such subsection had not been enacted.Pub. L. 101–140 § 203(a)(1) · 103 Stat. 830
Amended · 26 U.S.C. § 129(d)(6)
Pub. L. 101–140, § 203(a)(1), amended par. (6) to read as if amendments by Pub. L. 99–514, § 1151(c)(5)(B), had not been enacted, see 1986 Amendment note below
Source evidence
Code amendment note
Subsec. (d)(6). Pub. L. 101–140, § 203(a)(1), amended par. (6) to read as if amendments by Pub. L. 99–514, § 1151(c)(5)(B), had not been enacted, see 1986 Amendment note below.Enacted provision · exact public law section
(1) Each provision of law amended by subsection (b), (c), (d)(1), or (g) of section 1151 of the Tax Reform Act of 1986 is amended to read as if the amendments made by such subsection had not been enacted.Pub. L. 101–140 § 204(a)(3)(A) · 103 Stat. 830
Redesignated · 26 U.S.C. § 129(d)(7)
Pub. L. 101–140, § 204(a)(3)(A), redesignated par. (7) as (8)
Source evidence
Code amendment note
Subsec. (d)(7). Pub. L. 101–140, § 204(a)(3)(A), redesignated par. (7) as (8).Enacted provision · exact public law section
(A) Paragraph (7) of section 129(d) (as in effect after the amendment made by paragraph (14) of section 1011B(a) of the Technical and Miscellaneous Revenue Act of 1988) is redesignated as paragraph (8).Pub. L. 101–140 § 203(a)(1) · 103 Stat. 830
Amended · 26 U.S.C. § 129(d)(7)
Pub. L. 101–140, § 203(a)(1), amended par. (7) to read as if amendments by Pub. L. 99–514, § 1151(c)(5)(B), had not been enacted, see 1986 Amendment note below
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 101–140, § 203(a)(1), amended par. (7) to read as if amendments by Pub. L. 99–514, § 1151(c)(5)(B), had not been enacted, see 1986 Amendment note below.Enacted provision · exact public law section
(1) Each provision of law amended by subsection (b), (c), (d)(1), or (g) of section 1151 of the Tax Reform Act of 1986 is amended to read as if the amendments made by such subsection had not been enacted.Pub. L. 101–140 § 204(a)(3)(A) · 103 Stat. 830
Redesignated · 26 U.S.C. § 129(d)(8)
Pub. L. 101–140, § 204(a)(3)(A), redesignated par. (7) as (8)
Source evidence
Code amendment note
Subsec. (d)(8). Pub. L. 101–140, § 204(a)(3)(A), redesignated par. (7) as (8).Enacted provision · exact public law section
(A) Paragraph (7) of section 129(d) (as in effect after the amendment made by paragraph (14) of section 1011B(a) of the Technical and Miscellaneous Revenue Act of 1988) is redesignated as paragraph (8).Pub. L. 101–140 § 203(a)(2) · 103 Stat. 830
Amended · 26 U.S.C. § 129(d)(8)
Pub. L. 101–140, § 203(a)(2), amended par. (8) to read as if amendments by Pub. L. 100–647, § 1011B(a)(31)(A)(ii), had not been enacted, see 1988 Amendment note below
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 101–140, § 203(a)(2), amended par. (8) to read as if amendments by Pub. L. 100–647, § 1011B(a)(31)(A)(ii), had not been enacted, see 1988 Amendment note below.Enacted provision · exact public law section
(2) Each provision of law amended by paragraph (22), (27), or (31) of section 1011B(a) of the Technical and Miscellaneous 26 USC 3121, 3231, 3306, 3401, 4976, 505, 129, 117, 120, 127, 132; 42 USC 409. Revenue Act of 1988 is amended to read as if the amendments made by such paragraph had not been enacted.Pub. L. 101–140 § 204(a)(2)(A) · 103 Stat. 830
Added · 26 U.S.C. § 129(d)(9)
Pub. L. 101–140, § 204(a)(2)(A), added par. (9)
Source evidence
Code amendment note
Subsec. (d)(9). Pub. L. 101–140, § 204(a)(2)(A), added par. (9).Enacted provision · exact public law section
