Should your clients add a Safe Harbor 401(k) provision?

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 11th 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.


Loans and Termination of Employment

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 you need to know about Required Minimum Distributions (RMD)

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 1steach 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.

Correcting Mistakes in 401(k) Plans

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

ADP/ACP nondiscrimination Testing – What is it all about?

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.

Annual Compliance Testing for 401(k) Plans

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.


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.

Important 401(k) Testing Deadlines to Remember!

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!

Plan Compensation – Not So Simple!

At face value, it seems like “compensation” would be one of the simplest issues to deal with in a retirement plan, but it is actually one of the most complex. Understanding what compensation is “plan eligible” is one of the biggest headaches for plan sponsors and an area in which plan sponsors often make mistakes.

If you think about all the different forms of compensation you pay your employees (e.g. bonuses, commissions, fringe benefits, paid sick time, vacation time, automobile allowance, severance pay, group term life in excess of $50,000, etc.), it becomes clear why this is such a complex issue!

What is “plan eligible” compensation?

Plan eligible compensation must be defined under the terms of the plan, and the terms of the plan must be followed. There are 3 basic definitions of compensation that are commonly used:

  • W-2 Compensation
  • Income subject to federal income tax withholding
  • “415” Compensation (basically, an all-encompassing definition)

Note: Other definitions of compensation may be used, but they are generally subject to additional testing requirements.

Why does plan compensation matter?

It matters for several reasons, but primarily because all contributions must be based on the plan’s definition of compensation.

What is this important to me as a plan sponsor?

At the end of the day, a plan must be operated in accordance with the terms of the plan to protect its qualified status, so it is very important to understand what compensation is plan eligible.

Common sense often drives employers to make decisions about whether to apply an employee’s 401(k)/Roth election to certain compensation items, but common sense doesn’t rule in this situation.

For example, one of the most common mistakes made by plan sponsors is to not withhold employee deferrals from bonuses, rather than allowing employees to make this election.

Bonuses are plan compensation, unless specifically excluded under the terms of the plan. Unless the plan allows employees to make a specific election with respect to bonuses, the deferral election must be applied to this compensation.

So, what happens if an employer makes a decision not to withhold from bonuses? Generally, the correction is for the employer to make a corrective contribution on behalf of the affected participants for the “missed deferral” along with any related matching contributions, adjusted for earnings. A mistake that is costly for the employer and totally preventable!

Can a plan exclude bonuses or commissions from its definition of compensation?

It depends; unless the plan uses one of the “common” definitions, certain testing must be done each plan year to ensure the plan’s definition of compensation doesn’t discriminate in favor of the plan’s highly compensated employees. Excluding bonuses or commissions from eligible compensation requires this additional testing, so whether it is viable in a given situation depends on a number of factors.

What about fringe benefits; must they be included?

No, provided the plan’s definition excludes all of the following (even if includible in gross income): reimbursements or other expense allowances, fringe benefits (cash and noncash), moving expenses, deferred compensation, and welfare benefits.

Can we exclude other compensation items from the plan’s definition of compensation?

It depends on your specific company, how you compensate your employees, the demographics or your workforce and the general provisions of your plan. It is certainly acceptable to design your plan in such a way that certain compensation items are excluded provided the plan can meet the necessary nondiscrimination testing requirements and you can properly administer its provisions.

The Bottom Line

A plan’s definition of compensation is one of the most complex issues impacting retirement plans. It is important your plan is designed properly to meet your specific needs and that you, as a plan sponsor, understand your plan’s definition of compensation so that you can keep your plan in compliance and avoid costly mistakes!

We possess the necessary expertise to help you navigate through these issues and want to help you optimize your plan’s design so that it works well for you and your employees! Please contact us to learn more.

Subject: The Importance of Cybersecurity for Retirement Plans

Subject: The Importance of Cybersecurity for Retirement Plans

Cybersecurity should never be an afterthought, but sometimes it is not taken seriously enough. With the ever-increasing risk of cyber-attacks, it is imperative that every company and every employee take threats extremely serious.  PWC’s 2018 Global State of Information Security survey found that cyber attacks have been growing quickly and will continue to increase. With the prevalence of attacks it is imperative that companies ensure they have Cybersecurity processes in place.

Cybersecurity processes are put in place to protect both the individual user and companies as a whole from hackers, cyber criminals, and hacktivists, among others. Not only does a lack of cybersecurity in an organization affect the individual whose personable identifiable information (PII) may have been compromised; the average cost of a data breach to an organization is $6.5 million.

The law governing cybersecurity is developing and is currently a patchwork of state and federal regulations. There is no comprehensive federal law governing cybersecurity.  However, there are many established state and federal laws that govern the financial industry’s use of financial information, as well as laws regarding personable identifiable information, giving TPA’s ample inspiration for best practices to implement and stay ahead of data breaches. TPA’s should ensure protections such as:

  • Technology tools and measures to prevent and detect attacks and data breaches.
  • Detailed processes and procedures to follow when sharing benefits plan and personable identifiable information.
  • Proper authentication processes to ensure everyone accessing information is verified.

With the growing risk of cyber-attacks, we at EJReynolds take client privacy very seriously. In our efforts to protect the financial information provided by our clients and entrusted to our employees, EJReynolds, Inc. offers a Cybersecurity Commitment to give you the comfort and peace of mind when working with us.

Our Cybersecurity Commitment stems from the core principles of trust, integrity and ethics: We collect only client information that is pertinent to the services provided by our team. Thus, we have implemented security standards and processes including physical, electronic and procedural safeguards to ensure that access to client information is limited only to select employees who may need it to do their jobs.

  • Secure file sharing links put in place to provide a safe & secure way to share sensitive information online.
  • Advanced Firewall Security system protects computer networks from being attacked online by hackers, worms, viruses, etc.
  • Use of Advanced Threat Protection (ATP), an industry leading threat protection network used internally to protect from malicious attacks.
  • Two-factor authentication, 2FA, requires the user to have two out of three types of credentials before being able to access an account.

If you have any questions about our services and/or how we protect your information please feel free to contact us.

New Rules for Hardship Distributions in 401(k) Plans

Hardship Distribution Rules Relaxed

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 it is anticipated those regulations will be finalized in early 2019.

What is changing?

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, participants will be able 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 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 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.

The proposed regulations provide flexibility in implementing these changes, though. For 2019, plan sponsors have the option of imposing the 6-month suspension period, or they can permit participants to continue to defer immediately following a hardship distribution.

Additionally, for hardship distributions made during the last 6 months of 2018, plan sponsors can either continue the 6-month suspension period or resume deferrals for all participants effective January 1, 2019.

For hardship distributions made on or after January 1, 2020, however, 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.  There are special rules, however, 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. We are hopeful the IRS will issue additional guidance on this important point in the final regulations.

How can I learn more about these requirements?

Please contact us to learn more about how these rules impact your plan and participants!