Sec. 529A ABLE accounts may be set up before the IRS issues guidance

By Sally P. Schreiber, J.D.

The IRS announced on Tuesday that state ABLE programs that are established before the Service issues guidance under Sec. 529A will be deemed to comply with the rules when they are issued.

The Tax Increase Prevention Act of 2014, P.L. 113-295, added Sec. 529A, which permits a state (or agency or instrumentality) to establish and maintain a new type of tax-advantaged savings program, an Achieving a Better Life Experience (ABLE) program. This program allows taxpayers to make contributions to an ABLE account established to meet the qualified disability expenses of the account’s designated beneficiary, who must be a resident of that state and qualify as disabled under Sec. 529A. A state may also choose instead to contract with another state to set up these accounts.

Under the statute, the IRS is required to issue guidance no later than June 19, but a number of states have already introduced legislation to set up programs because ABLE is effective for all of 2015. Accordingly, in Notice 2015-18, the IRS says that states that enact legislation creating an ABLE program, and individuals establishing ABLE accounts, will not fail to receive the benefits of Sec. 529A merely because the state legislation or the account documents do not fully comply with the guidance when it is issued. In addition, the IRS will allow sufficient time after the guidance is issued for the plans to comply with the new rules.

To assist states and taxpayers setting up these accounts, the IRS noted that, while Sec. 529A is in many ways similar to Sec. 529, under which taxpayers can establish educational savings accounts, it anticipates that the Sec. 529A guidance will differ from the Sec. 529 proposed regulations. Specifically, the IRS currently anticipates that the guidance will provide that the owner of an ABLE account is the account’s designated beneficiary. In addition it anticipates that the guidance will provide that, for an ABLE account of a designated beneficiary who is not the person with signature authority over that account, the person with signature authority may neither have nor acquire any beneficial interest in the account and must administer that account for the benefit of the designated beneficiary.   

Sally P. Schreiber is a JofA senior editor.

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