Category: Articles

One of the most common mistakes made by 401(k) plan sponsors is failure to deposit participant contributions (i.e. 401(k) deferrals/Roth contributions) and loan payments in a timely manner. Having said that, it is worthwhile reviewing the rules and consequences of making late deposits.

What are the rules?

In general, the Department of Labor (DOL) requires that participant contributions and loan payments be deposited as soon as the amounts can be reasonably segregated from the general assets of the employer.  This is because the amounts are considered to become plan assets at this point in time. Under examinations, the DOL also reviews deposits for consistency to determine whether contributions were funded in a timely manner.

Safe Harbor for Sponsors of Small Plans

Under the regulations, there is a “safe harbor” for sponsors of small plans (generally, plans with less than 100 participants). Under this rule, participant contributions and loan payments will be deemed to have been funded in a timely manner provided that the contributions are deposited within seven business days following the date in which the amounts were withheld.

Sponsors of Large Plans

Since the 7-business day rule does not apply to large plans, these plan sponsors must abide by the general rule of making the deposits as soon as the amounts withheld can be reasonably segregated from the general assets of the employer. As a result, we generally recommend these employers make deposits within three business days on a consistent basis.

What are the consequences of making late deposits?

The employer has engaged in a prohibited transaction with the plan because the employer had “use” of plan assets.

• The late deposit must be reported on Form 5500
• The employer must pay a 15% excise tax on the amount involved by filing Form 5330
• Participants must be credited with lost earnings (the DOL has an online calculator that may be used for this purpose in certain situations)

Is the employer required to file under the DOL’s Voluntary Fiduciary Correction Program (VFCP)?

No. Filing under VFCP is not required. Nevertheless, employers may want to file under this program to obtain relief from the DOL for penalties that may otherwise be imposed and agreement not to investigate the plan fiduciaries for failure to deposit the amounts in a timely manner.

If you have any questions regarding the deposit rules or would like to learn more, please contact us.

On April 19, 2019, the IRS issued guidance expanding the circumstances under which plan sponsors can make corrections for certain plan failures under the Employee Plans Compliance Resolution System (EPCRS) without seeking IRS approval. This is welcome relief since filing under the Voluntary Correction Program (VCP) can be costly, especially for small employers.

What changed?

The new guidance expands the corrections that can be made under the Self-Correction Program (SCP) by permitting corrections for certain plan loan, operational and plan document failures which could previously only be made by filing an application under the VCP. Since the IRS User Fees on the VCP Filings increased substantially last year, filing a VCP Application can be a costly process.

Plan Loan Failures

Plan loan failures are common and often occur when an employer fails to withhold loan payments from an employee’s paycheck. If the payments are not caught up within a specific time frame (known as the “cure period”), the loan is defaulted and the outstanding loan balance is taxed to the participant.

Previously, if the mistake was found after the expiration of the plan’s cure period, the only way to make the correction (and avoid taxation to the participant) was to file under VCP. This could be quite costly, since the VCP filing fees are based on plan assets (and not the failure itself). For example, if a plan sponsor needed to make corrections for three participants and the plan had $1,000,000 in assets, the VCP filing fee would be $3,000 (not including service provider fees to prepare the filing).

Under the updated procedures, a plan sponsor is permitted to make the correction for a loan that has gone into default under SCP assuming certain conditions are satisfied. The correction methods, however, remain unchanged. In general, a defaulted loan can be corrected by (1) having the participant make a lump-sum payment for the late loan payments, including accrued interest; (2) reamortizing the outstanding loan balance, including accrued interest, over the remaining term of the loan; or (3) a combination of both methods.

Note: In order to correct a defaulted loan (under SCP or VCP), the maximum 5-year repayment term (or longer period in the case of a home loan) must not have expired.

The new procedures also provide additional correction options for other types of plan loan failures.

Operational Failures

An “operational failure” is simply defined as a failure to follow the terms of the plan document. Many plan mistakes fall within this category. While most operational failures were previously eligible to be corrected under SCP (assuming the timing and general requirements were satisfied), there were only limited and specific circumstances under which corrections could be made by amending a plan retroactively to conform its terms to the plan’s prior operations.

For example, if plan operationally allowed all participants to make Roth contributions (without amending the plan to permit Roth contributions), a VCP filing would have been required to amend the plan retroactively to correct the mistake. Under the new guidance, this generally could be done under SCP.

These changes should give plan sponsors much greater flexibility in making necessary plan corrections, since the rules have been relaxed for retroactive amendments used to correct operational failures. This doesn’t mean that any operational failure can be made by retroactive amendment under SCP, though. The IRS did impose specific restrictions, but this is still a huge win!

