Section 529

The term "529 plan" describes a type of tax-advantaged college plan authorized by Section 529 of the Internal Revenue Code. The money you contribute to these plans grows tax-deferred, and when the student (beneficiary) is ready for college, withdrawals for qualified college expenses are exempt from federal income tax.

Even though many 529 plans are marketed and sold by large financial services companies, by federal law, a 529 plan must be sponsored by a state.

There are two types of 529 plans: prepaid plans and savings/investment plans. The savings/investment type, like the Florida 529 Savings Plan, is the one often referred to by financial planners and the media as a "529 plan."

The Florida Prepaid College Plan and the Florida 529 Savings Plan are both 529 plans. They are both sponsored by the State of Florida and are both managed by the Florida Prepaid College Board.

Title 26—Internal Revenue Code
Subtitle A--Income Taxes
Chapter 1 –Normal Taxes and Surtaxes
Subchapter F--Exempt Organizations
Part VIII—Higher Education Savings Entities

Sec. 529. Qualified State tuition programs

(a) General rule

A qualified State tuition program shall be exempt from taxation under this subtitle. Notwithstanding the preceding sentence, such program shall be subject to the taxes imposed by section 511 (relating to imposition of tax on unrelated business income of charitable organizations).

(b) Qualified State tuition program

For purposes of this section--

1) In general

The term "qualified State tuition program" means a program established and maintained by a State or agency or instrumentality thereof-

(A) under which a person--

(i) may purchase tuition credits or certificates on behalf of a designated beneficiary which entitle the beneficiary to the waiver or payment of qualified higher education expenses of the beneficiary, or

(ii) may make contributions to an account which is established for the purpose of meeting the qualified higher education expenses of the designated beneficiary of the account, and

(B) which meets the other requirements of this subsection.

(2) Cash contributions

A program shall not be treated as a qualified State tuition program unless it provides that purchases or contributions may only be made in cash.

(3) Refunds

A program shall not be treated as a qualified State tuition program unless it imposes a more than de minimis penalty on any refund of earnings from the account which are not-

(A) used for qualified higher education expenses of the designated beneficiary,

(B) made on account of the death or disability of the designated beneficiary, or

(C) made on account of a scholarship (or allowance or payment described in section 135(d)(1)(B) or (C)) received by the designated beneficiary to the extent the amount of the refund does not exceed the amount of the scholarship, allowance, or payment.

(4) Separate accounting

A program shall not be treated as a qualified State tuition program unless it provides separate accounting for each designated beneficiary.

(5) No investment direction

A program shall not be treated as a qualified State tuition program unless it provides that any contributor to, or designated beneficiary under, such program may not directly or indirectly direct the investment of any contributions to the program (or any earnings thereon).

(6) No pledging of interest as security

A program shall not be treated as a qualified State tuition program if it allows any interest in the program or any portion thereof to be used as security for a loan.

(7) Prohibition on excess contributions

A program shall not be treated as a qualified State tuition program unless it provides adequate safeguards to prevent contributions on behalf of a designated beneficiary in excess of those necessary to provide for the qualified higher education expenses of the beneficiary.

(c) Tax treatment of designated beneficiaries and contributors

(1) In general

Except as otherwise provided in this subsection, no amount shall be includible in gross income of--

(A) a designated beneficiary under a qualified State tuition program, or

(B) a contributor to such program on behalf of a designated beneficiary, with respect to any distribution or earnings under such program.

(2) Gift tax treatment of contributions

For purposes of chapters 12 and 13--

(A) In general

Any contribution to a qualified tuition program on behalf of any designated beneficiary-

(i) shall be treated as a completed gift to such beneficiary which is not a future interest in property, and

(ii) shall not be treated as a qualified transfer under section 2503(e).

(B) Treatment of excess contributions

If the aggregate amount of contributions described in subparagraph (A) during the calendar year by a donor exceeds the limitation for such year under section 2503(b), such aggregate amount shall, at the election of the donor, be taken into account for purposes of such section ratably over the 5-year period beginning with such calendar year.

(3) Distributions

(A) In general

Any distribution under a qualified State tuition program shall be includible in the gross income of the distributee in the manner as provided under section 72 to the extent not excluded from gross income under any other provision of this chapter.

(B) In-kind distributions

Any benefit furnished to a designated beneficiary under a qualified State tuition program shall be treated as a distribution to the beneficiary.

