The SECURE Act of 2019

On December 20, 2019, President Trump signed into law the Setting Every Community Up for Retirement Enhancement Act of 2019 (the SECURE Act) as part of a compromise bill to avoid a potential government shutdown. The SECURE Act contains many changes to retirement savings accounts in general. Although IRS guidelines have not yet been established, plan sponsors may take advantage of some of the changes in 2020. Following is a summary of new rules that current and potential 401(k) plan sponsors need to know:

  • For Existing Plans

    • Safe Harbor Plans Have New Flexibility – The IRS requires that 401(k) plans conduct and pass compliance testing to ensure a plan does not discriminate against Non-Highly Compensated Employees. However, a plan sponsor can satisfy the testing requirements by implementing a Safe Harbor 401(k) Plan. Under the SECURE act, the following Safe Harbor plan designs have been given more flexibility:
        • Safe Harbor Nonelective (“SHNEC”): With this design, a plan sponsor can satisfy discrimination testing by making an employer contribution of at least 3% of compensation to all eligible employees. Under prior law, a sponsor can adopt a SHNEC 401(k) plan provided a notice was distributed to plan participants 30 days before the beginning of the plan year.  The SECURE Act eliminates the notice requirement in general and permits a plan sponsor to decide to have a nonelective safe harbor plan mid-year, provided they decide prior to 30 days before the end of the plan year. They may decide even later than that, potentially after the end of the plan year, provided they make a safe harbor contribution of at least 4% of compensation.  The notice requirement remains the same for plans that use the Safe Harbor Match design.
        • Safe Harbor Qualified Automatic Contribution Arrangement: Under this plan design, an eligible employee is automatically enrolled in the plan with a pre-set deferral deduction that automatically escalates the employee’s contributions each year. The cap on the automatic escalation will increase from 10% to 15%.
    • Part-Time Employees Must Be Covered in All 401(k) Plans – Currently, plans may exclude employees who don’t complete at least 1,000 hours of service in a 12-month eligibility computation period. This allowed a plan sponsor to exclude a part-time employee from the plan, if they worked less than 1,000 hours in a year. In 2021, the SECURE Act, will require that part-time employees who complete more than 500 hours of service in three consecutive eligibility years be permitted to contribute to 401(k) plans. They will not be required to receive employer contributions and will be excluded from non-discrimination testing but must be given the opportunity to contribute.
    • For Plans that have participant loans – Effective immediately, 401(k) plans are not permitted to make plan loans available by credit card. Existing programs using this form of payment must be discontinued.
    • Mandatory Distribution Date – Under current law, an owner or related employee, or any terminated participant must begin taking minimum distributions by April 1st after turning age 70 ½, or face penalties of a 50% excise tax. The SECURE Act increases that age to age 72. This applies to individuals attaining age 70 ½ after December 31, 2019. This means that if you turn 70 in 2019 but were born on or before June 30, 1949, the age is still 70 ½, and you must take a distribution by April 1, 2020. However, anyone born July 1, 1949 or later can wait until April 1, 2023 before taking their first distribution.
  • For Employers Considering Adopting a Plan

    • Higher Tax Credits May Be Available – The tax credit for small employers who start new retirement plans increases from $500 per year to as much as $5,000 per year for three years. There is also a new $500/year tax credit for up to three years for small employers that adopt new plans that include automatic enrollment. Small employers are considered those that had no more than 100 employees who earned at least $5,000 in the preceding year.
    • More Time to Adopt – Under current law, qualified plans must be adopted by the last day of the year for employers to make deductible contributions for that year. For Tax Years beginning in 2020, qualified plans can be adopted after the end of the tax year and up until the tax return due date. This will provide much needed flexibility to employers considering qualified plans but will not permit employees to make retroactive 401(k) contributions.
    • New Options under Multiple Employer Plans – The SECURE Act will make open multiple employer plans, called Pooled Employer Plans, or PEPs, available as an option beginning in 2021. These will be professionally managed plans that permit unrelated employers to participate.  Adopting employers will be relieved of much (but not all) of their fiduciary responsibilities. PEPs are a major step towards increasing small employer plan coverage, and they will be the subject of a separate upcoming post.

There are several other sections, including a tenfold increase in penalties for failure to file Form 5500 and certain other returns timely and easing the in-service distribution rules for the birth or adoption of a child that we will discuss in greater detail in future articles. For now, contact your EJReynolds’ Plan Consultant with any specific questions as to how the SECURE Act may affect your plan.

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Important 401(k) Testing Deadlines to Remember!