(A) Section 129(d) is amended by adding at the end thereof the following new paragraph: “(9) Excluded employees.— For purposes of paragraphs (3) and (8), there shall be excluded from consideration— “(A) subject to rules similar to the rules of section 410(b)(4), employees who have not attained the age of 21 and completed 1 year of service (as defined in section 410(a)(3)), and “(B) employees not included in a dependent care assistance program who are included in a unit of employees covered by an agreement which the Secretary finds to be a collective bargaining agreement between employee representatives and 1 or more employees, if there is evidence that dependent care benefits were the subject of good faith bargaining between such employee representatives and such employer or employers.”Pub. L. 101–140 § 204(a)(3)(C) · 103 Stat. 830
Substituted · 26 U.S.C. § 129(e)(6)
Pub. L. 101–140, § 204(a)(3)(C), substituted “(8)” for “(7)”
Source evidence
Code amendment note
Subsec. (e)(6). Pub. L. 101–140, § 204(a)(3)(C), substituted “(8)” for “(7)”.Enacted provision · exact public law section
(C) Section 129(e)96) is amended by striking “(7)” and inserting “(8)”.Revenue Reconciliation Act of 1989
Pub. L. 101–239 title VII § 7811(h)(2) · 103 Stat. 2106
Struck · 26 U.S.C. § 129(a)
Pub. L. 101–239 struck out at end “For purposes of the preceding sentence, marital status shall be determined under the rules of paragraphs (3) and (4) of section 21(e).”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 101–239 struck out at end “For purposes of the preceding sentence, marital status shall be determined under the rules of paragraphs (3) and (4) of section 21(e).”Enacted provision · exact public law section
(2) Subsection (a) of section 129 is amended by striking the sentence following paragraph (2)(C) and preceding subsection (b).Small Business Job Protection Act of 1996
Pub. L. 104–188 title I § 1431(c)(1)(B) · 110 Stat. 1755
Substituted · 26 U.S.C. § 129(d)(8)(B)
Pub. L. 104–188 substituted “section 414(q)(4)” for “section 414(q)(7)”
Source evidence
Code amendment note
Subsec. (d)(8)(B). Pub. L. 104–188 substituted “section 414(q)(4)” for “section 414(q)(7)”.Enacted provision · exact public law section
(B) Sections 129(d)(8)(B), 401(a)(5)(D)(ii), 408(k)(2)(C), and 416(i)(1)(D) are each amended by striking “section 414(q)(7)” and inserting “section 414(q)(4)”.Working Families Tax Relief Act of 2004
Pub. L. 108–311 title II § 207(12) · 118 Stat. 1166
Substituted · 26 U.S.C. § 129(c)(2)
Pub. L. 108–311 substituted “152(f)(1)” for “151(c)(3)”
Source evidence
Code amendment note
Subsec. (c)(2). Pub. L. 108–311 substituted “152(f)(1)” for “151(c)(3)”.Enacted provision · exact public law section
(12) Section 129(c)(2) is amended by striking “151(c)(3)” and inserting “152(f)(1)”.American Rescue Plan Act of 2021
Pub. L. 117–2 title IX § 9632(a) · 135 Stat. 4
Added · 26 U.S.C. § 129(a)(2)(D)
Pub. L. 117–2 added subpar. (D)
Source evidence
Code amendment note
Subsec. (a)(2)(D). Pub. L. 117–2 added subpar. (D).Enacted provision · exact public law section
(a) In General.— Section 129(a)(2) of the Internal Revenue Code of 1986 26 USC 129. is amended by adding at the end the following new subparagraph: “(D) Special rule for 2021.— In the case of any taxable year beginning after December 31, 2020, and before January 1, 2022, subparagraph (A) shall be applied by substituting ‘$10,500 (half such dollar amount’ for ‘$5,000 ($2,500’.” .Pub. L. 119–21 title VII § 70404(a) · 139 Stat. 214
Substituted · 26 U.S.C. § 129(a)(2)(A)
Pub. L. 119–21 substituted “$7,500 ($3,750” for “$5,000 ($2,500”
Unresolved: Pub. L. 119–21 was not found in the local Statutes at Large index.