Plan Document Failures

Plan document failures happen when a plan contains a provision (or provisions) that, at face value, is not permissible under the Code or regulations. They also happen when a plan fails to adopt a required plan amendment (or document restatement). Previously, such corrections could only be made under VCP. Under the updated guidance, plan sponsors are now permitted to make the necessary corrections under SCP provided the corrections are made within a specific time frame and other conditions can be met.

The Bottom Line

Mistakes happen; the rules governing retirement plans are complex. This new guidance is great news for plan sponsors, making it much easier for them to work with their plan service providers to correct certain failures without a costly VCP filing.

To have questions answered about these new rules, please contact us.

If your client has a traditional 401(k) plan that failed the 2019 ADP/ACP testing, it may be the perfect time to discuss the option of adding a safe harbor provision to the plan.  The following provides a general overview of the rules applicable to safe harbor 401(k) plans.

What is a Safe Harbor 401(k) plan?

A safe harbor 401(k) plan is a type of retirement plan that is exempt from certain testing requirements. Specifically, a safe harbor plan is generally exempt from ADP/ACP testing enabling the plan’s highly compensated employees to maximize 401(k) deferrals/Roth contributions without limitation. Safe harbor plans may also be exempt from top-heavy requirements if certain conditions are met.

What are the contribution requirements?

The plan must make either a safe harbor non-elective contribution or safe harbor matching contribution. These contributions cannot be subject to allocation conditions, e.g. employment on the last day of the plan year and/or 1,000 hours, and must be:

• 100% vested
• Subject to the same distribution restrictions as 401(k) contributions

What is a safe harbor non-elective contribution?

A safe harbor non-elective contribution is similar to a profit sharing contribution and must be made on behalf of all eligible employees, with limited exceptions. The contribution must be, at a minimum, 3% of eligible plan compensation regardless of whether the employee elects to defer or is employed on the last day of the plan year. The SECURE Act of 2019 made changes to this plan design that allow a Plan Sponsor to add this provision at any time during the Plan Year, or even after the end of the Plan Year up until the due date of their tax return. Adding the provision after the 11^th month of the Plan Year would require a 4% contribution rather than 3%, but that can drop back down to 3% for future years.

What is the formula for safe harbor matching contributions?

Unlike the safe harbor non-elective, the safe harbor matching contribution can only be added at the beginning of a Plan Year.

There are two basic formulas that may be used:

• 100% on the first 3% of salary deferred, plus 50% on the next 2% of salary deferred (maximum of 4% match)
• 100% on at least the first 4% of salary deferred, but no more that 6% of salary deferred

Are there other requirements?

Yes, but only for the safe harbor matching contribution; before the beginning of each plan year the employer must provide all eligible employees with a notice meeting specific requirements. The notice must also be provided to employees before they become eligible to participant in the plan on an ongoing basis throughout the year.

Can a plan make matching contributions in addition to safe harbor matching contributions?

Yes, however, depending upon the matching formula, ACP testing may be required.

If the plan allows for after-tax (non-Roth) contributions, is the plan still exempt from ACP testing?

No; voluntary after-tax contributions are always subject to ACP testing.

For additional matching contributions to be exempt from ACP testing, what conditions must be satisfied?

• Discretionary matching contributions may not exceed 4% of compensation
• Deferrals in excess of 6% may not be matched
• The rate of match may not increase as deferrals increase
• The plan may not impose allocation conditions on additional matching contributions

In order for the plan to be exempt from the top-heavy rules, what conditions must be satisfied?

• No contributions may be allocated to participants for the plan year other than 401(k), Roth and safe harbor contributions
• Forfeitures may not be allocated to participant accounts for the plan year
• The plan may not have dual eligibility requirements, e.g. immediate eligibility for 401(k) and a one-year wait for safe harbor contributions

Can a safe harbor plan include an automatic enrollment feature?

Yes; as a matter a fact, a safe harbor plan can be designed in such a way that if it includes an automatic enrollment feature with an automatic escalation feature, the plan can take advantage of a lesser safe harbor matching contribution formula and a 2-year cliff vesting schedule.

Can a safe harbor plan provide profit sharing contributions?

Absolutely! The plan can provide for discretionary (or fixed) profit sharing contributions in addition to safe harbor contributions and can include any allowable allocation formula, such as an integrated or cross-tested formula. This just means the plan will not be exempt from the top-heavy rules in years in which the employer elects to make a profit sharing contribution.

