26 U.S.C. § 45R — Employee health insurance expenses of

Page 301 TITLE 26—INTERNAL REVENUE CODE § 45R 2022—Internal Revenue Notice 2022–38. 2021—Internal Revenue Notice 2021–35. 2020—Internal Revenue Notice 2020–40. 2019—Internal Revenue Notice 2019–31. 2018—Internal Revenue Notice 2018–40. 2017—Internal Revenue Notice 2017–32. 2016—Internal Revenue Notice 2016–53. 2015—Internal Revenue Notice 2015–44. 2014—Internal Revenue Notice 2014–40. 2013—Internal Revenue Notice 2013–34. 2012—Internal Revenue Notice 2012—42. 2011—Internal Revenue Notice 2011–50. 2010—Internal Revenue Notice 2010–75. § 45R. Employee health insurance expenses of small employers (a) General rule For purposes of section 38, in the case of an el- igible small employer, the small employer health insurance credit determined under this section for any taxable year in the credit period is the amount determined under subsection (b). (b) Health insurance credit amount Subject to subsection (c), the amount deter- mined under this subsection with respect to any eligible small employer is equal to 50 percent (35 percent in the case of a tax-exempt eligible small employer) of the lesser of— (1) the aggregate amount of nonelective con- tributions the employer made on behalf of its employees during the taxable year under the arrangement described in subsection (d)(4) for premiums for qualified health plans offered by the employer to its employees through an Ex- change, or (2) the aggregate amount of nonelective con- tributions which the employer would have made during the taxable year under the ar- rangement if each employee taken into ac- count under paragraph (1) had enrolled in a qualified health plan which had a premium equal to the average premium (as determined by the Secretary of Health and Human Serv- ices) for the small group market in the rating area in which the employee enrolls for cov- erage. (c) Phaseout of credit amount based on number of employees and average wages The amount of the credit determined under subsection (b) without regard to this subsection shall be reduced (but not below zero) by the sum of the following amounts: (1) Such amount multiplied by a fraction the numerator of which is the total number of full-time equivalent employees of the em- ployer in excess of 10 and the denominator of which is 15. (2) Such amount multiplied by a fraction the numerator of which is the average annual wages of the employer in excess of the dollar amount in effect under subsection (d)(3)(B) and the denominator of which is such dollar amount. (d) Eligible small employer For purposes of this section— (1) In general The term ‘‘eligible small employer’’ means, with respect to any taxable year, an em- ployer— (A) which has no more than 25 full-time equivalent employees for the taxable year, (B) the average annual wages of which do not exceed an amount equal to twice the dol- lar amount in effect under paragraph (3)(B) for the taxable year, and (C) which has in effect an arrangement de- scribed in paragraph (4). (2) Full-time equivalent employees (A) In general The term ‘‘full-time equivalent employ- ees’’ means a number of employees equal to the number determined by dividing— (i) the total number of hours of service for which wages were paid by the employer to employees during the taxable year, by (ii) 2,080. Such number shall be rounded to the next lowest whole number if not otherwise a whole number. (B) Excess hours not counted If an employee works in excess of 2,080 hours of service during any taxable year, such excess shall not be taken into account under subparagraph (A). (C) Hours of service The Secretary, in consultation with the Secretary of Labor, shall prescribe such reg- ulations, rules, and guidance as may be nec- essary to determine the hours of service of an employee, including rules for the applica- tion of this paragraph to employees who are not compensated on an hourly basis. (3) Average annual wages (A) In general The average annual wages of an eligible small employer for any taxable year is the amount determined by dividing— (i) the aggregate amount of wages which were paid by the employer to employees during the taxable year, by (ii) the number of full-time equivalent employees of the employee determined under paragraph (2) for the taxable year. Such amount shall be rounded to the next lowest multiple of $1,000 if not otherwise such a multiple. (B) Dollar amount For purposes of paragraph (1)(B) and sub- section (c)(2)— (i) 2010, 2011, 2012, and 2013 The dollar amount in effect under this paragraph for taxable years beginning in 2010, 2011, 2012, or 2013 is $25,000. (ii) Subsequent years In the case of a taxable year beginning in a calendar year after 2013, the dollar amount in effect under this paragraph shall be equal to $25,000, multiplied by the cost-of-living adjustment under section 1(f)(3) for the calendar year, determined by substituting ‘‘calendar year 2012’’ for ‘‘cal- endar year 2016’’ in subparagraph (A)(ii) thereof. (4) Contribution arrangement An arrangement is described in this para- graph if it requires an eligible small employer Page 302 TITLE 26—INTERNAL REVENUE CODE § 45R to make a nonelective contribution on behalf of each employee who enrolls