[Federal Register Volume 62, Number 216 (Friday, November 7, 1997)]
[Rules and Regulations]
[Pages 60165-60168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29087]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 8738]
RIN 1545-AV43


Tax Treatment of Cafeteria Plans

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Temporary regulations.

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SUMMARY: This document contains temporary regulations that clarify the 
circumstances under which an employer may permit a cafeteria plan 
participant to revoke an existing election and make a new election 
during a period of coverage. The text of these temporary regulations 
also serves as the text of the proposed regulations set forth in the 
notice of proposed rulemaking on this subject in the proposed rules 
section of this issue of the Federal Register.

DATES: These regulations are effective on December 31, 1998.

FOR FURTHER INFORMATION CONTACT: Sharon Cohen, (202) 622-6080 (not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    This document contains amendments to the Income Tax Regulations (26 
CFR part 1) under section 125. These temporary regulations provide 
guidance relating to the circumstances under which a cafeteria plan 
participant may revoke an existing election and make a new election 
during a period of coverage.

Explanation of Provisions

    A ``cafeteria plan'' under section 125 allows an employee to choose 
between cash and certain nontaxable benefits, such as accident or 
health coverage. Section 125 generally permits the employee to choose 
the nontaxable benefit (rather than the available cash) without the 
employee having to include the available cash in gross income. The 
temporary regulations:
     Permit a cafeteria plan to allow an employee, during a 
plan year, to change his or her health coverage election to conform 
with the new special enrollment rights provided under the Health 
Insurance Portability and Accountability Act of 1996 (HIPAA), and
     Permit a cafeteria plan to allow a change in coverage 
election for a variety of other changes in status.
    These regulations are designed to provide clear, administrable 
guidelines for determining when changes can be made in cafeteria plan 
elections during a plan year.
    These regulations are effective for plan years beginning after 
December 31, 1998. However, taxpayers may rely on the guidance in the 
temporary regulations (or on the existing proposed regulations) for 
prior periods.

Summary

    Section 125 generally provides that an employee in a cafeteria plan 
will not have an amount included in gross income solely because the 
employee may choose among two or more benefits consisting of cash and 
``qualified benefits.'' A qualified benefit generally is any benefit 
that is excludable from gross income because of an express provision of 
the Code, including coverage under an employer-provided accident or 
health plan under sections 105 and 106, group-term life insurance under 
section 79, elective contributions under a qualified cash or deferred 
arrangement within the meaning of section 401(k), dependent care 
assistance under section 129, and adoption assistance under section 
137.\1\ Under Secs. 1.125-1 and 1.125-2 of the existing proposed 
regulations,\2\ an employee is permitted to make an election between 
cash and qualified benefits before the beginning of the period of 
coverage (which generally is the plan year of the cafeteria plan); 
changes in the election during the plan year are permitted only in 
limited circumstances.
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    \1\ The following are not qualified benefits: products 
advertised, marketed, or offered as long-term care insurance; 
medical savings accounts under section 106(b); qualified 
scholarships under section 117; educational assistance programs 
under seciton 127; and fringe benefits under section 132.
    \2\ Published as proposed rules at 49 FR 19321 (May 7, 1984) and 
54 FR 9460 (March 7, 1989), respectively.
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    The temporary regulations clarify the circumstances under which a 
cafeteria plan may permit an employee to change his or her cafeteria 
plan election with respect to accident or health coverage or group-term 
life insurance coverage during the plan year. Proposed regulations are 
also being published that cross-reference these temporary regulations, 
and that replace the change in family status provisions in Q&A-6 of 
proposed Sec. 1.125-2 with respect to accident or health plans and 
group-term life insurance.