Since most 401(k) plans have a calendar year plan year end, now is the best time to review testing deadlines for the upcoming Plan Year. In general, 401(k) plans must be tested annually to demonstrate that they do not discriminate in favor of highly compensated employees or provide benefits that exceed certain statutory or regulatory limits. If a plan “fails” any of the required tests, the plan sponsor must take corrective actions, and there are established deadlines for correcting certain failures.

The following is a brief summary of these deadlines:

  • March 15th – Deadline for issuing corrective distributions to correct ADP/ACP testing failures. Of course, this does not apply to Safe Harbor 401(k) plans, as those automatically satisfy the ADP/ACP testing.

In general, corrective distributions must be issued within 2 ½ months following the close of the plan year to avoid a 10% excise tax imposed on the excess amounts. Plan sponsors of 401(k) plans that include an automatic enrollment feature that satisfies certain requirements have up to 6 months to issue corrective distributions without incurring the excise tax.

In either situation, correct distributions must be issued no later than the last day of the plan year following the plan year in which the testing failure occurred to protect the qualified status of the plan.

  • April 15th – Due date for issuing corrective distributions for excess deferrals (i.e. participant deferrals made in excess of 402(g) limit – $19,000 for 2019; $19,500 for 2020). If the excess amount, plus related earnings, is not distributed by this date, the participant is in effect taxed on the excess amount twice, both in the year the excess occurred and the year of the distribution. (Note: This deadline is the same, regardless of plan year).
  • June 30th – Extended due date for issuing corrective distributions for ADP/ACP testing failures under “eligible automatic contribution arrangement” 401(k) plans; the 10% excise tax applies to distributions made after this date.
  • October 15th – Deadline for adopting a retroactive plan amendment to correct a coverage or nondiscrimination testing failure (if applicable). The amendment must be adopted no later than 9 ½ months following the close of the plan year in which the failure occurred, as provided for under specific applicable regulations.
  • December 31st – Final deadline for issuing corrective distributions for ADP/ACP testing failures for the prior year (or for making a Qualified Non-Elective Contribution/Qualified Matching Contribution to correct the failure).

The deadlines 401(k) plan sponsors must observe are numerous and complex; the deadlines listed above are not meant to be comprehensive, but rather, represent critical dates related to the correction of specific plan testing failures.

Please contact our Plan Consultants to learn more about how these rules impact your plan and participants!

Hardship Distribution Rules Relaxed – New Rules!

The Bipartisan Budget Act of 2018 liberalized the rules applicable for hardship distributions in 401(k) plans. These changes impact the “safe harbor” hardship distribution rules (the ones most commonly used in plans) and will generally become effective for plan years beginning after December 31, 2018.

To assist plan sponsors with implementing these changes, the IRS issued proposed regulations in November 2018, and after months of public comment, issued final regulations on September 23, 2019.

What changed?

In general, the new rules make it easier for participants to qualify for hardship distributions, expand the sources available for such distributions, and remove the 6-month deferral suspension period following a hardship distribution. They also make it easier on plan sponsors by simplifying the substantiation process.

What qualifies for a hardship distribution under the new rules?

Under the existing rules, hardship distributions may only be made from a participant’s 401(k) and/or Roth account for the following:

  1. Unreimbursed, tax-deductible medical expenses (without regard to the deduction limitation);
  2. Certain costs associated with the purchase of a participant’s principal residence;
  3. Post-secondary educational expenses for a participant, his or her spouse, children or dependents (for the next 12 months);
  4. Funeral expenses for a participant’s spouse, parents, children or dependents;
  5. Expenses necessary to repair damage to a participant’s principal residence incurred as a result of a casualty (tax-deductible loss); and
  6. Amounts necessary to prevent foreclosure or eviction from a participant’s principal residence.

Under the new rules, the conditions under which a participant can obtain a hardship distribution have been expanded to include the following:

  1. Expenses incurred as a result of a natural disaster in a federally-declared disaster area; and
  2. Medical, post-secondary educational, and funeral expenses for a participant’s primary beneficiary.

Additionally, the proposed regulations clarify that if a participant’s principal residence is damaged as a result of a casualty, such as a fire or windstorm, it is not necessary for the participant’s home to be in a federally-declared disaster area. When the income tax law changed, it impacted the hardship distribution rules since the 401(k) regulations (current) require the casualty loss be tax-deductible.

What contribution types are available for hardship distributions?

Under the existing rules, hardship distributions can only be made from a participant’s 401(k) and/or Roth account, excluding any related earnings. In other words, a participant can only withdraw his or her contributions.

Under the new rules, the amount available for hardship distributions will include related earnings. In addition, Plan Sponsors may allow participants to take hardship distributions from safe harbor account balances as well as QNEC or QMAC account balances, if provided for under the terms of the plan document.

