### §8440. Tax treatment of the Thrift Savings Fund

(a) For purposes of the Internal Revenue Code of 1986—

(1) the Thrift Savings Fund shall be treated as a trust described in section 401(a) of such Code which is exempt from taxation under section 501(a) of such Code;

(2) any contribution to, or distribution from, the Thrift Savings Fund shall be treated in the same manner as contributions to or distributions from such a trust; and

(3) subject to section 401(k)(4)(B) of such Code and any dollar limitation on the application of section 402(a)(8) of such Code, contributions to the Thrift Savings Fund shall not be treated as distributed or made available to an employee or Member nor as a contribution made to the Fund by an employee or Member merely because the employee or Member has, under the provisions of this subchapter and section 8351 of this title, an election whether the contribution will be made to the Thrift Savings Fund or received by the employee or Member in cash.

(b) Nondiscrimination requirements.—Notwithstanding any other provision of law, the Thrift Savings Fund is not subject to the nondiscrimination requirements applicable to arrangements described in section 401(k) of title 26, United States Code, or to matching contributions (as described in section 401(m) of title 26, United States Code), so long as it meets the requirements of this section.

(c) Subsection (a) shall not be construed to provide that any amount of the employee's or Member's basic pay which is contributed to the Thrift Savings Fund shall not be included in the term "wages" for the purposes of section 209 of the Social Security Act or section 3121(a) of the Internal Revenue Code of 1986.

(Added Pub. L. 99–335, title I, §101(a), June 6, 1986, 100 Stat. 557; amended Pub. L. 100–202, §101(m) [title VI, §624(b)], Dec. 22, 1987, 101 Stat. 1329–390, 1329–430; Pub. L. 100–647, title I, §1011A(m)(2), Nov. 10, 1988, 102 Stat. 3483; Pub. L. 102–378, §2(69), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 103–353, §5(e)(5), Oct. 13, 1994, 108 Stat. 3174.)

#### **Editorial Notes**

#### References in Text

The Internal Revenue Code of 1986, referred to in subsecs. (a) and (c), is classified generally to Title 26, Internal Revenue Code.

Section 209 of the Social Security Act, referred to in subsec. (c), is classified to section 409 of Title 42, The Public Health and Welfare.

#### Amendments

1994—Subsecs. (a), (c). Pub. L. 103–353 substituted "Internal Revenue Code of 1986" for "Internal Revenue Code of 1954".

1992—Subsec. (a)(3). Pub. L. 102–378 inserted "section 401(k)(4)(B) of such Code and" after "subject to".

1988—Subsec. (a)(3). Pub. L. 100–647, which directed the insertion of ", 401(k)(4)(B) of such Code," after "subsection (b)", could not be executed because of previous amendment by Pub. L. 100–202, §101(m) [title VI, §624(b)(1)] which struck out "subsection (b)". See 1987 Amendment note below.

1987—Subsec. (a)(3). Pub. L. 100–202, §101(m) [title VI, §624(b)(1)], struck out "the provisions of subsection (b) and" after "subject to".

Subsec. (b). Pub. L. 100–202, §101(m) [title VI, §624(b)(2)], added subsec. (b) and struck out former subsec. (b) which consisted of pars. (1) and (2) providing that subsec. (a)(3) not apply to the Thrift Savings Fund unless the Fund meets the antidiscrimination requirements applicable to arrangements described in section 401(k) of title 26 and to matching contributions.

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 1994 Amendment

Amendment by Pub. L. 103–353 effective with respect to reemployments initiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, see section 8 of Pub. L. 103–353, set out as an Effective Date note under section 4301 of Title 38, Veterans' Benefits.

#### Effective Date of 1992 Amendment

Amendment by Pub. L. 102–378 effective Nov. 10, 1988, see section 9(b)(8) of Pub. L. 102–378, set out as a note under section 6303 of this title.

#### Effective Date of 1988 Amendment

Amendment by Pub. L. 100–647 effective as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under section 1 of Title 26, Internal Revenue Code.