Notice 2005-8 — Notice 2005-8

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Part III - Administrative, Procedural, and Miscellaneous

Health Savings Accounts — Partnership contributions to a partner's Health Savings
Account (HSA); S corporation contributions to a 2-percent shareholder-employee's
HSA.

Notice 2005-8

PURPOSE

This notice provides guidance on a partnership's contributions to a partner's Health
Savings Account (HSA) and an S corporation's contributions to a 2-percent
shareholder-employee's HSA.

BACKGROUND

Section 1201 of the Medicare Prescription Drug, Improvement, and Modernization Act
of 2003, Pub. L. No. 108-173, added section 223 to the Internal Revenue Code to
permit eligible individuals to establish Health Savings Accounts (HSAs) for taxable
years beginning after December 31, 2003. Generally, contributions made to an HSA,
within permissible limits, by or on behalf of a taxpayer who is an eligible individual are
deductible by a taxpayer under section 223(a). The deduction is an adjustment to gross
income (i.e., an above the line deduction) under section 62(a)(19). If an employer
makes a contribution, within permissible limits, to the HSA on behalf of an employee
who is an eligible individual, the contribution is excluded from the employee's gross
income and wages. See
section 106(d). A partnership may also contribute to a
partner's HSA and an S corporation may contribute to the HSA of a 2-percent
shareholder-employee (as defined below). The Questions and Answers below discuss
the tax treatment of HSA contributions made on behalf of such partners and 2-percent
shareholder-employees who are eligible individuals.

QUESTIONS AND ANSWERS

Q-1. What is the tax treatment of a partnership's contributions to a partner's HSA that
are treated as distributions to the partner under section 731?

A-1. Contributions by a partnership to a bona fide partner's HSA are not contributions
by an employer to the HSA of an employee. See
Rev. Rul. 69-184, 1969-1.C.B. 256.
Contributions by a partnership to a partner's HSA that are treated as distributions to the
partner under section 731 are not deductible by the partnership and do not affect the
distributive shares of partnership income and deductions. See Rev. Rul. 91-26, 1991-1
C.B. 184 (analysis of situation 1, last paragraph). The contributions are reported as
distributions of money on Schedule K-1 (Form 1065). These distributions are not
included in the partner's net earnings from self-employment under section 1402(a)
because the distributions under section 731 do not affect a partner's distributive share
of partnership income or loss under section 702(a)(8). The partner, if an eligible

individual as defined in section 223(c)(1), is entitled under sections 223(a) and 62(a)(19)
to deduct the amount of the contributions made to the partner's HSA during the taxable
year as an adjustment to gross income on his or her federal income tax return.

Q-2. What is the tax treatment of a partnership's contributions to a partner's HSA that
are treated as guaranteed payments under section 707(c), are derived from the
partnership's trade or business, and are for services rendered to the partnership?

A-2. Contributions by a partnership to a bona fide partner's HSA are not contributions
by an employer to the HSA of an employee. See
Rev. Rul. 69-184. Contributions by a
partnership to a partner's HSA for services rendered to the partnership that are treated
as guaranteed payments under section 707(c) are deductible by the partnership under
section 162 (if the requirements of that section are satisfied (taking into account the
rules of section 263)) and are includible in the partner's gross income. The
contributions are not excludible from the partner's gross income under section 106(d)
because the contributions are treated as a distributive share of partnership income
under Treas. Reg. § 1.707-1(c) for purposes of all Code sections other than sections
61(a) and 162(a). See Rev. Rul. 91-26. Contributions by a partnership to a partner's
HSA that are treated as guaranteed payments under section 707(c), are reported as
guaranteed payments on Schedule K-1 (Form 1065). Because the contributions are
guaranteed payments that are derived from the partnership's trade or business, and are
for services rendered to the partnership, the contributions are included in the partner's
net earnings from self-employment under section 1402(a) on the partner's Schedule SE
(Form 1040). The partner, if an eligible individual as defined in section 223(c)(1), is
entitled under sections 223(a) and 62(a)(19) to deduct the amount of the contributions
made to the partner's HSA during the taxable year as an adjustment to gross income on
his or her federal income tax return.

The following example illustrates the answers in A-1 and A-2.

Example
. Partnership is a limited partnership with three equal individual partners, A (a
general partner), B (a limited partner), and C (a limited partner). C is to be paid $500
annually for services rendered to Partnership in his capacity as a partner and without
regard to Partnership income (a section 707(c) guaranteed payment). The $500
payment to C is derived from Partnership's trade or business. Partnership has no
employees. A, B, and C are eligible individuals as defined in section 223(c)(1) and
each has an HSA. During Partnership's Year 1 taxable year, Partnership makes the
following contributions: a $300 contribution to each of A's and B's HSAs which are
treated by Partnership as section 731 distributions to A and B; and a $500 contribution
to C's HSA in lieu of paying C the guaranteed payment directly.