Source evidence
Code amendment note
Subsec. (a)(2)(A). Pub. L. 119–21 substituted “$7,500 ($3,750” for “$5,000 ($2,500”.Effective date note
Pub. L. 119–21, title VII, § 70404(b), July 4, 2025, 139 Stat. 214, provided that: “The amendment made by this section [amending this section] shall apply to taxable years beginning after December 31, 2025.”
53 of 54 references resolved to an enrolled provision · 1 unresolved
Editorial Notes
Codification
Pub. L. 101–140, § 203(a)(1), amended this section to read as if the amendments made by section 1151(c)(5)(A) of Pub. L. 99–514 (amending subsec. (d)(1)) had not been enacted. Subsequent to amendment by Pub. L. 99–514, subsec. (d)(1) was amended by Pub. L. 100–647. See 1988 Amendment note below.
Prior Provisions
A prior section 129 was renumbered section 140 of this title.
Amendments1983–2025 · 9 rounds
2025
Subsec. (a)(2)(A). Pub. L. 119–21 substituted “$7,500 ($3,750” for “$5,000 ($2,500”.
2021
Subsec. (a)(2)(D). Pub. L. 117–2 added subpar. (D).
2004
Subsec. (c)(2). Pub. L. 108–311 substituted “152(f)(1)” for “151(c)(3)”.
1996
Subsec. (d)(8)(B). Pub. L. 104–188 substituted “section 414(q)(4)” for “section 414(q)(7)”.
1989
Subsec. (a). Pub. L. 101–239 struck out at end “For purposes of the preceding sentence, marital status shall be determined under the rules of paragraphs (3) and (4) of section 21(e).”
Subsec. (d)(1). Pub. L. 101–140, § 204(a)(3)(B), substituted “paragraphs (2) through (8)” for “paragraphs (2) through (7)”.
Pub. L. 101–140, § 204(a)(1), inserted at end “If any plan would qualify as a dependent care assistance program but for a failure to meet the requirements of this subsection, then, notwithstanding such failure, such plan shall be treated as a dependent care assistance program in the case of employees who are not highly compensated employees.”
Pub. L. 101–140, § 203(a)(1), amended par. (1) to read as if the amendments by Pub. L. 99–514, § 1151(c)(5)(A), had not been enacted, see 1986 Amendment note below.
Subsec. (d)(3). Pub. L. 101–140, § 204(a)(2)(B), struck out at end “For purposes of this paragraph, there may be excluded from consideration employees who may be excluded from consideration under section 89(h).” for “For purposes of this paragraph, there shall be excluded from consideration employees not included in the program who are included in a unit of employees covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representatives and one or more employers, if there is evidence that dependent care benefits were the subject of good faith bargaining between such employee representatives and such employer or employers.”
Pub. L. 101–140, § 203(a)(2), amended par. (3) to read as if amendments by Pub. L. 100–647, § 1011B(a)(31)(A)(i), had not been enacted, see 1988 Amendment note below.
Pub. L. 101–140, § 203(a)(1), amended par. (3) to read as if amendments by Pub. L. 99–514, § 1151(g)(4), had not been enacted, see 1986 Amendment note below.
Subsec. (d)(6). Pub. L. 101–140, § 203(a)(1), amended par. (6) to read as if amendments by Pub. L. 99–514, § 1151(c)(5)(B), had not been enacted, see 1986 Amendment note below.
Subsec. (d)(7). Pub. L. 101–140, § 204(a)(3)(A), redesignated par. (7) as (8).
Pub. L. 101–140, § 203(a)(1), amended par. (7) to read as if amendments by Pub. L. 99–514, § 1151(c)(5)(B), had not been enacted, see 1986 Amendment note below.
