John Feldt ERPA CPC QPA

Yes, it is a common myth that CB plan sponsors must have some guaranteed income available for the plan for a period of several years.

Okay, thanks. It is a county hospital.

A county government has dual status. Their "403(b)" was in place prior to ERISA. They provide matching contributions, but claim the 403(b) plan is a non-ERISA plan. Is there a grandfather rule that would allow a 403(b) to be non-ERISA even if employer contributions occur? Would it have to be established before ERISA was enacted?

Which is why the OPs question is a good one. Many laws and regulations have a lot of exceptions and exceptions to the exceptions. If the intent of the "universal availability" rule was to exempt the plan from ADP tests, then if such plan has no HCEs, why would the law still require the universal availability requirement to apply? Well of course, as stated above, the answer is because there are no exceptions this time, maybe a 401(k) plan will suit the company better!

CuseFan, can you clarify please? I understand that 1.401(a)(4)-9(c)(4) does not allow a "component" plan to avoid the minimum gateway, as it states the plan is "restructured" - it is not "permissively disaggregated" - so we agree there. Suppose we have a cross-tested 401(k) profit sharing plan with entry after 3 months of service. The OEE rule of 1.410(b)-6(b)(3) allows the employer to "permissively disaggregate" those under 21/1 into a separate plan. Are you saying that the minimum gateway must be provided to all NHCEs in both the over 21/1 "plan" and the under 21/1 "plan" as well?

Thus, no ADP test. If you follow the language in the document for a plan that is written as safe harbor, you essentially only find that the ADP test applies if the plan specifically follows the rules for exiting safe harbor.

I don't recall seeing official guidance on this. 20% seems okay, but 100% would certainly alleviate any concern.

Anyone suggesting that the plan year end, in the document, be changed to "the last day in February", thus the first day of the plan year is always March 1?

Yes, unless they can be excluded under the OEE rule because they are under 21/1. This also assumes this combo is tested on a benefits basis, and none of the gateway exceptions apply: 1) the DB/DC combination being primarily DB in nature under 1.401(a)(4)-9(b)(2)(v)(B), or 2) the DB/DC combo consists of broadly available separate plans under 1.401(a)(4)-9(b)(2)(v)(C) -- neither are very common to see, although the "primarily DB in nature" exception has been useful for me a few times. Also, just a note that if you are using the option to offset the DC minimum required to satisfy the gateway by the value of the accruals in the DB plan - which is available in general on a person-by-person basis, or as an average under 1.401(a)(4)-9(b)(2)(v)(D)(3) - you can't offset the DC minimum for those that are not receiving any accrual in the DB plan, so they get the full gateway in just the DC plan. It states "a plan is permitted to treat each NHCE who benefits under the defined benefit plan as having an equivalent normal allocation rate equal to the average..."

The 457(b) limit is a separate individual limit. All your 457(b) amounts (vested ER and EE contributions, or "annual deferrals") when combined together from all 457(b) plans you participate in are subjected to the individual limit under 457. There is no offset for any 403(b) or 401(k) deferrals anymore. Your 403(b) and 401(k) elective deferrals are subject to the individual 402(g) limit (SIMPLE deferrals go under this too). It is one overall limit for the individual for all such 403(b), 401(k) and SIMPLEs that they participate in for the year. Of course any SIMPLE portion itself also has its own lower limit. I don't remember where SAR-SEP deferrals fall without looking that up, but there's not many of those around anymore. Non-governmental 457(b) plans don't have age 50 catchups, but they can have the special last 3 years catchup to make up for underutilized prior limits when they were in the plan. Again, no offset with 403(g) deferrals or their catch-ups. An age 50 governmental employee can put $24,000 in the 457(b) and another $24,000 in a 401(k) or 403(b), if they are eligible for such plans. Two age 50 catch-ups is correct, yes.

If the 457(b) plan is sponsored by a governmental employer and both the 403(b) and 457(b) plan documents allow for catch-up deferrals, then yes, assuming these are deferrals from compensation that has not yet been received by the employee and that they are not making any other deferrals with any other 403(b), 401(k), or 457(b) plans. The old rules that offset 457 from the 401(k) and 403(b) were for pre-2002 years, if I recall correctly.

What "service" do you benchmark? One where the $700 includes the TPA providing direct written correspondence to the participant, the alternate payee, and each of their attorneys regarding the status of the review, including an option for all of those parties to access the TPA for their questions (instead of bothering the Plan Administrator)? Okay, the fee discussed might still be high even with all of that. But being the direct contact option for calls and emails and other correspondence will add time, not an insignificant amount I am sure, on average (it only takes one messy issue to drive up the average time). Perhaps the PA prefers that service, especially if it frees up their time and also if the fees get charged to the participant account anyway.