in a qualified health plan offered to employees by the em- ployer through an exchange in an amount equal to a uniform percentage (not less than 50 percent) of the premium cost of the qualified health plan. (5) Seasonal worker hours and wages not counted For purposes of this subsection— (A) In general The number of hours of service worked by, and wages paid to, a seasonal worker of an employer shall not be taken into account in determining the full-time equivalent em- ployees and average annual wages of the em- ployer unless the worker works for the em- ployer on more than 120 days during the tax- able year. (B) Definition of seasonal worker The term ‘‘seasonal worker’’ means a worker who performs labor or services on a seasonal basis as defined by the Secretary of Labor, including workers covered by section 500.20(s)(1) of title 29, Code of Federal Regu- lations and retail workers employed exclu- sively during holiday seasons. (e) Other rules and definitions For purposes of this section— (1) Employee (A) Certain employees excluded The term ‘‘employee’’ shall not include— (i) an employee within the meaning of section 401(c)(1), (ii) any 2-percent shareholder (as defined in section 1372(b)) of an eligible small busi- ness which is an S corporation, (iii) any 5-percent owner (as defined in section 416(i)(1)(B)(i)) of an eligible small business, or (iv) any individual who bears any of the relationships described in subparagraphs (A) through (G) of section 152(d)(2) to, or is a dependent described in section 152(d)(2)(H) of, an individual described in clause (i), (ii), or (iii). (B) Leased employees The term ‘‘employee’’ shall include a leased employee within the meaning of sec- tion 414(n). (2) Credit period The term ‘‘credit period’’ means, with re- spect to any eligible small employer, the 2- consecutive-taxable year period beginning with the 1st taxable year in which the em- ployer (or any predecessor) offers 1 or more qualified health plans to its employees through an Exchange. (3) Nonelective contribution The term ‘‘nonelective contribution’’ means an employer contribution other than an em- ployer contribution pursuant to a salary re- duction arrangement. (4) Wages The term ‘‘wages’’ has the meaning given such term by section 3121(a) (determined with- out regard to any dollar limitation contained in such section). (5) Aggregation and other rules made applica- ble (A) Aggregation rules All employers treated as a single employer under subsection (b), (c), (m), or (o) of sec- tion 414 shall be treated as a single employer for purposes of this section. (B) Other rules Rules similar to the rules of subsections (c), (d), and (e) of section 52 shall apply. (f) Credit made available to tax-exempt eligible small employers (1) In general In the case of a tax-exempt eligible small employer, there shall be treated as a credit al- lowable under subpart C (and not allowable under this subpart) the lesser of— (A) the amount of the credit determined under this section with respect to such em- ployer, or (B) the amount of the payroll taxes of the employer during the calendar year in which the taxable year begins. (2) Tax-exempt eligible small employer For purposes of this section, the term ‘‘tax- exempt eligible small employer’’ means an eli- gible small employer which is any organiza- tion described in section 501(c) which is ex- empt from taxation under section 501(a). (3) Payroll taxes For purposes of this subsection— (A) In general The term ‘‘payroll taxes’’ means— (i) amounts required to be withheld from the employees of the tax-exempt eligible small employer under section 3401(a), (ii) amounts required to be withheld from such employees under section 3101(b), and (iii) amounts of the taxes imposed on the tax-exempt eligible small employer under section 3111(b). (B) Special rule A rule similar to the rule of section 24(d)(2)(C) shall apply for purposes of sub- paragraph (A). (g) Application of section for calendar years 2010, 2011, 2012, and 2013 In the case of any taxable year beginning in 2010, 2011, 2012, or 2013, the following modifica- tions to this section shall apply in determining the amount of the credit under subsection (a): (1) No credit period required The credit shall be determined without re- gard to whether the taxable year is in a credit period and for purposes of applying this sec- tion to taxable years beginning after 2013, no credit period shall be treated as beginning with a taxable year beginning before 2014. (2) Amount of credit The amount of the credit determined under subsection (b) shall be determined— Page 303 TITLE 26—INTERNAL REVENUE CODE § 45S (A) by substituting ‘‘35 percent (25 percent in the case of a tax-exempt eligible small employer)’’ for ‘‘50 percent (35 percent in the case of a tax-exempt eligible small em- ployer)’’, (B) by reference to an eligible small em- ployer’s nonelective contributions for pre- miums paid for health insurance coverage (within the meaning of section 9832(b)(1)) of an employee, and (C) by substituting for the average pre- mium determined under subsection (b)(2) the amount the Secretary of Health and Human Services determines is the average premium for the small group market in the State in