Subsec. (d)(8). Pub. L. 101–140, § 204(a)(3)(A), redesignated par. (7) as (8).
Pub. L. 101–140, § 203(a)(2), amended par. (8) to read as if amendments by Pub. L. 100–647, § 1011B(a)(31)(A)(ii), had not been enacted, see 1988 Amendment note below.
Subsec. (d)(9). Pub. L. 101–140, § 204(a)(2)(A), added par. (9).
Subsec. (e)(6). Pub. L. 101–140, § 204(a)(3)(C), substituted “(8)” for “(7)”.
1988
Subsec. (a)(2). Pub. L. 100–647, § 1011B(c)(2)(A), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The aggregate amount excluded from the gross income of the taxpayer under this section for any taxable year shall not exceed $5,000 ($2,500 in the case of a separate return by a married individual).”
Subsec. (d)(1)(B). Pub. L. 100–647, § 1011B(a)(30), substituted “(7)” for “(6)”, see Codification note above.
Subsec. (d)(3). Pub. L. 100–647, § 1011B(a)(31)(A)(i), struck out at end “For purposes of this paragraph, there may be excluded from consideration employees who may be excluded from consideration under section 89(h).”
Subsec. (d)(7). Pub. L. 100–647, § 1011B(a)(14), redesignated par. (8) as (7).
Subsec. (d)(7)(A). Pub. L. 100–647, § 1011B(a)(15)(A), inserted “under all plans of the employer” after second and third reference to “employees”.
Subsec. (d)(7)(B). Pub. L. 100–647, § 3021(a)(14), struck out “(within the meaning of section 414(q)(7))” after “whose compensation” and inserted at end “For purposes of this subparagraph, the term ‘compensation’ has the meaning given such term by section 414(q)(7), except that, under rules prescribed by the Secretary, an employer may elect to determine compensation on any other basis which does not discriminate in favor of highly compensated employees.”
Pub. L. 100–647, § 1011B(a)(15)(B), (C), substituted “a plan may disregard” for “there shall be disregarded” and “414(q)(7)” for “415(q)(7)”.
Subsec. (d)(8). Pub. L. 100–647, § 1011B(a)(31)(A)(ii), added par. (8). Former par. (8) redesignated (7).
Subsec. (e)(6). Pub. L. 100–647, § 1011B(a)(18), inserted “(other than paragraphs (4) and (7) thereof)” after “subsection (d)”.
Subsec. (e)(8). Pub. L. 100–647, § 1011B(c)(1), in introductory provisions, inserted “maintained by an employer” after “onsite facility” and “of dependent care assistance provided to an employee” after “the amount”, in subpar. (A), inserted “of the facility by a dependent of the employee” after “utilization”, and in subpar. (B), inserted “with respect to such dependent” after “provided”.
Subsec. (e)(9). Pub. L. 100–485 added par. (9).
1986
Subsec. (a). Pub. L. 99–514, § 1163(a), substituted “Exclusion” for “In general” in heading and amended text generally. Prior to amendment, text read as follows: “Gross income of an employee does not include amounts paid or incurred by the employer for dependent care assistance provided to such employee if the assistance is furnished pursuant to a program which is described in subsection (d).”
Subsec. (c)(1). Pub. L. 99–514, § 104(b)(1)(A), substituted “section 151(c)” for “section 151(e)”.
Subsec. (c)(2). Pub. L. 99–514, § 104(b)(1)(B), substituted “section 151(c)(3)” for “section 151(e)(3)”.
Subsec. (d)(1). Pub. L. 99–514, § 1151(c)(5)(A), added par. (1) and struck out former par. (1) which read as follows: “For purposes of this section a dependent care assistance program is a separate written plan of an employer for the exclusive benefit of his employees to provide such employees with dependent care assistance which meets the requirements of paragraphs (2) through (7) of this subsection.”
Subsec. (d)(2). Pub. L. 99–514, § 1114(b)(4), substituted “highly compensated employees (within the meaning of section 414(q))” for “officers, owners, or highly compensated,”.