HIPAA Special Enrollment Rules

    The temporary regulations conform the cafeteria plan rules to the 
new special enrollment rights provided under HIPAA (which generally 
require group health plans to permit individuals to be enrolled for 
coverage following the loss of other health coverage, or if a person 
becomes the spouse or dependent of an employee through birth, marriage, 
adoption, or placement for adoption).\3\ Under the regulations, if an 
employee has a right to enroll in an employer's group health plan or to 
add coverage for a family member under HIPAA, the employee can make a 
conforming election under the cafeteria plan. This allows required 
contributions for such health coverage to be paid on a pre-tax basis.
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    \3\ See section 9801(f). Similar provisions are set forth in 
section 701(f) of the Employee Retirement Income Security Act of 
1974 (ERISA), and section 2701(f) of the Public Health Service Act. 
Regulations under these provisions are set forth in Treas. Reg. 
Sec. 54.9801-6T; 29 C.F.R. Sec. 2590.701-6; and 45 C.F.R. 
Sec. 146.117.
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Changes in Status

    The temporary regulations include rules for other events, called 
``changes in status,'' under which a cafeteria plan may allow an 
employee to change his or

[[Page 60166]]

her election during the plan year. The events that constitute changes 
in status under the regulations are changes in legal marital status, 
number of dependents, employment status, work schedule, and residence 
or worksite, and cases where the dependent satisfies or ceases to 
satisfy the requirements for unmarried dependents.
    The regulations permit a cafeteria plan to allow a change of 
election during the plan year if a change in status occurs that affects 
eligibility for coverage and the election change corresponds with the 
effect on eligibility. For example, if under the terms of an accident 
or health plan a child of an employee loses eligibility for coverage 
upon graduation from college, the cafeteria plan may allow the employee 
to cease payment for the child's coverage when the child graduates and 
coverage ceases.
    Certain of these changes in status (marriage, birth, adoption, and 
placement for adoption) overlap with the special enrollment events 
under HIPAA. The regulations include examples that clarify the 
relationship between HIPAA's special enrollment rights and these change 
in status rules. In addition, if a change in status occurs that 
entitles an employee or family member to ``COBRA'' continuation 
coverage (or coverage under a similar State program) with respect to 
the employer's plan, the regulations permit payments for the 
continuation coverage to be made on a pre-tax basis under a cafeteria 
plan.

Other Events

    The regulations allow a corresponding cafeteria plan change if a 
plan receives a court order, such as a qualified medical child support 
order under section 609 of ERISA. In addition, if an employee, spouse, 
or dependent becomes entitled to Medicare or Medicaid, a cafeteria plan 
can permit a corresponding election change.

Elective Contributions Under a Qualified Cash or Deferred Arrangement

    The temporary regulations, in provisions similar to those of the 
existing proposed regulations (proposed Sec. 1.125-2(f)), make clear 
that the rules of section 401(k) and (m), rather than the rules in 
these temporary regulations (which apply to other qualified benefits), 
govern changes in elections under a qualified cash or deferred 
arrangement (within the meaning of section 401(k)) or with respect to 
employee after-tax contributions subject to section 401(m).

Scope of Temporary Regulations and Reliance on Proposed Regulations

    The temporary regulations do not address certain provisions 
concerning cafeteria plan election changes that are included in the 
existing proposed regulations. Guidance on these provisions is reserved 
at paragraphs (f)-(i) of the temporary regulations.
    For example, future guidance under the significant cost change 
provision (reserved at paragraph (g) of the temporary regulations), 
rather than the change in status rules, would determine whether an 
employee who switches from full-time to part-time employment and who 
remains eligible under the employer's health plan could make an 
election change if the part-time employee is required to pay 
significantly higher amounts for the coverage. The temporary 
regulations also reserve guidance with respect to provisions set forth 
in the existing proposed regulations that permit an election change in 
the case of a significant change in coverage (which includes a 
significant change in the health coverage of the employee or spouse 
attributable to the spouse's employment).\4\ Other matters not 
addressed in the temporary regulations include the application of the 
cafeteria plan election change rules to qualified benefits other than 
accident or health coverage and group-term life insurance coverage (for 
example, dependent care assistance programs), and special rules 
concerning changes in elections by employees taking leave under the 
Family and Medical Leave Act of 1993 (Pub. L. 103-3).\5\ Pending 
further guidance, taxpayers can continue to rely on the existing 
proposed regulations \6\ concerning these and other matters not 
addressed in the temporary regulations.\7\
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    \4\ See the second-to-last sentence in Q&A-6(c) of proposed 
Sec. 1.125-2.
    \5\ See Sec. 1.125.3, published as a proposed rule at 60 FR 
66229 (December 21, 1995).
    \6\ See also Sec. 1.125-2T, published at 51 FR 4312 (January 29, 
1986), which describes benefits that may be offered under a 
cafeteria plan.
    \7\ See the preambles to proposed Secs. 1.125-1 and 1.125-2 and 
Q&A-8 of proposed Sec. 1.125-3.
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    The temporary regulations are effective for plan years beginning 
after December 31, 1998. Prior to that date, however, taxpayers can 
rely on the guidance provided in the temporary regulations (as well as 
on the guidance provided in the existing proposed regulations that 
relates to matters addressed in the temporary regulations) in order to 
comply with the provisions of section 125.