Revenue Procedure 2016-51, Appendix A, Section .05(5). It says first to make sure that any "missed deferral" plus all the actual deferrals made for the year, when combined, are not exceeding 402(g) limit, would not cause a violation of the 415 limit, and does not go over any other plan limit. You can't calculate the missed match on amounts that could never have been deferred in the first place. Next look at .05(5)(d). Here it says how to handle ADP/ACP testing. If the plan also failed the ACP test, the correction above can't be used until after the ACP test is corrected. It then states the plan may rely on an ACP test done with respect to the employees that were not impacted by the failure to implement the deferrals properly, and may disregard employees whose elections were not properly implemented. Take a look at it and see what you think.

Mike is right, the terminated with 500 hours rule cannot be applied to someone who is benefiting, it also can't be applied to someone if the plan has no allocation conditions. The one and only way to leave out someone who terminates with under 500 hours is if they received no benefit for the plan year and it was solely because they failed to meet the plan's allocation conditions. Treasury Regulation 1.410(b)-6(f): (f)Certain terminating employees - (1)In general. An employee may be treated as an excludable employee for a plan year with respect to a particular plan if - (i) The employee does not benefit under the plan for the plan year, (ii) The employee is eligible to participate in the plan, (iii) The plan has a minimum period of service requirement or a requirement that an employee be employed on the last day of the plan year (last-day requirement) in order for an employee to accrue a benefit or receive an allocation for the plan year, (iv) The employee fails to accrue a benefit or receive an allocation under the plan solely because of the failure to satisfy the minimum period of service or last-day requirement, (v) The employee terminates employment during the plan year with no more than 500 hours of service, and the employee is not an employee as of the last day of the plan year (for purposes of this paragraph (f)(1)(v), a plan that uses the elapsed time method of determining years of service may use either 91 consecutive calendar days or 3 consecutive calendar months instead of 500 hours of service, provided it uses the same convention for all employees during a plan year), and (vi) If this paragraph (f) is applied with respect to any employee with respect to a plan for a plan year, it is applied with respect to all employees with respect to the plan for the plan year.

The catch-up limit for 2017 is still $6,000, but the 415 limit is now at $54,000. Thus a total of $60,000 is possible in 2017. A catch-up deferral can go above the 415 limit. Note that the owner's wages could be as low as $54,000 and still allow a total of $60,000 if at least $6,000 is done as an elective deferral, but that’s another side topic. So, where is the basis in the law? Let’s look at the law, as passed by Congress, Internal Revenue Code Section 401(m)(1), which states: In general. A defined contribution plan shall be treated as meeting the requirements of subsection (a)(4) with respect to the amount of any matching contribution or employee contribution for any plan year only if the contribution percentage requirement of paragraph (2) of this subsection is met for such plan year. Be sure to look at the term employee contribution – this is a voluntary after-tax contribution. This is not the same as a salary deferral election which is defined as an elective deferral. Thus, employee contributions (same thing as voluntary after-tax contributions) are lumped into the same nondiscrimination bucket as matching contributions. Seems clear. The rest of that section of the law goes on to explain a little about ACP testing with the limitations and it provides for the Treasury Secretary to write regulations (yes, the regulations apply too). So that is the basis under the law. As to all the details, I personally find the regulations to be clear about including after-tax contributions in this test, no ambiguity about that question. Look at Treasury Regulation 1.401(m)-2. Please note that the law has a clause to allow the regulation to interpret the law, and unless the regulation contradicts the law, the regulations are generally treated as having the weight of the law. After-tax contributions have been around for decades, so I have not heard that there was any confusion about this. Who, or where is this confusion stemming from?

Is there any guidance for determining the associated match (ADP refunds also cause match forfeitures/refunds) when the match formula changes during the year? The plan matched per payroll at one rate for the first 6 months, then increased the match somewhat for the next 6 months.

Suppose a plan document was drafted and executed to allow both pre-tax and Roth deferrals, but the sponsor wasn't ready to handle Roth yet internally so the initial enrollment materials did not show that Roth was even available, but the SPD did describe Roth. About 3 months after the plan had been in effect, they communicated that the Roth deferral option was not available to the participants. What do eligible employee participants "get" or what is the correction?

Many times the plan administration system is linked through some database connection to the provisions in plan document. In order to keep things efficient (to keep administrative costs down), it seems reasonable to restate to the new provider's document if that is the case.