(C) Change in beneficiaries

(i) Rollovers Subparagraph (A) shall not apply to that portion of any distribution which, within 60 days of such distribution, is transferred to the credit of another designated beneficiary under a qualified State tuition program who is a member of the family of the designated beneficiary with respect to which the distribution was made.

(ii) Change in designated beneficiaries

Any change in the designated beneficiary of an interest in a qualified State tuition program shall not be treated as a distribution for purposes of subparagraph (A) if the new beneficiary is a member of the family of the old beneficiary.

(D) Operating rules

For purposes of applying section 72--

(i) to the extent provided by the Secretary, all qualified State tuition programs of which an individual is a designated beneficiary shall be treated as one program,

(ii) all distributions during a taxable year shall be treated as one distribution, and

(iii) the value of the contract, income on the contract, and investment in the contract shall be computed as of the close of the calendar year in which the taxable year begins.

(4) Estate tax treatment

(A) In general

No amount shall be includible in the gross estate of any individual for purposes of chapter 11 by reason of an interest in a qualified tuition program.

(B) Amounts includible in estate of designated beneficiary in certain cases

Subparagraph (A) shall not apply to amounts distributed on account of the death of a beneficiary.

(C) Amounts includible in estate of donor making excess contributions

In the case of a donor who makes the election described in paragraph (2)(B) and who dies before the close of the 5-year period referred to in such paragraph, notwithstanding subparagraph (A), the gross estate of the donor shall include the portion of such contributions properly allocable to periods after the date of death of the donor.

(5) Other gift tax rules

For purposes of chapters 12 and 13--

(A) Treatment of distributions

Except as provided in subparagraph (B), in no event shall a distribution from a qualified tuition program be treated as a taxable gift.

(B) Treatment of designation of new beneficiary

The taxes imposed by chapters 12 and 13 shall apply to a transfer by reason of a change in the designated beneficiary under the program (or a rollover to the account of a new beneficiary) only if the new beneficiary is a generation below the generation of the old beneficiary (determined in accordance with section 2651).

(d) Reports

Each officer or employee having control of the qualified State tuition program or their designee shall make such reports regarding such program to the Secretary and to designated beneficiaries with respect to contributions, distributions, and such other matters as the Secretary may require. The reports required by this subsection shall be filed at such time and in such manner and furnished to such individuals at such time and in such manner as may be required by the Secretary.

(e) Other definitions and special rules

For purposes of this section--

(1) Designated beneficiary

The term "designated beneficiary" means--

(A) the individual designated at the commencement of participation in the qualified State tuition program as the beneficiary of amounts paid (or to be paid) to the program,

(B) in the case of a change in beneficiaries described in subsection (c)(3)(C), the individual who is the new beneficiary, and

(C) in the case of an interest in a qualified State tuition program purchased by a State or local government (or agency or instrumentality thereof) or an organization described in section 501(c)(3) and exempt from taxation under section 501(a) as part of a scholarship program operated by such government or organization, the individual receiving such interest as a scholarship.

(2) Member of family

The term "member of the family" means, with respect to any designated beneficiary--

(A) the spouse of such beneficiary;

(B) an individual who bears a relationship to such beneficiary which is described in paragraphs (1) through (8) of section 152(a); and

(C) the spouse of any individual described in subparagraph (B).

(3) Qualified higher education expenses

(A) In general

The term "qualified higher education expenses" means tuition, fees, books, supplies, and equipment required for the enrollment or attendance of a designated beneficiary at an eligible educational institution.

(B) Room and board included for students who are at least half-time

(i) In general

In the case of an individual who is an eligible student (as defined in section 25A(b)(3)) for any academic period, such term shall also include reasonable costs for such period (as determined under the qualified State tuition program) incurred by the designated beneficiary for room and board while attending such institution. For purposes of subsection (b)(7), a designated beneficiary shall be treated as meeting the requirements of this clause.

(ii) Limitation

The amount treated as qualified higher education expenses by reason of the preceding sentence shall not exceed the minimum amount (applicable to the student) included for room and board for such period in the cost of attendance (as defined in section 472 of the Higher Education Act of 1965, 20 U.S.C. 1087ll, as in effect on the date of the enactment of this paragraph) for the eligible educational institution for such period.

(4) Application of section 514

An interest in a qualified State tuition program shall not be treated as debt for purposes of section 514.

(5) Eligible educational institution

The term "eligible educational institution" means an institution-

(A) which is described in section 481 of the Higher Education Act of 1965 (20 U.S.C. 1088), as in effect on the date of the enactment of this paragraph, and

(B) which is eligible to participate in a program under title IV of such Act.