Subsec. (d)(3). Pub. L. 99–514, § 1151(g)(4), substituted “For purposes of this paragraph, there may be excluded from consideration employees who may be excluded from consideration under section 89(h).” for “For purposes of this paragraph, there shall be excluded from consideration employees not included in the program who are included in a unit of employees covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representatives and one or more employers, if there is evidence that dependent care benefits were the subject of good faith bargaining between such employee representatives and such employer or employers.”
Subsec. (d)(6), (7). Pub. L. 99–514, § 1151(c)(5)(B), redesignated par. (7) as (6) and struck out former par. (6) which read as follows: “Notification of eligible employees.—Reasonable notification of the availability and terms of the program shall be provided to eligible employees.”
Subsec. (d)(8). Pub. L. 99–514, § 1151(f), added par. (8).
Subsec. (e)(8). Pub. L. 99–514, § 1163(b), added par. (8).
1984
Subsec. (b)(2). Pub. L. 98–369, § 474(r)(6)(A), substituted “section 21(d)(2)” for “section 44A(e)(2)”.
Subsec. (e)(1). Pub. L. 98–369, § 474(r)(6)(B), substituted “section 21(b)(2)” for “section 44A(c)(2)”.
Subsec. (e)(2). Pub. L. 98–369, § 474(r)(6)(C), substituted “section 32(c)(2)” for “section 43(c)(2)”.
1983
Subsec. (d)(1). Pub. L. 97–448, § 101(e)(1)(C), substituted “paragraphs (2) through (7)” for “paragraphs (2) through (6)”.
Subsec. (d)(2). Pub. L. 97–448, § 101(e)(1)(A), added par. (2). Former par. (2) redesignated (3).
Subsec. (d)(3). Pub. L. 97–448, § 101(e)(1)(A), (B), redesignated former par. (2) as (3) and substituted “employees described in paragraph (2), or their dependents” for “employees who are officers, owners, or highly compensated, or their dependents”. Former par. (3) redesignated (4).
Subsec. (d)(4) to (7). Pub. L. 97–448, § 101(e)(1)(A), redesignated former pars. (3) to (6) as (4) to (7), respectively.
Subsec. (e)(7). Pub. L. 97–448, § 101(e)(2), substituted “shall be allowed to the employee under any other section of this chapter for any amount excluded from the gross income of the employee” for “shall be allowed under any other section of this chapter for any amount excluded from income”.
Statutory Notes and Related Subsidiaries
Effective Date of 2025 Amendment
Pub. L. 119–21, title VII, § 70404(b), , 139 Stat. 214, provided that: “The amendment made by this section [amending this section] shall apply to taxable years beginning after .”
Effective Date of 2021 Amendment
Pub. L. 117–2, title IX, § 9632(b), , 135 Stat. 160, provided that: “The amendment made by this section [amending this section] shall apply to taxable years beginning after .”
Effective Date of 2004 Amendment
Amendment by Pub. L. 108–311 applicable to taxable years beginning after , see section 208 of Pub. L. 108–311, set out as a note under section 2 of this title.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104–188 applicable to years beginning after , except that in determining whether an employee is a highly compensated employee for years beginning in 1997, such amendment to be treated as having been in effect for years beginning in 1996, see section 1431(d)(1) of Pub. L. 104–188, set out as a note under section 414 of this title.
Effective Date of 1989 Amendment
Amendment by Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100–647, to which such amendment relates, see section 7817 of Pub. L. 101–239, set out as a note under section 1 of this title.
Amendment by section 203(a)(1), (2) of Pub. L. 101–140 effective as if included in section 1151 of Pub. L. 99–514, see section 203(c) of Pub. L. 101–140, set out as a note under section 79 of this title.
Pub. L. 101–140, title II, § 204(a)(3)(D), , 103 Stat. 833, provided that: “Section 129(d)(8) (as redesignated by subparagraph (A)) shall apply to plan years beginning after .”
