Passing the test: IRS proposed rules address Trump account contribution programs and nondiscrimination testing
August 18, 2026
Passing the test: IRS proposed rules address Trump account contribution programs and nondiscrimination testingAugust 18, 2026 On August 11, 2026, the Department of the Treasury and the Internal Revenue Service (IRS) published a notice of proposed rulemaking (NPRM) with proposed regulations on Trump account employer contribution programs (TACPs) and parallel nondiscrimination rules for dependent care assistance programs (DCAPs). The One, Big, Beautiful Bill Act (OBBBA) added section 530A to the Internal Revenue Code of 1986, as amended (Code) to create Trump accounts, which became effective as of July 4, 2026. One form of Trump account contribution under the OBBBA is employer contributions under Code Section 128, which can be either employer-funded contributions or pre-tax salary deferrals through a cafeteria plan. Employer contributions must be made pursuant to a written TACP document that satisfies certain requirements regarding eligibility, notification, reporting, and nondiscrimination testing requirements similar to DCAP nondiscrimination testing requirements. The IRS and Treasury had never previously provided regulations or other guidance regarding DCAP nondiscrimination testing, leaving employers to rely on minimal language in Code Section 129. While some guidance on Trump accounts was provided earlier this year (see our prior legal alert “Recent Trump accounts guidance: Implications for employers and beyond”), employers looking to implement TACPs had many open questions. Designing TACPs The NPRM provides the following notable guidance on TACPs:
Nondiscrimination Testing Guidance TACPs must meet requirements similar to the DCAP nondiscrimination rules under Code Section 129. The NPRM includes parallel regulations under Code Section 128 and Code Section 129, the first time the IRS has provided guidance on DCAP nondiscrimination testing. TACPs must satisfy the following nondiscrimination tests:
Code Section 6434 provides for a one-time government contribution to the Trump accounts of eligible children born after December 31, 2024, and before January 1, 2029. If employers make a one-time matching contribution of these government contributions (Pilot Program Match), the Pilot Program Match will be excluded from the contributions and benefits test and the average benefits percentage test of nondiscrimination testing (but not the eligibility test). The proposed DCAP regulations under Code Section 129 generally track the TACP nondiscrimination rules, except that they also address the owner concentration test, which is unique to DCAPs. This test requires that no more than 25% of amounts paid or incurred by the employer for dependent care assistance during the year be provided to shareholders/owners who own more than 5% of the employer. Employers may rely on these proposed regulations before final regulations are issued. The NPRM highlights the complexities of these programs, and employers will need to carefully coordinate program design with payroll, cafeteria plan administration, and trustee processes. __________ If you have any questions about this Legal Briefing, please feel free to contact any of the attorneys listed or the Eversheds Sutherland attorney with whom you regularly work. Latest Insights
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