Special Analyses

    It has been determined that this Treasury Decision is not a 
significant regulatory action as defined in EO 12866. Therefore, a 
regulatory assessment is not required. It also has been determined that 
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) 
does not apply to these regulations, and because the regulation does 
not impose a collection of information on small entities, the 
Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. 
Pursuant to section 7805(f) of the Internal Revenue Code, these 
temporary regulations will be submitted to the Chief Counsel for 
Advocacy of the Small Business Administration for comment on its impact 
on small business.

Drafting Information

    The principal authors of these regulations are Catherine Fuller and 
Sharon Cohen, Office of the Associate Chief Counsel (Employee Benefits 
and Exempt Organizations). However, other personnel from the IRS and 
Treasury Department participated in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority for part 1 continues to read in part as 
follows:

    Authority: 26 U.S.C. 7805 * * *

    Par. 2. Sec. 1.125-4T is added to read as follows:


Sec. 1.125-4T  Permitted election changes (temporary).

    (a) Election changes. A cafeteria plan may permit an employee to 
revoke an election during a period of coverage and to make a new 
election only as provided in paragraphs (b) through (i) of this 
section. See paragraph (j) of this section for special provisions 
relating to qualified cash or deferred arrangements.
    (b) Special enrollment rights. A cafeteria plan may permit an 
employee to revoke an election for accident or health coverage during a 
period of coverage and make a new election that corresponds with the 
special enrollment rights provided in section 9801(f), whether or not 
the change in election is permitted under paragraph (c) of this 
section.

[[Page 60167]]

