In a response to Senators Richard Durbin (D-IL) and Barack Obama (D-IL), the Internal Revenue Service, in Information Letter 2009-0012, explains why employees who terminate employment are not entitled to receive any remaining balance in their transit reimbursement accounts.
Employees may voluntarily elect under §132 of the Internal Revenue Code of 1986 (IRC) to contribute a portion of their earnings to transit reimbursement accounts. Employees are technically not purchasing the benefit themselves, since doing so would require them to receive taxable compensation. The legal form of the transaction is that the employees are given a choice between cash compensation and the benefit provided by the employer. Once employees elect to have the benefit provided by their employers, employees are “no longer entitled to receive that compensation.” If the employees could choose to receive cash compensation, the entire value of the fringe benefit and cash compensation received would be taxable. Since employees forfeit their right to receive cash compensation when electing the fringe benefit, unused balances at termination of employment are funds of the employer, not the employee.