Note: Some plans permit hardship distributions that fell outside of the definition of “Safe Harbor” hardship distributions, which allowed distributions from other sources, such as profit sharing or matching account balances. These contribution sources are not “restricted” from taking in-service distributions prior to attainment of age 59 ½ (like 401(k), Roth, safe harbor, QNEC and QMAC account balances), so these distribution rules have not changed; it is still permissible to allow for hardship distributions from these accounts, if provided for under the terms of the plan document. 

How much can a participant receive as a hardship distribution?

The amount cannot exceed the lesser of (1) a participant’s financial need (grossed up for applicable income taxes), or (2) his or her available account balance. This rule has not changed, although the amount available has been expanded to include related earnings and additional contribution sources.

What substantiation is required for hardship distributions?

The proposed regulations provide new standards for determining whether a hardship distribution is deemed necessary to meet a participant’s financial need.

  • The participant must have obtained all other available in-service distributions under any plans maintained by the employer; and
  • The participant must represent that he or she does not have enough liquid assets to satisfy the financial need.

Currently, a participant is generally required to take a loan from the plan (if available) prior to receiving a hardship distribution, and the determination of whether a hardship distribution is deemed necessary to meet an “immediate and heavy” financial need is based on all relevant facts and circumstances.

The new standards remove the plan loan requirement and simplify the process for plan sponsors as they can rely on the participant’s representation, absent actual knowledge to the contrary.

How will the new rules for the 6-month deferral suspension apply? 

Under existing rules, plans are required to suspend participant deferrals for a period of 6 months following a hardship distribution. Under the new rules, plans will no longer be permitted to suspend participant deferrals.

Although there was flexibility in implementing these changes for 2019, for hardship distributions made on or after January 1, 2020, plans will be prohibited from imposing the 6-month suspension period.

When are these changes effective?

Generally, these changes are effective for plan years beginning after December 31, 2018.  Again, there are special rules that apply for certain purposes such as the 6-month suspension period.

Will these changes require a plan amendment?

Yes, these changes will require a plan amendment. It appears that plan sponsors will be able to implement the new rules prior to amending their plan, though. The IRS has made it clear that the plan need not be amended by the end of the 2019 Plan Year to remain in compliance, provided the amendment is adopted by the end of the 2020 Plan Year. For Plan Sponsors on the EJReynolds pre-approved (prototype) documents, we are in the process of preparing those amendments and expect to have those out by the end of second quarter of 2020.

How can I learn more about these requirements?

Please contact the Plan Consultants at EJReynolds to learn more about how these rules impact your plan and participants!

 

EJReynolds – Cybersecurity Commitment

Trust your retirement plan development as well as your personal data with the retirement experts.

We often hear of data breaches with major corporations, even some whose main function is to protect your identity. How can you be sure your data is safe? EJReynolds would like to share with you the measures we take to safeguard the information we collect. Our cutting-edge cybersecurity commitment gives you the comfort and peace of mind that your information is always safe and secure.

How does EJReynolds handle and protect your personal information?

Our state-of-the-art cybersecurity program stems from our core principles of trust, integrity and ethics. We collect only the information necessary to enable us to consistently deliver the best products and services for our clients. We have implemented security standards and processes to ensure that access to client information is limited to your EJReynolds Plan Consultant.

Our Best Practice Cybersecurity Protocols Include:

–    Secure File Sharing with Citrix ShareFile©

EJReynolds’ secure file sharing link provides a safe and secure way to transmit sensitive information online. This assures that files are sent and received with bank-level encryption. You will be required to register through ShareFile’s one-time enrollment process to send and receive files securely.

–    Networks Are Secured with State-Of-The-Art Advanced Firewall Security

EJReynolds’ Firewall Security system protects our computer network from being attacked online by hackers, worms, viruses, etc. It is designed to stop unauthorized access to the EJReynolds computer systems.

–    Internal Networks Are Completely Protected with Industry Leading Threat Protection

Advanced Threat Protection (ATP) helps to protect our organization from malicious attacks by:

  • Scanning email attachments for malware
  • Scanning web addresses (URLs) in email messages and office documents
  • Identifying and blocking malicious files in online libraries
  • Checking email messages for unauthorized spoofing
  • Detecting attempts to impersonate users or organization’s custom domains

    –    Two-factor Authentication

EJReynolds implemented programs that require our Plan Consultants to use a two-factor authentication to protect our clients’ sensitive information. Once an EJReynolds employee logs into an account and enters their password, they receive a code via text or email at a pre-determined address. This code must be entered in a certain amount of time in order to access the account. This helps to ensure that any unauthorized attempts at drafts, distribution requests or other identity theft tricks are halted immediately.

–     Ongoing Training

Along with monthly training on the latest rules and regulations in the retirement plan area, each EJReynolds employee is required to complete a Phish Threat Security Awareness Training. Since the hackers are constantly changing their game, so must our defenses.