When can a plan adopt safe harbor provisions?

An existing 401(k) plan can only adopt a Safe harbor Matching Contribution feature effective as of the beginning of a plan year. Different rules apply to profit sharing only and new plans.

How can I learn more?

If you would like to learn more about safe harbor plans, please contact us. We would be happy to assist you with determining whether this type of design would be a good fit for any of your retirement plan clients.

 

When a participant terminates employment, what happens to their loan balance?

Most plans provide that the loan becomes payable in full upon termination of employment. If the loan is not repaid within a specified amount of time, the loan is “offset”. What this means is the outstanding loan balance is treated as being distributed from the plan to the participant.

A plan can, however, permit a participant to continue to make regularly scheduled loan payments after termination employment, so you will want to check the plan document and loan policy to determine which provisions apply.

Is a loan that has been offset taxed?

A loan that has been offset (which is an actual distribution) is taxable to the participant. Further, it is subject to the 10% early withdrawal penalty unless an exception applies.

To avoid taxation, a participant can rollover the dollar amount of the loan balance that was offset to an IRA or other qualified plan (assuming the plan accepts such rollovers).

How long does a participant have to complete the rollover?

Effective January 1, 2018, a participant has until the extended due date of his or her individual income tax return (for the year the loan was offset) to complete the rollover.

It is important to note this extended rollover period only applies to the loan offset amount; the normal 60-day rollover window applies to any cash distributions.

Is the loan offset amount subject to 20% federal withholding?

It depends. If the participant receives a cash distribution, the outstanding loan balance is included when determining the 20% withholding requirement. If the participant doesn’t take a cash distribution, then withholding would not apply.

Can a participant rollover their actual loan balance to another employer’s plan?

Possibly. Assuming the loan has not been offset, it would be permissible to rollover the loan itself from one plan to another if permitted under the terms of both plans. However, this is not a very common feature.

What if a plan is terminated?

Generally, the rules described above also apply when a plan is terminated.

How can I learn more?

If you would like to learn more about these rules, please contact us.

What are Required Minimum Distributions?

Required Minimum Distributions (RMDs) are minimum payments that must be made to participants in qualified plans and to owners of IRAs on an annual basis after an individual has attained a certain age.

When must RMDs begin in a qualified retirement plan?

In general, RMDs must begin no later than April 1st following the calendar year in which the participant attains age 70 ½ or retires.

RMDs must commence, however, for “5-percent” owners no later than April 1st following the calendar year in which the participant attains age 70 ½ even if the owner is still actively employed.

A plan may, but is not required to, require RMDs begin for all participants (owners and non-owners) no later than April 1st following the calendar year in which the participant attains age 70 ½ (but most plans don’t).

For example, a non-owner participant turns 70 ½ on July 1, 2018 and retires on July 31, 2018. His first RMD is due for 2018 but may be made as late as April 1, 2019. If he elects to take his first RMD in 2019, then he will be required to receive two RMDs in 2019 (one for the 2018 calendar year and one for 2019).

What is a “5-percent” owner?

Generally, a “5-percent owner” is any individual who owns more than a 5% interest in the company, and certain family members of 5-percent owners.

Do the same rules apply to IRAs?

Not exactly; the exception discussed above for non-owners does not apply to traditional IRAs. RMDs must commence no later than April 1st following the calendar year in which the IRA owner attains age 70 ½.

Note: Roth IRAs are not subject to the RMD rules until after the death of the IRA owner.

What is the due date for RMDs?

After the first year (when the distribution must be made by the following April 1st), RMDs from a defined contribution or 401(k) plan must be made each year by December 31st. For a defined benefit plan, including cash balance plans, the RMD must be calculated and distributed as of April 1^steach year.

Note:It is important to remember that most plan recordkeepers and IRA custodians need time to process distributions. A good third party administrator will make sure the plan sponsor is aware of any RMDs that must be made so that they can be issued in a timely manner.

For IRAs, the owner should make sure he or she communicates with his or her IRA custodian so that there is ample time to process the necessary distribution.

According to the IRS*, some of the most common mistakes made in 401(k) plans include:

• Failure to include or exclude certain types of compensation for contribution purposes
• Failure to include eligible employees and/or exclude ineligible employees
• Failure to withhold loan payments resulting in defaulted participant loans
• Failure to make required top-heavy minimum contributions

The good news is that most of these mistakes can be corrected through the self-correction procedures set forth under the Internal Revenue Service’s Employee Plans Compliance Resolution System (EPCRS)!