    (c) Changes in status for accident or health coverage and group-
term life. (1) In general. A cafeteria plan may permit an employee to 
revoke an election for accident or health coverage or group-term life 
insurance coverage during a period of coverage and make a new election 
for the remaining portion of the period if, under the facts and 
circumstances --
    (i) A change in status occurs; and
    (ii) The election change satisfies the consistency requirement in 
paragraph (c)(3) of this section (consistency rule for accident or 
health coverage) or (c)(4) of this section (consistency rule for group-
term life insurance coverage).
    (2) Change in status events. The following events are changes in 
status for purposes of this paragraph (c):
    (i) Legal marital status. Events that change an employee's legal 
marital status, including marriage, death of spouse, divorce, legal 
separation, or annulment;
    (ii) Number of dependents. Events that change an employee's number 
of dependents (as defined in section 152), including birth, adoption, 
placement for adoption (as defined in regulations under section 9801), 
or death of a dependent;
    (iii) Employment status. A termination or commencement of 
employment by the employee, spouse, or dependent;
    (iv) Work schedule. A reduction or increase in hours of employment 
by the employee, spouse, or dependent, including a switch between part-
time and full-time, a strike or lockout, or commencement or return from 
an unpaid leave of absence;
    (v) Dependent satisfies or ceases to satisfy the requirements for 
unmarried dependents. An event that causes an employee's dependent to 
satisfy or cease to satisfy the requirements for coverage due to 
attainment of age, student status, or any similar circumstance as 
provided in the accident or health plan under which the employee 
receives coverage; and
    (vi) Residence or Worksite. A change in the place of residence or 
work of the employee, spouse, or dependent.
    (3) Consistency rule for accident or health coverage. (i) General 
rule. (A) An employee's revocation of a cafeteria plan election during 
a period of coverage and new election for the remaining portion of the 
period (referred to below as an ``election change'') is consistent with 
a change in status if, and only if--
    (1) The change in status results in the employee, spouse, or 
dependent gaining or losing eligibility for accident or health coverage 
under either the cafeteria plan or an accident or health plan of the 
spouse's or dependent's employer; and
    (2) The election change corresponds with that gain or loss of 
coverage.
    (B) A change in status results in an employee, spouse, or dependent 
gaining (or losing) eligibility for coverage under a plan only if the 
individual becomes eligible (or ineligible) to participate in the plan. 
A cafeteria plan may treat an individual as gaining (or losing) 
eligibility for coverage if the individual becomes eligible (or 
ineligible) for a particular benefit package option under a plan (e.g., 
a change in status results in an individual becoming eligible for a 
managed care option or an indemnity option). If, as a result of a 
change in status, the individual gains eligibility for elective 
coverage under a plan of the spouse's or dependent's employer, the 
consistency rule of this paragraph (c)(3)(i) is satisfied only if the 
individual elects the coverage under the spouse's or dependent's 
employer. See the Examples in paragraph (k) of this section for 
illustrations of the consistency rule.
    (ii) Exception for COBRA. Notwithstanding paragraph (c)(3)(i) of 
this section, if the employee, spouse, or dependent becomes eligible 
for continuation coverage under the employer's group health plan as 
provided in section 4980B or any similar State law, the employee may 
elect to increase payments under the employer's cafeteria plan in order 
to pay for the continuation coverage.
    (4) Consistency rule for group-term life insurance coverage. Except 
as provided in this paragraph (c)(4), the provisions of paragraph 
(c)(3)(i) of this section apply to group-term life insurance coverage. 
In the case of marriage, birth, adoption, or placement for adoption, a 
cafeteria plan can allow an election change to increase (but not to 
reduce) the amount of the employee's life insurance coverage. In the 
case of divorce, legal separation, annulment, or death of a spouse or 
dependent, a cafeteria plan may allow an election change to reduce (but 
not to increase) the amount of the employee's life insurance coverage.
    (d) Judgment, decree, or order. This paragraph (d) applies to a 
judgment, decree, or order (``order'') resulting from a divorce, legal 
separation, annulment, or change in legal custody (including a 
qualified medical child support order defined in section 609 of the 
Employee Retirement Income Security Act of 1974) that requires accident 
or health coverage for an employee's child. Notwithstanding the 
provisions of paragraph (c) of this section, a cafeteria plan may--
    (1) Change the employee's election to provide coverage for the 
child if the order requires coverage under the employee's plan; or
    (2) Permit the employee to make an election change to cancel 
coverage for the child if the order requires the former spouse to 
provide coverage.
    (e) Entitlement to Medicare or Medicaid. If an employee, spouse, or 
dependent who is enrolled in an accident or health plan of the employer 
becomes entitled to coverage (i.e., enrolled) under Part A or Part B of 
Title XVIII of the Social Security Act (Medicare) or Title XIX of the 
Social Security Act (Medicaid), other than coverage consisting solely 
of benefits under section 1928 of the Social Security Act (the program 
for distribution of pediatric vaccines), a cafeteria plan may permit 
the employee to make an election change to cancel coverage of that 
employee, spouse or dependent under the accident or health plan.
    (f) Changes in status for other qualified benefits. [Reserved].
    (g) Significant coverage or cost changes. [Reserved].
    (1) Employer's plan. [Reserved].
    (2) Plan of spouse's or dependent's employer. [Reserved].
    (h) Cessation of required contributions. [Reserved].
    (i) Special requirements concerning the Family and Medical Leave 
Act. [Reserved].
    (j) Elective contributions under a qualified cash or deferred 
arrangement. The provisions of this section do not apply with respect 
to elective contributions under a qualified cash or deferred 
arrangement (within the meaning of section 401(k)) or employee 
contributions subject to section 401(m). Thus, a cafeteria plan may 
permit an employee to modify or revoke elections in accordance with 
sections 401(k) and 401(m) and the regulations thereunder.
    (k) Examples. The following examples illustrate the rules of this 
section. In each case involving an accident or health plan, assume that 
the plan is subject to section 9801(f) (providing for special 
enrollment rights under certain group health plans).