Our commitment to your security is just one more reason to trust your retirement planning to EJReynolds.

Solo (k) Plans

Are you a Small Business Owner? Are you Self-Employed? The same retirement plan options available to companies with 10, 20 or 200 employees are also available for your business. Many Small Business Owners may be more familiar with a Simplified Employee Pension (SEP) IRA. With a SEP you can deduct up to 25% of your earned income. However, it may make sense to look at a one-participant 401(k) plan. This combines a traditional employee retirement savings plan with a small business profit-sharing plan. This may make for a larger overall deduction comparable to the same earned income.

Contribution limits in a one-participant 401(k) plan – The business owner wears two hats in a 401(k) plan: employee and employer. The owner can contribute both:

  • Elective deferrals which reduce compensation (“earned income” in the case of a self-employed individual) up to the annual contribution limit:
    • $19,000 in 2019 ($19,500 in 2020), or $25,000 in 2019 ($26,000 in 2020) if age 50 or over; plus
  • Employer contributions up to:
    • 25% of compensation, as defined by the plan, with special calculations for sole-proprietor and partnership entities

Total contributions to a participant’s account, not counting catch-up contributions for those age 50 and over, cannot exceed the lessor of: 100% of compensation, or $56,000 for 2019; ($57,000 for 2020). In addition, the 401(k) limit on elective deferrals is an individual, calendar year limit, not a limit for each plan. If a business owner is also employed by another company and participates in its 401(k) plan, the total of all elective deferrals cannot exceed the annual contribution limit.

Contribution limits for self-employed individuals – If the business entity is a sole-proprietor or partnership, a special computation must be made to determine the maximum employer contribution. When calculating the contribution, it is a circular calculation. Compensation, or “earned income,” is the net earnings from self-employment after deducting both your share of the employer allocation and one-half of your self-employment tax.

Note: The IRS Publication 560 provides rate tables and worksheets for figuring your allowable contribution rate and tax deduction for your 401(k) plan contributions.

Testing in a one-participant 401(k) plan – A business owner with no common-law employees doesn’t need to perform nondiscrimination testing for the plan, since there are no employees who could have received benefits under the plan. The no-testing advantage vanishes if the employer hires employees. If the business hires employees, the plan must satisfy all coverage and non-discrimination requirements as any other 401(k) plan, once they become eligible.

Note: The Plan Document should be flexible enough to protect the employer if employees are hired in the future.

Reporting Requirements (Form 5500) – If plan assets exceed $250,000 at the end of a plan year, the plan will be required to file a Form 5500-EZ, or Form 5500-SF until the plan is terminated and all assets are disbursed.  A one-participant 401(k) plan with fewer assets is exempt from the annual filing requirement. When determining the $250,000 threshold, all plans of the entity are considered; if you sponsor more than one plan, the filing requirement starts when the sum of the assets combined in all plans exceeds $250,000 at year-end.

Note: Failure to file Form 5500 when required can result in substantial penalties on audit.

Most Small Business Owners are familiar with a SEP IRA. Planning for retirement with a 401(k) plan can offer a great degree of flexibility. The basics start with a 401(k) plan; and adding a defined benefit pension plan can greatly increase the potential tax deduction available to a successful business owner. Whether you are adopting a plan for the first time, or have one that needs cleaning up, EJReynolds is here to help.

New 2020 IRS Retirement Plan Limits Announced

The Internal Revenue Service publishes, on a yearly basis, certain Pension Plan Limitations for the coming year.  We have outlined the most commonly applied limits for your reference.

 

Maximum Defined Contribution Annual Additions Limit: 

 

In a Defined Contribution Plan, which includes Profit Sharing and 401(k) Plans, the Internal Revenue Code sets limits on contributions made to a participant’s account.  The Code uses the term “annual additions” which represents both employee and employer contributions as well as reallocated forfeitures.  Effective January 1, 2020, the annual dollar limit for defined contribution plans increases to the lesser of 100% of compensation or $57,000.

 

Maximum Defined Benefit Limit:

 

Ultimate benefit that may be funded for at retirement.  Effective January 1, 2020, the annual dollar benefit under a defined benefit pension plan increases to the lesser of 100% of compensation or $230,000.

Annual Compensation Limit:

Effective January 1, 2020, the annual compensation limit increases to $285,000.

Compensation in excess of the limit will be disregarded for all computation purposes.

Key Employee defined for Top Heavy determination:

  1. A 5% owner, without regard to compensation, or
  2. 1% owner whose annual compensation is over $150,000, or
  3. Officers with annual compensation in excess of $185,000.