which the employer is offering health insur- ance coverage (or for such area within the State as is specified by the Secretary). (3) Contribution arrangement An arrangement shall not fail to meet the requirements of subsection (d)(4) solely be- cause it provides for the offering of insurance outside of an Exchange. (h) Insurance definitions Any term used in this section which is also used in the Public Health Service Act or subtitle A of title I of the Patient Protection and Afford- able Care Act shall have the meaning given such term by such Act or subtitle. (i) Regulations The Secretary shall prescribe such regulations as may be necessary to carry out the provisions of this section, including regulations to prevent the avoidance of the 2-year limit on the credit period through the use of successor entities and the avoidance of the limitations under sub- section (c) through the use of multiple entities. (Added and amended Pub. L. 111–148, title I, § 1421(a), title X, § 10105(e)(1), (2), Mar. 23, 2010, 124 Stat. 237, 906; Pub. L. 115–97, title I, § 11002(d)(1)(H), Dec. 22, 2017, 131 Stat. 2060.) INFLATION ADJUSTED ITEMS FOR CERTAIN YEARS For inflation adjustment of certain items in this section, see Revenue Procedures listed in a table under section 1 of this title. Editorial Notes REFERENCES IN TEXT The Public Health Service Act, referred to in subsec. (h), is act July 1, 1944, ch. 373, 58 Stat. 682, which is classified generally to chapter 6A (§ 201 et seq.) of Title 42, The Public Health and Welfare. For complete classi- fication of this Act to the Code, see Short Title note set out under section 201 of Title 42 and Tables. The Patient Protection and Affordable Care Act, re- ferred to in subsec. (h), is Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 119. Subtitle A (§§ 1001 to 1004) of title I of the Act enacted sections 300gg–11 to 300gg–19, 300gg–93, and 300gg–94 of Title 42, The Public Health and Welfare, re- designated sections 300gg–4 to 300gg–7 of Title 42 as sec- tions 300gg–25 to 300gg–28, respectively, of Title 42, and section 300gg–13 of Title 42 as section 300gg–9 of Title 42, amended former sections 300gg–11 and 300gg–12 and sections 300gg–21 to 300gg–23 of Title 42, and enacted provisions set out as a note under section 300gg–11 of Title 42. For complete classification of this Act to the Code, see Short Title note set out under section 18001 of Title 42 and Tables. AMENDMENTS 2017—Subsec. (d)(3)(B)(ii). Pub. L. 115–97 substituted ‘‘for ‘calendar year 2016’ in subparagraph (A)(ii)’’ for ‘‘for ‘calendar year 1992’ in subparagraph (B)’’. 2010—Subsec. (d)(3)(B). Pub. L. 111–148, § 10105(e)(1), amended subpar. (B) generally, including dollar amount for taxable years beginning in 2010 in addition to dollar amounts for taxable years beginning in 2011, 2012, and 2013, and subsequent years. Subsec. (g). Pub. L. 111–148, § 10105(e)(2), substituted ‘‘2010, 2011’’ for ‘‘2011’’ in heading and in introductory provisions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–97 applicable to taxable years beginning after Dec. 31, 2017, see section 11002(e) of Pub. L. 115–97, set out as a note under section 1 of this title. EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111–148, title X, § 10105(e)(5), Mar. 23, 2010, 124 Stat. 907, provided that: ‘‘The amendments made by this subsection [amending this section, section 280C of this title, and provisions set out as a note under sec- tion 38 of this title] shall take effect as if included in the enactment of section 1421 of this Act.’’ EFFECTIVE DATE Section applicable to amounts paid or incurred in taxable years beginning after Dec. 31, 2009, see section 1421(f)(1) of Pub. L. 111–148, set out as an Effective Date of 2010 Amendment note under section 38 of this title. § 45S. Employer credit for paid family and med- ical leave (a) Establishment of credit (1) In general For purposes of section 38, in the case of an eligible employer, the paid family and medical leave credit is an amount equal to the applica- ble percentage of the amount of wages paid to qualifying employees during any period in which such employees are on family and med- ical leave. (2) Applicable percentage For purposes of paragraph (1), the term ‘‘ap- plicable percentage’’ means 12.5 percent in- creased (but not above 25 percent) by 0.25 per- centage points for each percentage point by which the rate of payment (as described under subsection (c)(1)(B)) exceeds 50 percent. (b) Limitation (1) In general The credit allowed under subsection (a) with respect to any employee for any taxable year shall not exceed an amount equal to the prod- uct of the normal hourly wage rate of such employee for each hour (or fraction thereof) of actual services performed for the employer and the number of hours (or fraction thereof) for which family and medical leave is taken. (2) Non-hourly wage rate For purposes of paragraph (1), in the case of any employee who is not paid on an hourly wage rate, the wages of such employee shall be prorated to an hourly wage rate under regula- tions established by the Secretary. (3) Maximum amount of leave subject to credit The amount of family and medical leave that may be taken into account with respect