(Added Pub. L. 104-188, title I, Sec. 1806(a), Aug. 20, 1996, 110 Stat. 1895; amended Pub. L. 105-34, title II, Sec. 211(a), (b), (d), (e)(2)(A), title XVI, Sec. 1601(h)(1)(A), (B), Aug. 5, 1997, 111 Stat. 810, 812, 1092; Pub. L. 105-206, title VI, Sec. 6004(c)(2), (3), July 22, 1998, 112 Stat. 793; Pub. L. 106-554, Sec. 1(a)(7) [title III, Sec. 319(5)], Dec. 21, 2000, 114 Stat. 2763, 2763A-646.)

References in Text

The date of the enactment of this paragraph, referred to in subsec. (e)(3)(B)(ii), (5), probably means the date of enactment of Pub. L. 105-34, which amended subsec. (e)(3) generally and enacted subsec. (e)(5) and which was approved Aug. 5, 1997.

The Higher Education Act of 1965, referred to in subsec. (e)(5), is Pub. L. 89-329, Nov. 8, 1965, 79 Stat. 1219, as amended. Title IV of the Act is classified generally to subchapter IV (Sec. 1070 et seq.) of chapter 28 of Title 20, Education, and part C (Sec. 2751 et seq.) of subchapter I of chapter 34 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 20 and Tables.

Amendments

2000--Subsec. (e)(3)(B). Pub. L. 106-554 struck out "under guaranteed plans" after "students" in heading. 1998--Subsec. (c)(3)(A). Pub. L. 105-206, Sec. 6004(c)(2), substituted "section 72" for "section 72(b)". Subsec. (e)(2). Pub. L. 105-206, Sec. 6004(c)(3), reenacted heading without change and amended text of par. (2) generally. Prior to amendment, text read as follows: "The term `member of the family' means--

"(A) an individual who bears a relationship to another individual which is a relationship described in paragraphs (1) through (8) of section 152(a), and

"(B) the spouse of any individual described in subparagraph (A)." 1997-

Subsec. (b)(5). Pub. L. 105-34, Sec. 211(b)(4), inserted '`directly or indirectly" after "may not".

Subsec. (c)(2). Pub. L. 105-34, Sec. 211(b)(3)(A)(i), amended heading and text of par. (2) generally. Prior to amendment, text read as follows: "In no event shall a contribution to a qualified State tuition program on behalf of a designated beneficiary be treated as a taxable gift for purposes of chapter 12."

Subsec. (c)(3)(A). Pub. L. 105-34, Sec. 211(d), substituted "section 72(b)" for "section 72".

Subsec. (c)(4). Pub. L. 105-34, Sec. 211(b)(3)(B), amended heading and text of par. (4) generally. Prior to amendment, text read as follows: "The value of any interest in any qualified State tuition program which is attributable to contributions made by an individual to such program on behalf of any designated beneficiary shall be includible in the gross estate of the contributor for purposes of chapter 11."

Subsec. (c)(5). Pub. L. 105-34, Sec. 211(b)(3)(A)(ii), amended heading and text of par. (5) generally. Prior to amendment, text read as follows: "For purposes of section 2503(e), the waiver (or payment to an educational institution) of qualified higher education expenses of a designated beneficiary under a qualified State tuition program shall be treated as a qualified transfer."

Subsec. (d). Pub. L. 105-34, Sec. 211(e)(2)(A), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: "(d) Reporting Requirements.--

"(1) In general.--If there is a distribution to any individual with respect to an interest in a qualified State tuition program during any calendar year, each officer or employee having control of the qualified State tuition program or their designee shall make such reports as the Secretary may require regarding such distribution to the Secretary and to the designated beneficiary or the individual to whom the distribution was made. Any such report shall include such information as the Secretary may prescribe.

"(2) Timing of reports.--Any report required by this subsection--

"(A) shall be filed at such time and in such matter as the Secretary prescribes, and

"(B) shall be furnished to individuals not later than January 31 of the calendar year following the calendar year to which such report relates."

Subsec. (e)(1)(B). Pub. L. 105-34, Sec. 1601(h)(1)(A), substituted `subsection (c)(3)(C)" for "subsection (c)(2)(C)".

Subsec. (e)(1)(C). Pub. L. 105-34, Sec. 1601(h)(1)(B), inserted "(or agency or instrumentality thereof)" after "local government".