    Example 1. (i) Employer M provides health coverage for its 
employees under which employees may elect either employee-only 
coverage or family coverage. M also maintains a calendar year 
cafeteria plan under which qualified benefits, including health 
coverage, are funded through salary reduction. M's employee, A, 
elects employee-only health coverage before the beginning of the 
calendar year. During the year, A adopts

[[Page 60168]]

a child, C. Within 30 days thereafter, A wants to revoke A's 
election for employee-only health coverage and obtain family health 
coverage, as of the date of C's adoption. A satisfies the conditions 
for special enrollment of an employee with a new dependent under 
section 9801(f)(2), so that A may enroll in family coverage under 
M's accident or health plan in order to provide coverage for C, 
effective as of the date of C's adoption.
    (ii) In this Example 1, M's cafeteria plan may permit A to 
change the employee's salary reduction election to family coverage 
for salary not yet currently available. The increased salary 
reduction could reflect the cost of family coverage from the date of 
adoption. (The adoption of C is also a change in status, and the 
election of family coverage is consistent with that change in 
status. Thus, under the change in status provisions of paragraph (c) 
of this section, M's cafeteria plan could permit A to elect family 
coverage prospectively in order to cover C for the remaining portion 
of the coverage period.)
    Example 2. (i) The employer plans and permissible coverage are 
the same as in Example 1. Before the beginning of the calendar year, 
Employee A elects employee-only health coverage under M's cafeteria 
plan. A marries B during the plan year. B's employer, N, offers 
health coverage to N's employees, and, prior to the marriage, B had 
elected employee-only coverage. A wants to revoke the election for 
employee-only coverage, and is considering electing family health 
coverage under M's plan or obtaining family health coverage under 
N's plan.
    (ii) In this Example 2, A's marriage to B is a change in status. 
Two possible election changes by A would be consistent with the 
change in status: to cover A and B by electing family health 
coverage under M's plan, or to cancel coverage under M's plan (with 
B electing family health coverage under N's plan in order to cover A 
and B). Thus, M's cafeteria plan may permit A to make either change 
in election. (M's cafeteria plan could also permit A to change A's 
salary reduction election to reflect the change to family coverage 
under M's group health plan in accordance with paragraph (b) of this 
section because the marriage would also create special enrollment 
rights under section 9801(f), pursuant to which an election of 
family coverage under M's plan would be required to be effective no 
later than the first day of the first calendar month beginning after 
the completed request for enrollment is received by the plan.)
    Example 3. (i) Employee G, a single parent, elects family health 
coverage under a calendar year cafeteria plan maintained by Employer 
O. G and G's 21-year old child, H, are covered under O's health 
plan. During the year, H graduates from college. Under the terms of 
the health plan, dependents over the age of 19 must be full-time 
students to receive coverage. G wants to revoke G's election for 
family health coverage and obtain employee-only coverage under O's 
cafeteria plan.
    (ii) In this Example 3, H's loss of eligibility for coverage 
under the terms of the health plan is a change in status. A 
revocation of G's election for family coverage and new election of 
employee-only coverage is consistent with the change in status. 
Thus, O's cafeteria plan may permit G to elect employee-only 
coverage.
    Example 4. (i) Employee J is married to K and they have one 
child, S. A calendar year cafeteria plan maintained by Employer P 
allows employees to elect no health coverage, employee-only 
coverage, employee-plus-one-dependent coverage, or family coverage. 
Under the plan, before the beginning of the calendar year, J elects 
family health coverage for J, K, and S. J and K divorce during the 
year and, under the terms of P's accident or health plan, K loses 
eligibility for P's health coverage. S does not lose eligibility for 
health coverage under P's plan upon the divorce. J now wants to 
revoke J's election under the cafeteria plan and elect no coverage.
    (ii) In this Example 4, the divorce is a change in status. A 
change in the cafeteria plan election to cancel health coverage for 
K is consistent with that change in status. However, the divorce 
does not affect J's or S's eligibility for health coverage. 
Therefore, an election change to cancel J's or S's health coverage 
is not consistent with the change in status. The cafeteria plan, 