Overview of EPCRS

The purpose of EPCRS is to allow plan sponsors to correct plan defects and protect the qualified status of their plans. EPCRS includes three programs:

• Self-Correction Program (SCP)– This program allows plan sponsors to self-correct certain defects without having to go to the IRS for approval.
• Voluntary Correction Program (VCP)– This program allows plan sponsors to correct failures by filing for approval with the IRS. Certain defects must be corrected under this program, and there are fees associated with the filing.
• Audit Closing Agreement Program (Audit CAP)– This program is available for failures that are discovered during examination that have not been corrected under SCP or VCP. Although the plan sponsor can still make corrections, the IRS will impose sanctions.

General Correction Principles

Regardless of the program used, there are basic principles that govern all corrections:

• Corrections should restore the plan and its participants to the position they would have been had the failure not occurred.
• Corrections should be reasonable and appropriate for the error and should (1) be consistent with existing laws and regulations, (2) provide benefits in favor of non-highly compensated employees, and (3) retain assets in the plan.
• There generally should be a full correction for all plan years.
• The correction generally must include related earnings.

In addition, EPCRS includes correction methods for certain plan failures that are deemed to be reasonable and appropriate provided that the corrections are made in accordance with the prescribed methods.

Types of Plan Qualification Failures

EPCRS categorizes plan defects as follows:

• Operational Failures– A failure to follow the terms of the plan. Most mistakes fall in this category and can be corrected through the self-correction program as long as they are discovered in time (see below).
• Plan Document Failures– A failure that occurs because one or more plan provisions (or absence of provisions) violate the requirements of the Internal Revenue Code (e.g. failure to adopt required plan amendments in a timely manner).
• Demographic Failures– A coverage or nondiscrimination testing failure that is not an operational failure. Generally, these failures must be corrected by amending the plan to provide for additional benefits on behalf of non-highly compensated employees.
• Employer Eligibility Failures– Adoption of a 401(k) plan by an employer that fails to meet the employer eligibility requirements to sponsor a 401(k) plan.

Note: The self-correction program is not available for plan document, demographic, or employer eligibility failures.

General Rules for the Self-Correction Program
In general, insignificant operational failures may be corrected under SCP at any time; significant operational failures can only be corrected under SCP if they are completed (or substantially completed) by the last day of the second plan year following the plan year in which the error occurred. Corrections of significant failures that are made outside of the required timeframe must be completed through VCP. Whether a particular failure is significant is based on the relevant facts and circumstances.

Note: There are a limited number of operational failures that must be corrected under VCP (e.g. plan loan failures).

Correcting Mistakes
The rules governing retirement plans are complex and mistakes happen. Since the IRS can, and will, impose sanctions when failures are found during examination, it is always best to fix plan defects under SCP or VCP so that costly sanctions can be avoided!

To learn more about EPCRS and correcting plan failures, please contact us.

*Source:“EPCRS: Correcting Common 401(k) Mistakes”, July 25, 2013, IRS Phone Forum

Since it’s time for most 401(k) plans to perform annual nondiscrimination testing, it makes sense to review the requirements for the ADP/ACP tests and the options for plans that fail one or both tests.

Note: Plans that provide for safe harbor matching or safe harbor nonelective contributions are generally deemed to satisfy both tests.

What are the ADP and ACP tests?

The ADP/ACP tests are performed to demonstrate that the plan does not discriminate in favor of highly compensated employees (HCEs) with respect to 401(k)/Roth deferrals and employer matching contributions. The ADP test compares the average deferral rates of the HCEs to that of the non-highly compensated employees (NHCEs); the ACP test does the same for matching contributions. Plans may use either the current year or prior year average of the NHCEs for this purpose; however, the method selected must be specified in the plan document.

In general, a plan passes these tests if the average of the HCEs does not exceed the lesser of (1) the NHCE average plus 2%, or (2) 2 times the average of the NHCEs.

Do catch-up contributions get counted in the ADP test?

No. If a participant makes catch-up contributions by either exceeding the statutory limit ($18,500 for 2018/$19,000 for 2019) or a plan-imposed limit, the amounts are excluded from the ADP test.

What happens if a plan fails these tests?

The plan sponsor must take corrective actions which typically involves issuing corrective distributions to certain HCEs. Although this is the most common way to correct failures, many plans also allow for the employer to make an additional contribution to the plan on behalf of certain NHCEs. These amounts, known as QNECs (Qualified Nonelective Contributions) and QMACs (Qualified Matching Contributions), must be 100% vested and are subject to certain distribution restrictions.