Highly Compensated Employee (HCE) defined for 401(k) / 401(m) testing:

  1. A 5% owner of an Employer or an Affiliate in the current or the immediately preceding plan year, or
  2. Any employee earning more than $125,000 in 2019 ($130,000 for 2020)
  3. Constructive ownership rules apply attributing ownership to spouses and lineal ascendants and descendants (parents, grandparents, children and grandchildren) of the owner in both of the above employee definitions.

Maximum Limit on 401(k) Elective Deferral Contributions:

A participant’s elective deferral contributions under all 401(k) plans in which he or she participates during any taxable year increases to $19,500 for the 2020 Calendar Year. 401(k) plans may permit participants who have reached age 50 by the end of the plan year to make annual catch-up contributions once the annual dollar limit or a plan-imposed limit on elective deferrals has been reached.  For calendar year 2020, the limit increases to $6,500.

Maximum Limit on SIMPLE 401(k) or SIMPLE IRA Deferral Contributions:

A participant’s elective deferral contributions under a SIMPLE 401(k) plan or SIMPLE IRA account in which he or she participates during the year is increased to $13,500 for the 2020 Calendar Year. Participants who have reached age 50 by the end of the plan year to make annual catch-up contributions once the annual dollar limit or a plan-imposed limit on elective deferrals has been reached.  For calendar year 2020, the limit remains at $3,000.

Taxable Wage Base:

The Taxable Wage Base for 2020 increases to $137,700.

Please call us with any questions you may have. To print out the 2019 plan limit EJReynolds report, click here.

Hiring an Advisor for your company’s 401(k) Plan

Hiring the right advisor for your company’s 401(k) retirement plan is one of the most critical decisions you will ever make as a Plan Sponsor.

 

Contrary to popular view, the main purpose for hiring a retirement Plan Advisor is not to pick stocks and funds or chase the highest rate of returns. It is the knowledge of process by which investments are selected and fiduciary standards are put into practice that makes good 401(k) advisors indispensable.

 

You will be choosing your closest and most trusted ally to protect the best interests of your plan’s participants, and therefore, to manage your monumental fiduciary liability as a Plan Sponsor.

 

Minimize your risk

 

The right Plan Advisor candidate has the comprehensive background and team to minimize the risk of huge losses, including individual out-of-pocket penalties, arising from:

  • Lawsuits.
  • Accusations of mishandling.
  • ERISA and Department of Labor audits and investigations.
  • Penalties for noncompliance.

 

The top five reasons Plan Sponsors hire 401(k) Advisors

 

At the end of the day, what you want to assess is how well your advisor will help you:

  • Offload or limit your fiduciary liabilities.
  • Understand your fiduciary responsibilities.
  • Help your plan participants understand their options, benefits and how to make changes.
  • Help your plan stay updated and comply with government regulations
  • Help you structure a solid plan and adhere to it, as mandated by law.

 

Highest fiduciary comfort zone – ERISA 3(38)

 

Your 401(k) Plan Advisor can be a broker or a registered investment adviser, but brokers are not on the hook to be a fiduciary to you unless their boss (the broker-dealer) allows them to accept that liability. The safest comfort zone for a Plan Sponsor is to bring in a registered investment manager qualified under ERISA regulations 3(38). Because 3(38) investment managers assume discretion and control of plan investments, they will assume nearly all fiduciary liability in this regard.

 

Get it in writing

 

In either case, you will want your potential advisors to spell out exactly their fiduciary levels, whether they will assume a 3(38) role, a co-fiduciary role, a fiduciary role under 3(21), either full-scope or limited-scope, or any combination, under an ERISA benefits plan.

 

Interview questions for potential 401(k) Retirement Advisors

 

Here is a checklist of some interview questions you might want to ask:

  • How often do you hold regular meetings with Plan Sponsors?
  • How would you help develop or review our Investment Policy Statement (IPS)?
  • How often would you check that our investment options line up with our IPS?
  • How will you provide investment education for plan participants?
  • How would you help us meet new 408(b)(2) fee disclosure rules?
  • How often do you review fees of the Plan’s fund managers?
  • What process do you have for disclosing management fees to participants?
  • What is your process for ensuring investment fees are “reasonable” as mandated?
  • Who are your other service providers that would work with us?
  • What would be the exact level of the provider fiduciary responsibilities/liabilities?
  • What are your policies for handling rollovers brought by previous plan participants?
  • What expertise do you or your providers have on ERISA and plan administration?
  • There are so many fund share classes, how do you evaluate them for different plans?
  • Would you bring in a Third Party Administrator (TPA)?
  • Would the TPA provide mostly basic administrative services, or do they possess

more specific expertise, such as analyzing plan designs to save taxes for highly

compensated employees?

  • Would the fees for the TPA’s services be fair and reasonable per mandates?

