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Seyfarth Synopsis: The Department of Labor (DOL) recently issued Technical Release 2026-02, which clarifies that neither Trump Accounts nor employer contributions to Trump Accounts are considered “employee pension benefit plans” under Section 3(2) of ERISA. For additional information about Trump Accounts, please see our prior to blog posts here and here.

What We Already Knew about Employer and Employee Contributions to Trump Accounts

  • Employers may contribute up to $2,500 to Trump Accounts of young employees or children of employees under an Internal Revenue Code Section 128 program (“Section 128 Program”). These contributions are not considered taxable income to the employees or the Trump Account beneficiaries.
  • The $2,500 limit applies on a per employee basis, meaning that if an employee has multiple children with Trump Accounts, the employer’s aggregate contributions to those children’s Trump Accounts may not exceed $2,500.
  • Employers can facilitate pre-tax employee contributions to Trump Accounts for the employee’s dependents (but not the employee) through a Section 125 cafeteria plan.  However, these employee contributions are technically still considered “employer” contributions under a Section 128 Program and would therefore be subject to the same $2,500 limit described above.
  • All Section 128 Program contributions must be made pursuant to a written plan document and the contributions must comply with applicable nondiscrimination testing rules (which are expected to look similar to the nondiscrimination testing rules applicable to Dependent Care Spending Accounts).

The DOL Confirms Trump Accounts Are Not ERISA Plans

Technical Release 2026-02 confirmed that Trump Accounts are generally not considered to be “employee pension benefit plans” under § 3(2) of ERISA, and therefore are not subject to Title I of ERISA. More specifically, the DOL will not consider Trump Accounts to be “employee pension benefits plans” so long as employee participation is voluntary and the employer does not:

  1. Impose conditions on utilization of Trump Account funds beyond those permitted under the Internal Revenue Code.
  2. Make or influence the investment decisions with respect to funds contributed to a Trump Account.
  3. Represent that the Trump Accounts or the Section 128 Program are an employee pension benefit plan or an employee welfare benefit plan established or maintained by the employer.
  4. Receive any payment or compensation in connection with a Trump Account (other than reasonable compensation for administrative services actually rendered in connection with the Section 128 Program).

The foregoing analysis applies regardless of whether contributions are being made to a Trump Account established on behalf of the employee’s dependent or on behalf of a young employee (i.e., under age 18).

Post-Tax Employee Contributions to Trump Accounts

Technical Release 2026-02 also clarified that employers can facilitate post-tax employee contributions to Trump Accounts via a payroll deduction program without creating an ERISA plan so long as they comply with the DOL’s IRA safe harbor regulation at 29 C.F.R. 2510.3-2(d). Please note that because any such employee contributions would be separate from any employer or employee contributions made under a Section 128 Program, the $2,500 employer contribution limit would not apply to any employee contributions made on a post-tax basis.

One of the prongs of the IRA safe harbor regulation specifies that the employer cannot endorse the program. In Technical Release 2026-02, the DOL clarified that an employer could take the following actions without exceeding the endorsement prong of the safe harbor regulation:  

  • Place information about Trump Accounts on the employer intranet.
  • Provide neutral information about the benefits of using payroll deductions to make contributions to Trump Accounts.

Employees and employers were able to begin making contributions to Trump Accounts on July 4, 2026.

Summary

This recent DOL guidance is significant because it confirms that Trump Accounts generally are not “employee pension benefit plans” subject to ERISA. As a result, employers can facilitate Trump Account contributions without triggering ERISA’s fiduciary, reporting, disclosure and claims procedure requirements. Employers should, however, remain within the DOL’s guardrails by avoiding investment influence, additional distribution restrictions or conduct that suggests the arrangement is an employer-sponsored retirement plan. If employee post-tax contributions will be permitted, the employer should avoid endorsement of the program.

We will continue to monitor developments closely and share updates as more guidance emerges. Please reach out to your Seyfarth benefits attorney with any questions.