Note: It may be possible to correct or reduce the impact of an ADP testing failure by “reclassifying” deferrals of eligible HCEs as catch-up contributions. When this occurs, corrective distributions are reduced by the reclassified amounts to the extent they do not exceed the catch-up limit ($6,000 for 2018 and 2019).

Is there a deadline for correcting failures?

Yes. Generally, 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 “eligible automatic contribution arrangement” have up to 6 months to issue corrective distributions without incurring excise taxes.

A number tests must be performed each year to demonstrate that 401(k) plans do not discriminate in favor of highly compensated employees and that contributions do not exceed certain limitations. Some of the most common tests include:

• ADP/ACP Tests
• Annual Deferral Limit
• Annual Additions Limit
• Coverage Test
• Top Heavy Determination

Highly Compensated and Key Employees

For purposes of these tests, it is important to understand two basic definitions. Highly compensated employees are employees who (1) own more than 5% of the company*, or (2) earned compensation in excess of a certain dollar amount in the prior year ($120,000 for 2018). Some plans limit the number of employees considered to be highly compensated by making a “top paid group” election. Whether this is beneficial for a given plan depends on a number of factors including the demographics of the workforce.

Key employees are employees who at any time during the plan year (1) owned more than 5% of the company*, (2) owned more than 1% of the company* and had compensation in excess of $150,000, or (3) were officers of the company with compensation greater than a certain dollar amount ($175,000 for 2018).

*Stock attribution rules apply when determining ownership. This means direct relatives of the owner(s) are generally considered to “own” the same percentage for purposes of determining highly compensated and key employee status.

ADP/ACP Tests

The ADP/ACP tests are performed to demonstrate that the plan does not discriminate in favor of highly compensated employees with respect to 401(k)/Roth deferrals and employer matching contributions. If the plan fails one or both of these tests, corrective actions must be taken which often includes issuing corrective distributions.

Note: Plans that provide for safe harbor matching or safe harbor nonelective contributions are generally deemed to satisfy both tests.

Annual Deferral Limit

The annual deferral limit ($18,500 for 2018 plus $6,000 for participants age 50 or older) is a limit placed on the amount a participant may contribute through pre-tax deferrals and/or Roth contributions. This combined limit is always measured on a calendar year basis and applies to the individual. As a result, the participant has the responsibility of informing the plan administrator if they made excess deferrals and participated in an unrelated employer’s plan.

The excess amount, along with related earnings, must be distributed no later than April 15th of the following year. If this deadline is not met the participant will be taxed on the excess amount in both the year of the deferral and the year of distribution.

Annual Additions Limit

Participants are also subject to an overall contribution limit known as the “415 limit” (the lesser of 100% of gross compensation or $55,000 for 2018). This limit generally includes all contributions made to the plan for a particular plan year; however, it does not include rollover contributions or catch-up contributions. If the limit is exceeded, corrective actions must be taken which normally involves issuing corrective distributions or forfeiting the excess amounts, adjusted for related earnings.

Coverage Test

The coverage test is performed to demonstrate that the plan meets the minimum coverage standards required by law. This test must be run separately for each contribution type or component of the plan (e.g. 401(k), match, and profit sharing).

In general, the test is satisfied if the plan covers at least 70% of all of the employees who have met the minimum statutory age and service requirements (i.e. age 21 and 1 year of service). In the event of a failure, the employer typically must make an additional contribution to the plan on behalf of non-highly compensated employees.

Top Heavy Determination

In general, a 401(k) plan is considered to be top heavy when more than 60% of plan assets are attributable to key employees as of the last day of the prior plan year. Top heavy plans are subject certain minimum contribution and vesting requirements.

Other Required Tests

This has been a broad overview of the general testing requirements for 401(k) plans and is not meant to be comprehensive. Other tests may be required depending upon a particular plan’s design and its features. For example, plans that exclude certain types of compensation, such as commissions, or allocate profit sharing contributions to different groups of participants are subject to additional testing requirements.
To learn more about the testing requirements for your specific plan, please contact us.

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:

Note: Deadlines are based on a calendar year.

• March 15th – Deadline for issuing corrective distributions to correct ADP/ACP testing failures for non-safe harbor 401(k) plans.

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 “eligible automatic contribution arrangement” 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 – $18,500 for 2018). 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 the applicable regulations.

• December 31st – Final deadline for issuing corrective distributions for ADP/ACP testing failures for the prior year (or for making a QNEC/QMAC 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 us to learn more about how these rules impact your plan and participants!