 

Evaluate your Advisor’s resources

 

The field of investments is full of licenses and certifications. Some advisors are simply insurance licensed, and some have passed the “Series 6” exam that is administered by FINRA (Financial Industry Regulatory Authority), which allows the individual to register as a limited representative, and sell mutual funds and variable annuities. Still others have passed FINRA’s “Series 7” exam for general securities, stocks and bonds. More experience financial advisors may obtain the CFP or Certified Financial Planner designation, the AIF, or Accredited Investment Fiduciary designation, or the QPFC, or Qualified Plan Financial Consultant designation. It is a rare and valuable asset to have financial expertise and knowledge of ERISA in the same advisor. That said, a good advisor does not have to be an expert in all things ERISA, as long as they are professionally respected by their peers and consulting long enough to have built relationships with or employ providers who are qualified experts.

 

It is invaluable when a conversation arises about how to handle your unique, more complex situations and your advisor can quickly and confidentially call on a trusted ERISA attorney, TPA or Auditor to weigh in for informed decision making.

 

Summary: Hiring the right 401(k) Plan Advisor helps plan sponsors sleep at night

 

Picking stocks is a valuable skill, but not the most crucial area for Plan Sponsors to evaluate a candidate for Advisor. There are many good tools and guides for prudent investing, and most employees today opt to choose their own investment mix within your plan’s options. It is the protection of all involved from potentially catastrophic fiduciary liability that should be the guiding light for finding the best 401(k) advisor for your company’s retirement plan.

 

For more information on how the right advisor will benefit you as a fiduciary and your responsibilities as a fiduciary of a retirement plan, read our recent articles, Are you a Fiduciary, (https://ejreynoldsinc.com/are-you-a-fiduciary/) Fiduciary Responsibilities for Benefit Plans Under ERISA (https://ejreynoldsinc.com/?s=Fiduciary+Responsibilities+for+Benefit+Plans+under+ERISA), and Types of ERISA Fiduciaries (https://ejreynoldsinc.com/types-of-erisa-fiduciaries/).

Missing Participants in Retirement Plans

Missing participants in retirement plans can be a burden for plan sponsors. If actions are not taken to locate the participants and payout the benefits, potential (unintended) consequences can include:

  • Increased plan administration costs
  • Plan compliance issues, e.g. failure to follow the terms of the plan for mandatory distributions, required minimum distributions, death benefits, etc.
  • Potential for small plan filers (generally, plans with less than 100 participants) to become large plan filers (generally, plans with 100 or more participants), subject to a costly annual plan audit requirement
  • Complications with winding down a plan upon plan termination
  • Potential fiduciary risks

What steps should plan sponsors follow to locate missing participants?

DOL guidance outlines the steps plan sponsors should take to locate missing participants. The guidance is specifically for terminating defined contribution plans; however, it would be reasonable to apply this guidance for active plans as well.

  1. Certified Mail. Send notification to the participant or beneficiary via certified mail to the last known address.
  2. Other Employer Records. Review other employer records, such as group health plans, for current contact information.
  3. Participant’s Plan Beneficiary. Contact the participant’s beneficiary to request updated contact information (if there are privacy concerns, the DOL suggests the plan sponsor ask the beneficiary to forward a letter to the participant).
  4. Free Electronic Search Tools. Use free electronic search tools to attempt to locate the participant such as those for public records (e.g. licenses, mortgages, real estate taxes), obituaries, and social media platforms (e.g. Facebook, Twitter, etc.).

If the plan sponsor follows the steps outlined above but is still unsuccessful in locating the missing participant, the plan sponsor must consider whether additional steps are necessary after considering the cost of the search option (if being paid from the participant’s account) as well as the size of the participant’s account balance. The DOL states further search efforts may include commercial locater services, credit reporting agencies, information brokers, investigation databases and similar services that involve a fee.

IMPORTANT: The DOL notes failure to take such steps would be a violation of the plan sponsor’s obligation of prudence and loyalty to plan participants and beneficiaries. Strictly speaking, the plan sponsor must follow these steps to locate missing participants – it is mandatory

What if the participant cannot be found after using all available search options?

For active plans, it may be possible to rollover the missing participant’s balance to an IRA if (1) provided for under the terms of the plan, (2) the participant’s balance is less than $5,000, and (3) the plan sponsor has sufficient information regarding the participant to be able to facilitate the rollover. If the participant’s balance is $5,000 or more, this generally is not an option.

Alternatively, if provided for under the terms of the plan document, it is permissible to forfeit a missing participant’s (or beneficiary’s) balance provided the balance will be restored in the event the participant (or beneficiary) is later located.