Partnership's contributions to A's and B's HSAs are not deductible by Partnership and,
therefore, do not affect Partnership's calculation of its taxable income or loss. See
Rev.
Rul. 91-26. A and B are entitled to an above the line deduction, under sections 223(a)
and 62(a)(19), for the amount of the contributions made to their individual HSAs. The

section 731 distributions to A's and B's individual HSAs are reported as cash
distributions to A and B on A's and B's Schedule K-1 (Form 1065). The distributions to
A's and B's HSAs are not includible in A's and B's net earnings from self employment
under section 1402(a), because distributions under section 731 do not affect a partner's
distributive share of the partnership's income or loss under section 702(a)(8).

Partnership's contribution to C's HSA that is treated as a guaranteed payment under
section 707(c) for services rendered to the partnership is deductible by Partnership
under section 162 (if the requirements of that section are satisfied (taking into account
the rules of section 263)) and is includible in C's gross income. The contribution is not
excludible from C's gross income under section 106(d) because the contribution is
treated as a distributive share of partnership income for purposes of all Code sections
other than sections 61(a) and 162(a), and a guaranteed payment to a partner is not
treated as compensation to an employee. See
Rev. Rul. 91-26. The payment to C's
HSA should be reported as a guaranteed payment on Schedule K-1 (Form 1065).
Because the contribution is a guaranteed payment that is derived from the partnership's
trade or business and is for services rendered to the partnership, the contribution
constitutes net earnings from self-employment to C under section 1402(a) which should
be reported on Schedule SE (Form 1040). C is entitled under sections 223(a) and
62(a)(19) to deduct as an adjustment to gross income the amount of the contribution
made to C's HSA.

Q-3. What is the tax treatment of an S corporation's contributions to the HSA of a 2-
percent shareholder (as defined in section 1372(b)) who is also an employee (2-percent
shareholder-employee) in consideration for services rendered to the S corporation?

A-3. Under section 1372, for purposes of applying the provisions of Subtitle A that
relate to fringe benefits, an S corporation is treated as a partnership, and any 2-percent
shareholder of the S corporation is treated as a partner of such partnership. Therefore,
contributions by an S corporation to an HSA of a 2-percent shareholder-employee in
consideration for services rendered are treated as guaranteed payments under section
707(c). Accordingly, the contributions are deductible by the S corporation under section
162 (if the requirements of that section are satisfied (taking into account the rules of
section 263)) and are includible in the 2-percent shareholder-employee's gross income.
In addition, the 2-percent shareholder-employee is not entitled to exclude the
contribution from gross income under section 106(d). See
Rev. Rul. 91-26.

For employment tax purposes, when contributions are made by an S corporation to an
HSA of a 2-percent shareholder-employee, the 2-percent shareholder-employee is
treated as an employee subject to Federal Insurance Contributions Act (FICA) tax and
not as an individual subject to Self-Employment Contributions Act (SECA) tax. (See

Announcement 92-16, 1992-5 I.R.B. 53, clarifying the FICA (Social Security and
Medicare) tax treatment of accident and health premiums paid by an S corporation on
behalf of a 2-percent shareholder-employee.) However, if the requirements for the
exclusion under section 3121(a)(2)(B) are satisfied, the S corporation's contributions to
an HSA of a 2-percent shareholder-employee are not wages subject to FICA tax, even

though the amounts must be included in wages for income tax withholding purposes on
the 2-percent shareholder-employee's Form W-2, Wage and Tax Statement. The 2-
percent shareholder-employee, if an eligible individual as defined in section 223(c)(1), is
entitled under sections 223(a) and 62(a)(19) to deduct the amount of the contributions
made to the 2-percent shareholder-employee's HSA during the taxable year as an
adjustment to gross income on his or her federal income tax return. See Notice 2004-2,
Q&A 19, 2004-2 I.R.B. 269, for employment tax rules for employer contributions to
HSAs of employees other than 2-percent shareholder-employees.

DRAFTING INFORMATION

The principal authors of this notice are Elizabeth Purcell of the Office of Division
Counsel/Associate Chief Counsel (Tax Exempt and Government Entities) and Pietro E.
Canestrelli of the Office of Associate Chief Counsel (Passthroughs and Special
Industries). For further information regarding HSA issues in this notice, contact Ms.
Purcell on (202) 622-6080. For information regarding partnership or S corporation
issues, contact Mr. Canestrelli on (202) 622-3060 (not toll-free calls).