Peter Gulia

A caution for others who might do one or both sorts for who might be § 414(v)(7)-affected: An employee who’s 49 at the beginning of a year might turn 50 by the end of the year.

If a portion of the settlement might be “back pay” for wages (or, arguably, self-employment income) that would have happened had the claims complained-of not happened, there might be some opportunities for applying a participant’s elective-deferral election, matching or nonelective contributions (to the extent the plan provided), and years of service (possibly for eligibility, benefit accrual, and vesting). “Back pay. Payments awarded by an administrative agency or court or pursuant to a bona fide agreement by an employer to compensate an employee for lost wages are compensation within the meaning of section 415(c)(3) for the limitation year to which the back pay relates, but only to the extent such payments represent wages and compensation that would otherwise be included in compensation under this section.” 26 C.F.R. § 1.415(c)-2(g)(8) https://www.ecfr.gov/current/title-26/part-1/section-1.415(c)-2#p-1.415(c)-2(g)(8). But the details of how to write the settlement agreement; how to allocate amounts to particular plan, limitation, and tax years; and how to time and document elections are tricky. And there are other employee-benefits issues. If your client does not have a regularly engaged employee-benefits lawyer or that lawyer wants to add one who is specially knowledgeable for this situation, Bradley Horne (Super Lawyers Rising Stars: 2024, 2025, 2026) at Smith & Downey has a developed knowledge of how to handle the retirement, health, and other employee-benefit plans’ aspects regarding settlements of employment-related disputes. https://www.smithdowney.com/professionals/bradley-j-horne/

BenefitsLink neighbors can tell us if I’m guessing wrong, but I guess the conventional approach is to treat the plan as having the provision needed to tax-qualify the § 401(k) arrangement, then recognizing a failure to administer that assumed-in provision as an operational failure.

Jakyasar seems to describe a situation in which, at least for 2026, no participant will be constrained to make age-based catch-up contributions as Roth contributions because no participant will have had 2025 Social Security wages more than $150,000. BenefitsLink mavens, if the plan sponsor is confident no participant will be § 414(v)(7)-constrained to make catch-up deferrals only as Roth contributions, do you think it’s safe for such a plan sponsor to omit a Roth-contribution provision?

My observation was only about what tax law tolerates for when the § 414A-needed automatic-contribution provisions must be stated in what tax law imagines as “the” written plan. Among the conditions of the legal fiction of the remedial-amendment period is that “the plan or contract is operated as if such [delayed, but retroactive] plan or contract amendment were in effect[.]” SECURE 2022 § 501(b)(2)(A). So, a plan’s administrator must administer the plan according to the administrator’s prudent assumption about what the later-amended plan is deemed to have provided retroactively. If that didn’t happen, pursue corrections. For a convenient reference to C.B. Zeller’s pointer, my note above cites Notice 2024-2 and gives the particular hyperlink. (Because the IRS ended printing the weekly Internal Revenue Bulletins, https://www.irs.gov/irb is the official source.) This is not advice to anyone.

As Bri suggests, Read The Fabulous Document; it might state provisions narrower than what might be provided without contravening ERISA or tax-disqualifying the plan. The IRS’s “LRM” guidance to sponsors of IRS-preapproved documents recognizes that an involuntary distribution might not be paid immediately after a participant’s severance-from-employment because the account then is more than the plan’s threshold, but might later be paid as an involuntary distribution because the account becomes less than the plan’s threshold. (I express no view about whether the IRS’s interpretation comports with applicable or relevant law.) Consider that a plan’s sponsor (or a plan’s administrator, or both) might prefer that the plan’s administrator lack discretion about when to direct an involuntary distribution. And consider that whatever provision is set, the plan’s administrator must obey the documents governing the plan (unless a provision is contrary to ERISA’s title I). This is not advice to anyone.

Many § 403(b) plans lack a service provider that’s obligated to inform the charity about a perception or suspicion that the plan’s elective-deferral arrangement does not meet § 414A.

Internal Revenue Code § 414A(a)(1) provides: “[A]n arrangement shall not be treated as a qualified cash or deferred arrangement described in section 401(k) unless such arrangement meets the automatic enrollment requirements[.]” A plan might be amended to remove automatic-contribution provisions if the plan is amended to omit an elective-deferral arrangement. But how many plan sponsors want a plan only for an employer’s nonelective contributions?