Both options discussed above are optional provisions, so it is important to review the terms of the plan document. If the plan doesn’t include either (or both) provisions, it generally would be permissible to amend the plan to include such features.

Note: Different rules apply to terminating plans since all plan assets must be distributed within a reasonable period following plan termination. For example, one of the available options is to roll the balance of a missing (or unresponsive) participant to an IRA, even if their balance exceeds $5,000.

Can’t we just withhold 100% in taxes and submit to the IRS?

No. The DOL specifically points out that, although this is a practice used by some plan sponsors, this is not acceptable because there is no guarantee the participant will receive their benefits.

To learn more about how to deal with missing participants in your retirement plan, let the experts at EJReynolds help you understand all of the options available to you or your company. For more information, please contact us today.

Your fiduciary responsibility regarding payment of plan fees from plan assets

In general, the fees associated with on-going administration of a retirement plan may be paid from plan assets provided they are necessary and reasonable. Certain expenses known as “settlor” expenses, however, cannot be paid for from plan assets.

What is considered to be reasonable?

The Department of Labor (DOL) requires (1) the expense is reasonable in light of the services provided; (2) the service is necessary; (3) the arrangement can be terminated without penalty (this doesn’t mean there can be a termination fee, though); and (4) the service provider has provided certain required disclosures regarding their fees and services prior to entering into the arrangement.

What are “settlor” expenses?

These are expenses that must be paid for by the employer because they are associated with the employer’s functions as a settlor of the plan trust.

Is there a simple way to determine whether a particular expense is a settlor expense?

Not really. Unfortunately, the DOL has not issued comprehensive guidance on this front, but they have issued some guidance. That said, there are two basic questions that should be considered:

  1. Is the expense necessary for the on-going administration of the plan?
  2. Is the expense discretionary and who does it primarily benefit?

In other words, if the expense is reasonable and relates to the normal operation of the plan, the expense may be paid for by the plan. If, on the other hand, the expense is discretionary and primarily benefits the employer, it would generally be considered a settlor expense.

What are examples of expenses that can be paid for by a plan?

  • Annual administration, recordkeeping, compliance testing, and Form 5500 preparation
  • Annual plan audit fees (large plan filers)
  • Investment management, advisory, trustee and custodial fees
  • Participant education, enrollment materials and required notices and disclosures
  • Required plan amendments and restatements
  • Fidelity bond
  • IRS determination letter filing fee
  • Participant distribution and loan fees
  • QDRO review

What are examples of expenses that cannot be paid for by a plan?

  • Plan design studies and projections (these primarily benefit the employer and are viewed as a settlor expense by the DOL)
  • Initial plan document, discretionary amendments and discretionary restatements (the DOL appears to view these as settlor expenses, even though the plan document is required as a matter of plan qualification)
  • Fees associated with the decision by an employer to terminate a plan
  • Fees and expenses related to plan corrections made under available IRS and DOL programs
  • Fees and expenses related to filing a late Form 5500 under the delinquent filer program

Are the rules different if the fee will be paid from the forfeiture account?

No. Amounts held in a plan forfeiture account are plan assets; the same rules apply.

Note: Some plans use “ERISA budget accounts” or “revenue holding accounts” to accept revenue sharing payments from plan investment providers and pay plan expenses. It is our view that these accounts generally should be treated in the same manner as any other plan asset.

How can eligible expenses be charged to plan participants?

Plan-level expenses may be charged (1) in proportion to participant account balances, (2) as a flat fee to participant accounts, or (3) some combination of both methods. In addition, certain plan fees may be paid for by the plan through the plan’s investment vehicles and are reflected as a reduction in investment returns.

Participant-level fees (e.g. distribution and loan fees) are typically charged directly to participant accounts.

Does the plan document need to provide that expenses can be paid for from the plan?

Generally, yes, and most plans do allow for eligible expenses to be paid for from plan assets. The plan should also state that fees may be paid for from the forfeiture account, if desired.

Does it make sense to charge eligible expenses to a plan?

It really depends on the plan and the goals and objectives of the plan sponsor. If the plan pays (whether directly or indirectly through plan investments), overall investment performance is reduced, and this can make a big difference over time. For plans of closely-held businesses, it often makes more sense for the employer to pay the expenses (they are deductible). It is much more common in large plans for the plan participants to bear most (if not all) of the related costs.

If eligible expenses are paid for by the plan, are there any required disclosures?

Yes. There are disclosure rules that apply for both plan service providers and plan participants (in participant-directed plans).

Note: Whether a particular fee or expense may be paid for by a plan is a fiduciary decision. Plan fiduciaries are charged to act prudently and in the best interest of plan participants. If a fee is charged improperly, the fiduciary(s) may be held liable so plan sponsors should exercise due care when determining whether it is appropriate for a plan to pay for a given expense.

