Employers may get more flexibility under proposed regulations the IRS issued on August 11, 2026, addressing dependent care assistance programs and employer Trump account contribution programs. The proposed rules implement provisions of Public Law 119-21 (commonly known as the One, Big, Beautiful Bill Act), which created Trump accounts and Trump account contribution programs.
The key takeaways: average-benefits testing may become easier; Trump account contributions remain subject to FICA and FUTA taxes; employers may rely on some employee certifications in administering the porgrams; and written plan, notice, and reporting procedures will matter.
The IRS proposal follows earlier Department of Labor guidance in Technical Release 2026-02. DOL generally concluded that neither Trump accounts nor employer contribution programs are “employee pension benefit plans” covered by Title I of ERISA, which may make some employers more comfortable adopting the programs.
Average-Benefits Testing May Get Easier
Perhaps the most important development relates to the proposed regulations’ guidance with respect to section 129’s nondiscrimination testing. Dependent care assistance programs must satisfy four nondiscrimination rules to qualify for tax benefits under section 129: (1) the contributions and benefits rule, (2) the eligibility rule, (3) the owner concentration rule, and (4) the average benefits rule. Section 128 and the proposed regulations generally apply the same framework to Trump account contribution programs.
The proposed regulations’ main clarification concerns the average benefits rule. Under that rule, average benefits for non-highly compensated employees must be at least 55% of average benefits for highly compensated employees. Historically, many practitioners interpreted the statute as requiring the test to be applied with respect to all of the employer’s employees—even though who elected not to participate. As a result, this test has been difficult for a number of dependent care assistance plans to satisfy. Consequently, many plans limited contributions or retroactively treated them as taxable for highly compensated employees leading to a potentially poor employee experience. Under the proposed regulations, for both dependent care assistance programs and Trump account contribution programs, only employees who actually receive benefits would be included in the test.
The change should often make the test easier to satisfy, making dependent care assistance programs less likely to fail testing. If lower-paid employees disproportionately decline dependent care FSA coverage (or do not participate in Trump account contribution programs), excluding those nonparticipants should improve the average-benefits comparison ratio.
Trump Account Programs Come with Administrative Strings
Section 128 permits employers to contribute to Trump accounts through Trump account contribution programs. Those contributions are excluded from income, and they are exempt from income tax withholding. However, they remain subject to FICA (Social Security and Medicare taxes) and unemployment taxes.
Section 128 contributions may be made only to Trump accounts for an employee or an employee’s dependent. They also must be made during the beneficiary’s “growth period,” which ends before January 1 of the calendar year in which the beneficiary turns 18. Employers may rely on an employee’s written certification or use another reasonable verification method.
Section 128 contributions are capped at $2,500, as adjusted for inflation. The cap applies across all employers of an individual, and excess contributions may create tax issues for the employee. The proposed regulations protect the employer’s program from disqualification if the plan itself prohibits contributions above the applicable limit, but employees with concurrent employment or midyear job changes may need to track contributions across employers. The limit also is not dependent-by-dependent; contributions for multiple dependents count toward the same annual cap.
Employers that establish Trump account contribution programs would need to:
- Maintain a written plan document;
- Provide employee notices;
- Report contributions, including on Form W-2;
- Notify trustees when contributions do—or do not—qualify as section 128 contributions; and
- Permit employees to select the trustee for their Trump account.
Salary-reduction contributions may be made on a pre-tax basis through a cafeteria plan, but only to a dependent’s Trump account—not to the employee’s own account.
The trustee and account-verification rules raise a separate administrative issue. Employers may not limit an employee’s choice of trustee. They must also verify that the recipient account is a valid Trump account using a “method reasonably designed to verify . . . that the contribution is made to a valid Trump account.” Although employers may rely on employee certifications regarding the beneficiary’s identity, date of birth, and eligibility, they may not rely solely on employee certifications to verify that the account itself is valid. Although it is likely that third-party administrators may take on this burden, the requirement may discourage some employers from adopting these programs.
Comments Are Due September 25
Comments are due September 25, 2026, and a public hearing is scheduled for October 15, 2026. Employers considering these programs should begin identifying payroll, notice, reporting, trustee-communication, and plan-document changes.