If the plan was not established before December 29, 2022 (or the plan’s elective-deferral arrangement began on or after December 29, 2022), the plan is neither a governmental plan nor a church plan, and neither the new-employer nor the small-employer exception applies: Are you sure there is, for tax-treatment purposes, a plan-document failure? If the plan provides an automatic-contribution arrangement because the employer presumes it will amend, retroactively, the written plan to meet Internal Revenue Code § 414A’s tax-treatment condition, shouldn’t such an amendment be within Congress’s (SECURE 2022) and the IRS’s remedial-amendment period? IRS, Miscellaneous Changes Under the SECURE 2.0 Act of 2022, Notice 2024-2, 2024-2 I.R.B. 316, 332-333 (Jan. 8, 2024), at Q&A-J1., https://www.irs.gov/pub/irs-irbs/irb24-02.pdf.

For anyone who might help cheersmate reason through those questions, here’s the final rule: https://www.govinfo.gov/content/pkg/FR-2025-09-16/pdf/2025-17865.pdf. The rule paragraphs cheersmate mentions [26 C.F.R. § 1.414(v)–2(b)(2)-(3)] are on page 44549 [page 23 of 27 in the pdf].

Scrambled Eggs Super! https://seuss.fandom.com/wiki/Peter_T._Hooper Sometimes we might regret that the IRS’s inflation-adjustment notices do not show the Consumer Price Index measures used, and do not show the arithmetic.

If the plan (including loan policy or procedure made under the plan) imposes no restriction or condition beyond those needed to meet tax law: Internal Revenue Code § 72(p)(2)(B)(ii): “Clause (i) [limiting a loan’s term to five years] shall not apply to any loan used to acquire any dwelling unit which within a reasonable time is to be used (determined at the time the loan is made) as the principal residence of the participant.” Many plans’ administrators’ process claims for a participant loan accepting the claimant’s statements, made under penalties of perjury, on a paper or electronic claim form. A claim form often had been designed to paraphrase text from the statute, regulations, or both. This is not advice to anyone.

And Lethal Weapon.

Thank you for the pop-culture reference to Better Off Dead.

The bonus plan you described is somewhat similar to many banks’ and securities broker-dealers’ bonus plans. You didn’t mention restricted stock, and your employment condition might be shorter than some others. (About who invented what, I won’t comment on Wall Streeters’ designs of these arrangements. Smith Barney, now absorbed into Morgan Stanley, was a Citigroup subsidiary during my inside-counsel work for them.) At least one court found that what some securities broker-dealers consider a usual bonus plan is an ERISA-governed pension plan. Shafer v. Morgan Stanley, No. 20-cv-11047-PGG, 2023 WL 8100717 (S.D.N.Y. Nov. 21, 2023), writ denied and appeal dismissed, 2025 WL 1890535 (2d Cir. July 9, 2025); Shafer v. Morgan Stanley, No. 20-cv-11047-PGG, 2024 WL 4697235 (S.D.N.Y. Nov. 5, 2024). See also Tolbert v. RBC Capital Markets Corp., 758 F.3d 619 (5th Cir. 2014); Paul v. RBC Capital Markets LLC, 2018 WL 784577 (W.D. Wash. Feb. 8, 2018). There are also court decisions that interpret the law and facts differently. An employer might want its lawyers’, including an ERISA lawyer’s, advice on all compensation arrangements. And about governing-law and exclusive-forum clauses in all arrangements, including bonus plans.