Pub. L. 101–140, title II, § 204(d)(1), (2), , 103 Stat. 833, provided that:
“(1) The amendments made by subsections (a)(1), (a)(2), and (b)(2) [amending this section and section 414 of this title] shall apply to years beginning after .
“(2) The amendments made by subsection (a)(3) [amending this section] shall apply to plan years beginning after .”
Effective Date of 1988 Amendment
Amendment by section 1011B(a)(14), (15), (18), (30), (31)(A), (c)(1) of Pub. L. 100–647 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under section 1 of this title.
Pub. L. 100–647, title I, § 1011B(c)(2)(C), , 102 Stat. 3489, provided that:
“(i) Except as provided in this subparagraph, the amendments made by this paragraph [amending this section and section 6051 of this title] shall apply to taxable years beginning after .
“(ii) A taxpayer may elect to have the amendment made by subparagraph (A) [amending this section] apply to taxable years beginning in 1987.
“(iii) In the case of a taxpayer not making an election under clause (ii), any dependent care assistance provided in a taxable year beginning in 1987 with respect to which reimbursement was not received in such taxable year shall be treated as provided in the taxpayer’s first taxable year beginning after .”
Pub. L. 100–647, title III, § 3021(d), , 102 Stat. 3634, provided that:
“(1) Subsection (a).—
The amendments made by subsection (a) [amending this section and sections 89, 410, 4976, 6039D, and 6652 of this title] shall take effect as if included in the amendments made by section 1151 of the Tax Reform Act of 1986 [Pub. L. 99–514, see Effective Date note below]; except that the amendment made by subsection (a)(8) [amending section 89 of this title] shall apply to testing years beginning after .
“(2) Subsection (b).—
The amendments made by subsection (b) [amending sections 89 and 414 of this title] shall apply to years beginning after .”
Amendment by Pub. L. 100–485 applicable to taxable years beginning after , see section 703(d) of Pub. L. 100–485, set out as a note under section 21 of this title.
Effective Date of 1986 Amendment
Amendment by section 104(b)(1) of Pub. L. 99–514 applicable to taxable years beginning after , see section 151(a) of Pub. L. 99–514, set out as a note under section 1 of this title.
Amendment by section 1114(b)(4) of Pub. L. 99–514 applicable to years beginning after , see section 1114(c)(2) of Pub. L. 99–514, set out as a note under section 414 of this title.
Amendment by section 1151(c)(5), (f), (g)(4) of Pub. L. 99–514 applicable, with certain qualifications and exceptions, to years beginning after , see section 1151(k) of Pub. L. 99–514, as amended, set out as a note under section 79 of this title.
Pub. L. 99–514, title XI, § 1163(c), , 100 Stat. 2511, provided that: “The amendments made by this section [amending this section] shall apply to taxable years beginning after .”
Effective Date of 1984 Amendment
Amendment by Pub. L. 98–369 applicable to taxable years beginning after , and to carrybacks from such years, see section 475(a) of Pub. L. 98–369, set out as a note under section 21 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–448 effective, except as otherwise provided, as if it had been included in the provision of the Economic Recovery Tax Act of 1981, Pub. L. 97–34, to which such amendment relates, see section 109 of Pub. L. 97–448, set out as a note under section 1 of this title.
Effective Date
Section applicable to taxable years beginning after , see section 124(f) of Pub. L. 97–34, set out as an Effective Date of 1981 Amendment note under section 21 of this title.
Regulations
Secretary of the Treasury or his delegate to issue before , final regulations to carry out amendments made by section 1114 of Pub. L. 99–514, see section 1141 of Pub. L. 99–514, set out as a note under section 401 of this title.
Retroactive Plan Amendments
Pub. L. 117–2, title IX, § 9632(c), , 135 Stat. 160, provided that:
“A plan that otherwise satisfies all applicable requirements of sections 125 and 129 of the Internal Revenue Code of 1986 (including any rules or regulations thereunder) shall not fail to be treated as a cafeteria plan or dependent care assistance program merely because such plan is amended pursuant to a provision under this section and such amendment is retroactive, if—
“(1) such amendment is adopted no later than the last day of the plan year in which the amendment is effective, and
“(2) the plan is operated consistent with the terms of such amendment during the period beginning on the effective date of the amendment and ending on the date the amendment is adopted.”
