Page:United States Statutes at Large Volume 117.djvu/2497

 117 STAT. 2478

PUBLIC LAW 108–173—DEC. 8, 2003 ‘‘(12) the amount contributed to any health savings account (as defined in section 223(d)) of such employee or such employee’s spouse.’’. (4) PENALTY FOR FAILURE OF EMPLOYER TO MAKE COMPARABLE HEALTH SAVINGS ACCOUNT CONTRIBUTIONS.— (A) IN GENERAL.—Chapter 43 of such Code is amended by adding after section 4980F the following new section:

26 USC 4980G.

‘‘SEC. 4980G. FAILURE OF EMPLOYER TO MAKE COMPARABLE HEALTH SAVINGS ACCOUNT CONTRIBUTIONS.

‘‘(a) GENERAL RULE.—In the case of an employer who makes a contribution to the health savings account of any employee during a calendar year, there is hereby imposed a tax on the failure of such employer to meet the requirements of subsection (b) for such calendar year. ‘‘(b) RULES AND REQUIREMENTS.—Rules and requirements similar to the rules and requirements of section 4980E shall apply for purposes of this section. ‘‘(c) REGULATIONS.—The Secretary shall issue regulations to carry out the purposes of this section, including regulations providing special rules for employers who make contributions to Archer MSAs and health savings accounts during the calendar year.’’. (B) CLERICAL AMENDMENT.—The table of sections for chapter 43 of such Code is amended by adding after the item relating to section 4980F the following new item: ‘‘Sec. 4980G. Failure of employer to make comparable health savings account contributions.’’. 26 USC 4973.

VerDate 11-MAY-2000

13:59 Aug 30, 2004

(e) TAX ON EXCESS CONTRIBUTIONS.—Section 4973 of such Code (relating to tax on excess contributions to certain tax-favored accounts and annuities) is amended— (1) by striking ‘‘or’’ at the end of subsection (a)(3), by inserting ‘‘or’’ at the end of subsection (a)(4), and by inserting after subsection (a)(4) the following new paragraph: ‘‘(5) a health savings account (within the meaning of section 223(d)),’’, and (2) by adding at the end the following new subsection: ‘‘(g) EXCESS CONTRIBUTIONS TO HEALTH SAVINGS ACCOUNTS.— For purposes of this section, in the case of health savings accounts (within the meaning of section 223(d)), the term ‘excess contributions’ means the sum of— ‘‘(1) the aggregate amount contributed for the taxable year to the accounts (other than a rollover contribution described in section 220(f)(5) or 223(f)(5)) which is neither excludable from gross income under section 106(d) nor allowable as a deduction under section 223 for such year, and ‘‘(2) the amount determined under this subsection for the preceding taxable year, reduced by the sum of— ‘‘(A) the distributions out of the accounts which were included in gross income under section 223(f)(2), and ‘‘(B) the excess (if any) of— ‘‘(i) the maximum amount allowable as a deduction under section 223(b) (determined without regard to section 106(d)) for the taxable year, over ‘‘(ii) the amount contributed to the accounts for the taxable year.

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