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ERISA Based Legal QUESTION - Former Employer

Morristown, NJ |

I was enrolled in a company sponsored Dependant Care program in tax year 2012. I switched employers in June 2012. At that point in time, I contributed $2500.00 in my Dependant Care program before switching employers. Unknown to me, I had only 90 days from my separation date (June 2012) to submit qualfiied expenses for reimbursement. I am now being told that they will not allow me to submit qualified expenses due to the expiration of the 90-day period. What can I do to get those monies? Since we are still in the same tax year, can I get those monies post tax?

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Attorney answers 2


you may need to consult with a lawyer on this one --you definitely have to consult your spd (the plan documents for the erisa plan, also known as summary plan description, hence the acronym). There are competing legal considerations because the plan has the right to a use-it-or-lose-it provision but also the law despises a forfeiture and if you don't get your money back then there is an argument of unjust enrichment for the plan. do not sit on this, speak to an erisa lawyer quickly.


I definitely think that an Employment Benefits specialist would be best positioned to help you. However, what you are really asking is a tax question, and a tax attorney like myself could assist you with the matter. There is a Summary Plan Description which sets out all of your rights under the Dependent Care program. You appear to have already found the section on Qualified Expense reimbursement or called HR and been informed of the 90-day limit. Not to worry, you are not out of luck yet.

You may be able to deduct these Dependent Care expenses outside of the Dependent Care plan. These should qualify for the Child and Dependent Care credit. You can elect to take this credit on Form 2441.

You will note, as stated in Publication 503, that there is a cap on the credit of $3,000 if filing single and $6,000 if filing joint.

I hope this helps. If this answer is "helpful" or is the "best answer" please mark the answer accordingly. If you would like to discuss further, please give me a call at 609-957-5145.