Nonenforcement of Amendment Made by Section 1151 of Pub. L. 99–514 for Fiscal Year 1990
No monies appropriated by Pub. L. 101–136 to be used to implement or enforce section 1151 of Pub. L. 99–514 or the amendments made by such section, see section 528 of Pub. L. 101–136, set out as a note under section 89 of this title.
Plan Amendments Not Required Until January 1, 1998
For provisions directing that if any amendments made by subtitle D [§§ 1401–1465] of title I of Pub. L. 104–188 require an amendment to any plan or annuity contract, such amendment shall not be required to be made before the first day of the first plan year beginning on or after , see section 1465 of Pub. L. 104–188, set out as a note under section 401 of this title.
Plan Amendments Not Required Until January 1, 1989
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after , see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title.
Credits
1981–2025 · 12 acts
- 1981Added Pub. L. 97–34, title I, § 124(e)(1), , 95 Stat. 198
- 1983amended Pub. L. 97–448, title I, § 101(e), , 96 Stat. 2366
- 1984Pub. L. 98–369, div. A, title IV, § 474(r)(6), , 98 Stat. 839
- 1986Pub. L. 99–514, title I, § 104(b)(1), title XI, §§ 1114(b)(4), 1151(c)(5), (f), (g)(4), 1163(a), (b), , 100 Stat. 2104, 2450, 2503, 2506, 2507, 2510
- 1988Pub. L. 100–485, title VII, § 703(c)(2), , 102 Stat. 2427
- 1988Pub. L. 100–647, title I, § 1011B(a)(14), (15), (18), (30), (31)(A), (c)(1), (2)(A), title III, § 3021(a)(14), , 102 Stat. 3485, 3487–3489, 3631
- 1989Pub. L. 101–140, title II, §§ 203(a)(1), (2), 204(a)(1)–(3)(C), , 103 Stat. 830, 832
- 1989Pub. L. 101–239, title VII, § 7811(h)(2), , 103 Stat. 2409
- 1996Pub. L. 104–188, title I, § 1431(c)(1)(B), , 110 Stat. 1803
- 2004Pub. L. 108–311, title II, § 207(12), , 118 Stat. 1177
- 2021Pub. L. 117–2, title IX, § 9632(a), , 135 Stat. 160
- 2025Pub. L. 119–21, title VII, § 70404(a), , 139 Stat. 214.
Show as published
(Added Pub. L. 97–34, title I, § 124(e)(1), , 95 Stat. 198; amended Pub. L. 97–448, title I, § 101(e), , 96 Stat. 2366; Pub. L. 98–369, div. A, title IV, § 474(r)(6), , 98 Stat. 839; Pub. L. 99–514, title I, § 104(b)(1), title XI, §§ 1114(b)(4), 1151(c)(5), (f), (g)(4), 1163(a), (b), , 100 Stat. 2104, 2450, 2503, 2506, 2507, 2510; Pub. L. 100–485, title VII, § 703(c)(2), , 102 Stat. 2427; Pub. L. 100–647, title I, § 1011B(a)(14), (15), (18), (30), (31)(A), (c)(1), (2)(A), title III, § 3021(a)(14), , 102 Stat. 3485, 3487–3489, 3631; Pub. L. 101–140, title II, §§ 203(a)(1), (2), 204(a)(1)–(3)(C), , 103 Stat. 830, 832; Pub. L. 101–239, title VII, § 7811(h)(2), , 103 Stat. 2409; Pub. L. 104–188, title I, § 1431(c)(1)(B), , 110 Stat. 1803; Pub. L. 108–311, title II, § 207(12), , 118 Stat. 1177; Pub. L. 117–2, title IX, § 9632(a), , 135 Stat. 160; Pub. L. 119–21, title VII, § 70404(a), , 139 Stat. 214.)