however, may permit J to elect employee-plus-one-dependent health 
coverage.
    Example 5. (i) The facts are the same as Example 4, except that, 
before the beginning of the year, Employee J elected employee-only 
health coverage (rather than family coverage). Pursuant to J s 
divorce agreement with K, P s health plan receives a qualified 
medical child support order (as defined in section 609 of the 
Employee Retirement Income Security Act) during the plan year. The 
order requires P s health plan to cover S.
    (ii) In this Example 5, P's cafeteria plan may change J's 
election from employee-only health coverage to employee-plus-one-
dependent coverage in order to cover S.
    Example 6. (i) Before the beginning of the coverage period, 
Employee L elects to participate in a cafeteria plan maintained by 
L's Employer, Q. However, in order to change the election during the 
coverage period so as to cancel coverage, and by prior understanding 
with Q, L terminates employment and resumes employment one week 
later.
    (ii) In this Example 6, under the facts and circumstances, in 
which a principal purpose of the termination of employment was to 
alter the election and reinstatement of employment was understood at 
the time of termination, L does not have a change in status. 
However, L's termination of employment would constitute a change in 
status, permitting a cancellation of coverage during the period of 
unemployment, if L s original cafeteria plan election was reinstated 
upon resumption of employment (for example, because of a cafeteria 
plan provision requiring an employee who resumes employment within 
30 days, without any other intervening event that would permit a 
change in election, to return to the election in effect prior to 
termination of employment).
    Example 7. (i) Employer R maintains a calendar year cafeteria 
plan under which full-time employees may elect coverage under one of 
three benefit package options provided under an accident or health 
plan: an indemnity option or either of two HMO options for employees 
that work in the respective service areas of the two HMOs. Employee 
T, who works in the service area of HMO #1, elects the HMO #1 
option. During the year, T is transferred to another work location 
which is outside the HMO #1 service area and inside the HMO #2 
service area.
    (ii) In this Example 7, the transfer is a change in status and, 
under the consistency rule, the cafeteria plan may permit T to make 
an election change to either the indemnity option or HMO #2, or to 
cancel accident or health coverage.
    Example 8. (i) A calendar year cafeteria plan maintained by 
Employer S allows employees to elect coverage under an accident or 
health plan providing indemnity coverage and under a flexible 
spending arrangement (FSA). Prior to the beginning of the calendar 
year, Employee U elects employee-only indemnity coverage, and 
coverage under the FSA for up to $600 of reimbursements for the year 
to be funded by salary reduction contributions of $600 during the 
year. U's spouse, V, has employee-only coverage under an accident or 
health plan maintained by V's employer. During the year, V 
terminates employment and loses coverage under that plan. U now 
wants to elect family coverage under S's accident or health plan and 
increase U's FSA election.
    (ii) In this Example 8, V's termination of employment is a 
change in status. The cafeteria plan may permit U to elect family 
coverage under S's accident or health plan, and to increase U's FSA 
coverage.
    Example 9. (i) Employer T provides group-term life insurance 
coverage as described under section 79. Under T's plan, an employee 
may elect life insurance coverage in an amount up to the lesser of 
his or her salary or $50,000. T also maintains a calendar year 
cafeteria plan under which qualified benefits, including the group-
term life insurance coverage, are funded through salary reduction. 
Before the beginning of the calendar year, Employee W elects $10,000 
of life insurance coverage, with W s spouse, X, as the beneficiary. 
During the year, a child is placed for adoption with W and X. W 
wants to increase W's election for life insurance coverage to 
$50,000 (without changing the designation of X as the beneficiary).
    (ii) In this Example 9, the placement of a child for adoption 
with W is a change in status. The increase in coverage is consistent 
with the change in status. Thus, W's cafeteria plan may permit W to 
increase W's life insurance coverage.

    (1) Effective Date. This section is effective for plan years 
beginning after December 31, 1998.

Michael P. Dolan,
Acting Commissioner of Internal Revenue.

    Dated: October 10, 1997.
Donald C. Lubick,
Acting Assistant Secretary of the Treasury.
[FR Doc. 97-29087 Filed 11-6-97; 8:45 am]
BILLING CODE 4830-01-U