Subsec. (e)(2). Pub. L. 105-34, Sec. 211(b)(1), amended heading and text of par. (2) generally. Prior to amendment, text read as follows: "The term `member of the family' has the same meaning given such term as section 2032A(e)(2)."

Subsec. (e)(3). Pub. L. 105-34, Sec. 211(a), amended heading and text of par. (3) generally. Prior to amendment, text read as follows: "The term `qualified higher education expenses' means tuition, fees, books, supplies, and equipment required for the enrollment or attendance of a designated beneficiary at an eligible educational institution (as defined in section 135(c)(3))."

Subsec. (e)(5). Pub. L. 105-34, Sec. 211(b)(2), added par. (5).

Effective Date of 1998 Amendment

Amendment by Pub. L. 105-206 effective, except as otherwise provided, as if included in the provisions of the Taxpayer Relief Act of 1997, Pub. L. 105-34, to which such amendment relates, see section 6024 of Pub. L. 105-206, set out as a note under section 1 of this title.

Effective Date of 1997 Amendment

Section 211(f) of Pub. L. 105-34 provided that:

"(1) In general.--Except as otherwise provided in this subsection, the amendments made by this section [amending this section and sections 135 and 6693 of this title] shall take effect on January 1, 1998.

"(2) Expenses to include room and board.--The amendment made by subsection (a) shall take effect as if included in the amendments made by section 1806 of the Small Business Job Protection Act of 1996 [Pub. L. 104-188].

"(3) Eligible educational institution.--The amendment made by subsection (b)(2) [amending this section] shall apply to distributions after December 31, 1997, with respect to expenses paid after such date (in taxable years ending after such date), for education furnished in academic periods beginning after such date.

"(4) Coordination with education savings bonds.--The amendment made by subsection (c) [amending section 135 of this title] shall apply to taxable years beginning after December 31, 1997.

"(5) Estate and gift tax changes.--

"(A) Gift tax changes.--Paragraphs (2) and (5) of section 529(c) of the Internal Revenue Code of 1986, as amended by this section, shall apply to transfers (including designations of new beneficiaries) made after the date of the enactment of this Act [Aug. 5, 1997].

"(B) Estate tax changes.--Paragraph (4) of such section 529(c) shall apply to estates of decedents dying after June 8, 1997.

"(6) Transition rule for pre-august 20, 1996 contracts.--In the case of any contract issued prior to August 20, 1996, section 529(c)(3)(C) of the Internal Revenue Code of 1986 shall be applied for taxable years ending after August 20, 1996, without regard to the requirement that a distribution be transferred to a member of the family or the requirement that a change in beneficiaries may be made only to a member of the family."

Amendment by section 1601(h)(1)(A), (B) of Pub. L. 105-34 effective as if included in the provisions of the Small Business Job Protection Act of 1996, Pub. L. 104-188, to which it relates, see section 1601(j) of Pub. L. 105-34, set out as a note under section 23 of this title.

Effective Date

Section 1806(c) of Pub. L. 104-188, as amended by Pub. L. 105-34, title XVI, Sec. 1601(h)(1)(C), Aug. 5, 1997, 111 Stat. 1092, provided that:

"(1) In general.--The amendments made by this section [enacting this section and amending section 135 of this title] shall apply to taxable years ending after the date of the enactment of this Act [Aug. 20, 1996].

"(2) Transition rule.--If--

"(A) a State or agency or instrumentality thereof maintains, on the date of the enactment of this Act, a program under which persons may purchase tuition credits or certificates on behalf of, or make contributions for education expenses of, a designated beneficiary, and

"(B) such program meets the requirements of a qualified State tuition program before the later of--

"(i) the date which is 1 year after such date of enactment, or

"(ii) the first day of the first calendar quarter after the close of the first regular session of the State legislature that begins after such date of enactment, then such program (as in effect on August 20, 1996) shall be treated as a qualified State tuition program with respect to contributions (and earnings allocable thereto) pursuant to contracts entered into under such program before the first date on which such program meets such requirements (determined without regard to this paragraph) and the provisions of such program (as so in effect) shall apply in lieu of section 529(b) of the Internal Revenue Code of 1986 with respect to such contributions and earnings.

For purposes of subparagraph (B)(ii), if a State has a 2-year legislative session, each year of such session shall be deemed to be a separate regular session of the State legislature."

Section Referred to in Other Sections -

This section is referred to in sections 72, 135, 530, 6693 of this title.

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