group including the employer (or any predecessor of either) established or maintained a dependent care flexible spending plan for substantially the same employees as the employees for whom the dependent care flexible spending plan with respect to which such credit is otherwise allowable is established or maintained. (d) Other definitions For purposes of this section— (1) In general The term qualified startup costs means any ordinary and necessary expenses of an eligible employer which are paid or incurred in connection with— (A) the establishment or administration of a dependent care flexible spending plan, or (B) education of employees with respect to such plan. (2) Plan must have at least 1 participant Such term shall not include any expense in connection with a plan that does not have at least 1 employee eligible to participate who is not a highly compensated employee (as defined in section 414(q)). (3) Dependent care flexible spending plan The term “dependent care flexible spending plan” means so much of any plan of an employer as consists of dependent care flexible spending arrangements. For purposes of the preceding sentence, an arrangement shall be treated as a dependent care flexible spending arrangement only if employer contributions to such arrangement are excludible from the gross income of an employee under section 129. (4) First credit year The term “first credit year” means, with respect to any qualified startup costs— (A) the taxable year which includes the date that the dependent care flexible spending plan to which such costs relate becomes effective, or (B) at the election of the eligible employer, the taxable year preceding the taxable year referred to in subparagraph (A). (e) Special rules Rules similar to the rules of section 45E(e) shall apply for purposes of this section. . (b) Credit To be part of general business credit Section 38(b) of such Code is amended by striking plus at the end of paragraph (40), by striking the period at the end of paragraph (41) and inserting , plus , and by