Marianna Dyson* and Marc Gerson requested that the Internal Revenue Service (IRS) address the tax treatment of employer-provided wearable fitness devices in the 2016-2017 priority guidance plan. The request asks that this benefit should be treated as an excludable de minimis fringe benefit because its value would be difficult to account for. "In practical terms, the key to excluding the value of a noncash fringe benefit from an employee's income as de minimis is the absence of a substantial compensatory element," the request said. The tax treatment of wearable fitness devices is not addressed in the Affordable Care Act (ACA) though the legislation does support health incentive programs and health-contingent rewards. "The ACA will go through an evolution, and we may get to wellness as a more defined benefit," Dyson said, however in the interim, guidance is necessary to allow employers to make use of these devices.

*Former Miller & Chevalier attorney