I've searched through the IRC and Regs as best as I can, but can't find anything conclusive on a C Corp contributing pre-tax money to the HSA of an owner who isn't on the payroll, but is an office and director (no Nonemployee comp paid).
The rules for an Archer MSA (IRC § 220(b)(4)(A) limits the deduction allowed to the amount of employee which is ?attributable to such individual?s employment by the employer.?) are clear, but I can't find comparable wording for an HSA.
Is anybody familiar enough with the rules to point me in the right direction?
Thanks for the help. Now I'm stumped on the payroll treatment. It appears that a Form W-2 will have to be issued for any employer contribution to the HSA, but is it subject to Social Security and Medicare tax withholding? If that's the case, the company will have to gross up for them. Am I right?
Health savings account (HSA). An employer?s contribution (including an employee?s contributions through a cafeteria plan) to an employee?s HSA is not subject to federal income tax withholding or social security, Medicare, or railroad retirement taxes (or FUTA tax) if it is reasonable to believe at the time of the payment that the contribution will be excludable from the employee?s income. However, if it is not reasonable to believe at the time of payment that the contribution will be excludable from the employee?s income, employer contributions are subject to federal income tax withholding, social security and Medicare taxes (or railroad retirement taxes, if applicable), and FUTA tax and must be reported in boxes 1, 3, and 5 (use box 14 if railroad retirement taxes apply), and on Form 940, Employer?s Annual Federal Unemployment (FUTA) Tax Return.
You must report all employer contributions (including an employee?s contributions through a cafeteria plan) to an HSA in box 12 of Form W-2 with code W. Employer contributions to an HSA that are not excludable from the income of the employee also must be reported in boxes 1, 3, and
(Use box 14 if railroad retirement taxes apply.)
An employee?s contributions to an HSA (unless made through a cafeteria plan) are includible in income as wages and are subject to federal income tax withholding and social security and Medicare taxes (or railroad retirement taxes, if applicable). Employee contributions are deductible, within limits, on the employee?s Form 1040. For more information about HSAs, see Notice 2004-2, Notice 2004-50, and Notice
2008-52. Notice 2004-2, 2004-2 I.R.B. 269, is available at www. irs.gov/irb/2004-02_IRB/ar09.html. Notice 2004-50, 2004-33 I.R.B. 196, is available at
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Notice 2008-52,
2008-25 I.R.B. 1166, is available at
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html. Also see Form 8889, Health Savings Accounts (HSAs), and Pub. 969.
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