March 19, 2021

Contribution Limit for Dependent Care Assistance Programs Temporarily Increased

Earlier this month, the American Rescue Plan Act of 2021 (“ARPA”) became the latest COVID relief package passed by the federal government. ARPA, just like the many COVID relief packages that came before it, contains a number of changes that benefits professionals will want to become familiar with.

Only for 2021, ARPA allows employers to amend their dependent care assistance programs (“DCAPs”) to allow employees to contribute up to $10,500 for the tax year (or $5,250 for individuals married and filing separately). This is undoubtedly welcome relief to parents and caregivers who are likely to be returning to work in 2021 and unable to care for kids who may have not yet returned to school or other family members who continue to stay at home and need assistance. This change allows employees to pay for more of those increased dependent care costs with pre-tax dollars.

Employers generally maintain DCAPs as part of their cafeteria plans, which allow employees to contribute pre-tax dollars to a variety of qualified benefits. These contributions, in turn, reduce the employee’s taxable income. While employees are typically locked into their elections for the entire year, employees may be able to prospectively increase their DCAP election under previous IRS guidance released last month if the plan is so amended.

Prior to the ARPA change, the maximum amount that an employee could contribute to a DCAP and exclude from his or her gross income was $5,000 per tax year (or $2,500 for individuals married and filing separately).

A cafeteria plan that adopts these changes will be deemed to comply with the Code §§ 125 and 129 rules governing cafeteria plans and DCAPs. Employers may implement this change operationally now, but plans must be retroactively amended no later than the last day of the plan year in which the amendment is effective, and the plan must be operated consistent with the terms of the amendment on its effective date and ending on the date the amendment is adopted.

Lake Moore is an ERISA and employee benefits attorney who actively advises companies (large and small, public and private), administrators, accountants, tribal governments, and other lawyers on the compliance, administration, correction, and innovative design of a multitude of employee benefit plans.

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