Yes, some advisors and plan sponsors have read articles about making voluntary after-tax employee contributions to qualified plans. As pointed out above, these articles leave out some important points. After-tax contributions must be tested for nondiscrimination (the ACP test), even if the plan is a safe harbor 401(k) plan. That means: if zero NHCEs contribute true “after-tax employee contributions”, then the HCEs can only put in $0.00 of after-tax contributions – thus the HCEs all get a full refund back of their after-tax contributions, and if refunded too late, it is subject to a penalty. In my opinion, after-tax employee contributions should be found mainly in: An owner-only plan where the owner’s compensation is low, but the owner is sitting on a pile of cash. The after-tax contribution is needed to reach the 415 limit because the overall deduction limit is 25% of pay. A non-profit entity with no HCEs (or any plan with no HCEs for that matter). Any entity with only HCEs High skill organizations where the “NHCEs” are actually quite highly paid and those NHCEs have average deferrals that are already significantly higher than the deferrals of the HCEs without an after-tax option. Also note that after-tax employee contributions are also part of the general test for nondiscrimination under Internal Revenue Code Section 401(a)(4) – treated like a match or deferral for purposes of the average benefits test. The articles out there almost always leave out the testing problems associated with after tax contributions. They imply that this is a new concept or an obscure loophole, but it’s nothing new as mention above. After-tax has been around for longer than 401(k) plans have been around. I would not recommend including the after-tax provisions in a plan that has the typical NHCE group, but if the Employer really wants it, I recommend the HCEs not use the after-tax feature in its first year. After that first year-end, run the test to show just how much after-tax the HCEs would have been able to keep in the plan. And bill them for your extra time. You might find that some investment providers are pushing an after-tax “emergency fund” idea. The rank and file contribute after-tax and they can withdraw it at any time (yes, after-tax can be withdrawn any time). The downside of this concept is the withdrawal fee. If the distribution fee is perhaps $65 and the NHCE has an after tax balance of $650, well that’s a 10% cost to get the money back. Banks fees are much less than that. In-Plan Roth In contrast to after-tax contributions, In-Plan Roth Rollovers and In-Plan Roth Transfers (Roth conversions) are not subject to the ACP testing described above because they aren’t contributions. If the plan has both In-Plan Roth Rollovers and In-Plan Roth Transfers, the participant can convert all or any portion of their vested pre-tax balance into Roth, including balances from employer contributions, even if they are not eligible for a distribution. The IRS actually has a nice explanation of the details. https://www.irs.gov/Retirement-Plans/Designated-Roth-Accounts-In-Plan-Rollovers-to-Designated-Roth-Accounts Here is a case study with after-tax: S. Corp Owner/employee: Age 51 Eligible W-2 compensation: $60,000 Plan type: 401(k) only – owner only plan – no other employees Assume the owner’s reasonable compensation is only $60,000 (W-2 compensation). Perhaps additional income is also provided from S Corp dividends, but that can't count for plan compensation purposes. The deduction limit is 25% of $60,000, or $15,000. However, the 415 contribution limit for 2017 is $60,000 (the lesser of 100% of pay or $54,000, plus catch-up deferrals). Even with elective deferrals included, the maximum pre-tax contribution available is only $39,000 ($24,000 + $15,000), leaving $21,000 of the contribution limit unused (see figures below). By adding an after-tax contribution option, this business owner now has the ability to put more money away for retirement in the 401(k) plan by utilizing the entire 415 limit including catch-up deferrals. You'll have to scroll, probably, to see the figures below to the right, but its $24,000 deferral, $15,000 profit sharing, and $21,000 after-tax. Elective Deferral (includes $6,000 catch-up): $24,000 Employer Profit Sharing (limited to 25% of pay): $15,000 After-tax Contrib. (can convert to Roth): $21,000 Total Contributions: $60,000 I hope this helps.

They could have executed an amendment to adopt prior year testing with the 3% option, but the signature execution deadline was the last day of the first plan year.

$300 applies if you are only correcting loans for these 10 participants and no other plan errors. It's $300 even if you don't use any of the standard correction checkboxes for your method for fixing the loan.

February 5

IRC 412(d)(2) does not allow a plan sponsor to violate IRC 411. I suppose you could ask the Secretary of Treasury if they will allow you to reduce the benefit.

An unforeseeable emergency is not the same as a hardship. Thus, a distribution due to unforeseeable emergency does not mean the hardship rules are invoked. However, as noted above, check the terms of your plan documents to make sure you are following its terms. If there is no requirement to stop deferrals in the document, then how will you justify the stopping of deferrals?

A SIMPLE has an exclusive plan requirement under Treasury Regulation1.401(k)-4(c): (1)General rule. The SIMPLE 401(k) plan must be the exclusive plan for each SIMPLE 401(k) planparticipant for the plan year. This requirement is satisfied if there are no contributions made, or benefits accrued, for services during the plan year on behalf of any SIMPLE 401(k) planparticipant under any other qualified plan maintained by the employer. Other qualified plan for purposes of this section means any plan, contract, pension, or trust described in section 219(g)(5)(A) or (B). The entities you describe almost certainly are one affiliated service group and are therefore treated as one single employer, and if they have a SIMPLE anywhere, everyone must be eligible and no other plan can be in place. If another plan is established by an employer in the group, it invalidates the SIMPLE contributions made for that year.