 

Mid-Year Amendments for Safe Harbor Plans

For many years the IRS did not permit mid-year changes to Safe Harbor 401(k) plans except under very limited circumstances. In 2016, the IRS issued Notice 2016-16 relaxing the rules providing sponsors of Safe Harbor 401(k) plans with much greater flexibility throughout the year. The guidance does contain a short list of changes that are specifically prohibited, but many changes are permissible provided certain conditions are satisfied.

Which changes are permissible?

In general, most changes that would be permissible mid-year in a traditional 401(k) plan can be made in a Safe Harbor plan as long as the necessary requirements are met.

What are the requirements for amending a Safe Harbor plan mid-year?

If a permissible amendment results in a change to the information provided in the Safe Harbor notice, an updated notice must be provided within a reasonable period prior to the effective date of the change. For this purpose, the IRS considers the timing requirement to be satisfied if the updated notice is provided at least 30 (but no more than 90) days prior to the change.

In situations where it is not practical to provide the notice prior to effective date of the change (e.g. the plan is being amended retroactively as the first day of the plan year to provide for an additional match), the updated Safe Harbor notice must be provided as soon as possible but no later than 30 days after the date the amendment is adopted.

In either case, participants must also be provided the opportunity to change their deferral elections for a reasonable period of time following receipt of the updated Safe Harbor notice.

What if the change does not impact the information provided in the Safe Harbor notice?

If the change does not impact the information required to be provided in the Safe Harbor notice, there is no requirement to provide an updated notice or to provide participants with an opportunity to make changes to their deferral elections.

Keep in mind, however, the plan would generally be required to provide participants with either a Summary of Material Modifications or an updated Summary Plan Description.

Which changes are specifically prohibited mid-year?

  • Any change that would reduce the number of participants who are currently eligible to receive Safe Harbor contributions
  • Changing the type of Safe Harbor plan (e.g. changing from a traditional Safe Harbor plan to a qualified automatic contribution arrangement)
  • Increasing the number of years required to become vested in Safe Harbor contributions under a qualified automatic contribution arrangement
  • A mid-year change to add or modify the formula used to calculate matching contributions (or related plan compensation) or a mid-year change to permit discretionary matching contributions, unless certain additional conditions are satisfied

 

What are the conditions for making changes to matching contributions?

In order to increase Safe Harbor matching contributions (or to add or modify a fixed or discretionary matching contribution), the amendment must be adopted at least 3 months prior to the plan year, must be retroactive as of the first day of the plan year, and, the necessary notice and deferral opportunity requirements must be met.

Can a plan change from a Safe Harbor match to a 3% Safe Harbor nonelective contribution mid-year?

No. This is not permissible under the notice or regulations. This type of change could only be made as of the first day of the following plan year.

Did the IRS provide any example of permissible amendments?

Yes. IRS Notice 2016-16 provides several examples of permissible amendments including the following:

  • An amendment to increase the Safe Harbor nonelective contribution from 3% to 4% for future contributions
  • An amendment made prior to 3 months before the end of the plan year to increase the Safe Harbor matching contribution from 4% to 5% and to change the period for calculating match from a payroll period to plan year basis retroactively
  • An amendment to add an age 59 ½ in-service distribution feature

Can a plan be amended to reduce or suspend Safe Harbor contributions mid-year?

It depends. This is addressed under the Safe Harbor regulations. A Safe Harbor plan may only be amended mid-year to reduce or suspend Safe Harbor contributions if (1) the employer is operating at an “economic loss”, or (2) the annual Safe Harbor notice included a statement indicating that the plan could be amended to remove or suspend Safe Harbor contributions during the plan year. Additional procedural requirements must also be satisfied, and the plan essentially reverts to a traditional 401(k) plan for the plan year.

Can a Safe Harbor plan be terminated mid-year?

Yes. This is also addressed under the regulations. In general, Safe Harbor contributions must be made through the date the plan is terminated, and other conditions must be satisfied. Unless the plan termination is due to a “substantial business hardship”, or as a result of a company merger or acquisition transaction, the plan would lose its Safe Harbor status for the final plan year (i.e. the plan would be subject to ADP/ACP testing, top heavy requirements, etc.)

What changes can only be made as of the beginning of a plan year?

While many changes can be made mid-year, certain changes can only be made as of the first day of the following plan year, and the amendment must be adopted prior to the first day of the plan year. Examples of such amendments include:

  • Adding a Safe Harbor provision to an existing traditional 401(k) plan
  • Changing the plan’s Safe Harbor formula from a Safe Harbor nonelective contribution to a Safe Harbor match

How can I learn more?

Please call EJReynolds at 954.431.1774 or visit ejreynoldsinc.com