It’s not fully accurate to say no compensation is deferred. What is or isn’t a deferral for one or more purposes of Internal Revenue Code § 61, § 83, § 409A, or § 451 does not necessarily control what might be “a deferral of income” within the meaning of ERISA § 3(2)(A). Some might look to tax law to put meaning on a word or phrase in ERISA’s title I, but some might not. Considering your hypothetical example, some might say there was a deferral for only one month—from when the bonus became no longer conditional to when it’s payable or paid. But others might say the bonus was substantially earned based on the work done in 2025, and then is deferred, subject to a condition, until about three years later. Also, might an employee leave her job promptly on collecting a bonus payment? Could that result a deferral, however short, “extending to the termination of covered employment[.]” Until one reads the available court decisions and thinks through the modes of analysis, a prediction about what a court generally, a particular court, or a particular judge would decide might be grounded on little more than instinct. (It’s even harder to predict what an arbitrator might do.) I don’t say anything about what’s a right or wrong interpretation or application of the statute. Rather, I say only that courts (and arbitrators) might differ in how one interprets the statute, or might differ in how one applies an understanding of the statute to a particular set of facts, or both. If I were dealing with a real client, I’d uncover the facts (including some beyond what my client thinks is relevant), do the legal research, and say what I think. And I wouldn’t be afraid to state a conclusion. I might feel that law ought not to treat a bonus plan as a pension plan. But I wouldn’t let my view about what law ought to be cloud my professional responsibility to provide careful advice. This is not advice to anyone.

The counterparties’ dispute is about whether a plan “(i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond[.]” ERISA § 3(2)(A). If what Morgan Stanley Smith Barney calls a bonus plan is such an ERISA-defined pension plan and the plan is not sufficiently limited to a “select group”, the plan is governed by ERISA’s funding and vesting provisions. Here’s the Bakers’ posting of a complaint that asks the Federal court for the Southern District of New York to vacate the advisory opinion as contrary to law and contrary to the Labor department’s procedure. https://benefitslink.com/src/ctop/sheresky-v-chaves-deremer-sdny-complaint-10282025.pdf That court previously found that the Morgan Stanley Smith Barney plan is ERISA-governed. Even if no court vacates EBSA’s advisory opinion, no court or arbitrator need follow it, and some might not be persuaded by EBSA’s interpretation or reasoning.

Considering § 414(v)(2)’s subparagraphs (B), (C), and (E), there are multiple possible interpretations about how the several expressions interact or don’t. https://www.taxnotes.com/research/federal/usc26/414?highlight=414 With three, four, or more possible reasonings, one could defend $11,250 or $12,000. Many of us are reluctant to advise a client to use or communicate an amount other than the one the IRS eventually will publish. If the current Antideficiency Act shutdown ends soon, we might get the IRS’s prepublication release before Thanksgiving Day.

Brian Gilmore, thank you for your continuing generosity in teaching health plans and cafeteria plans to the many of us who don’t work in those fields. Now that Internal Revenue Code § 125 is a 47-year-old, some might wish the Treasury department would do more than proposed interpretations. (You’re right to remind us that some IRS people might act following proposed rules as if they were rules.) Like Belgarath, I don’t work with cafeteria plans. And it’s inconvenient to look up something that, because it’s only proposed, does not appear in the Code of Federal Regulations. The -7(b)(1) text you quote describes a situation in which a cafeteria plan does not discriminate in favor of highly-compensated individuals. But the sentence does not say meeting its conditions is the only way to not discriminate. Is there more text in the proposed rule that describes when a plan does discriminate in favor of highly-compensated individuals? I seek to learn not to become a cafeteria-plans expert but rather so I or a practitioner I advise doesn’t miss a step in designing or administering a retirement plan. For retirement plans, there are situations for which no one states in a plan’s governing documents or otherwise elects a top-paid-group election because that election is unneeded for the plan one designs or administers. If one interprets § 125 to look to § 414(q) to find who’s a highly-compensated individual, the § 414(q) rule suggests that an employer might prefer that its retirement plan state an otherwise unneeded top-paid-group election to remove a doubt about whether “[t]he elections . . . [are] provided for in all plans of the employer and [are] uniform and consistent with respect to all situations in which the section 414(q) definition is applicable to the employer.” 26 C.F.R. § 1.414(q)-1(b)(2)(iii). If a plan intended as a cafeteria plan might fail to meet a condition for § 125 tax treatment because of a lack of nonhighly-compensated individuals, that’s a point a retirement-plans practitioner might want to be aware of. This is a little more than an abstract curiosity. There are some employers for which every employee has compensation no less than $160,000. Brian Gilmore, we’d welcome more of your generous teaching.

But if an employer has not made a top-paid group election for any employee-benefit plan and all employees are classified as “highly compensated” within the meaning of Internal Revenue Code § 125(e)(1)(C), does this mean a § 125 plan does not discriminate “in favor of” highly-compensated participants or individuals because there are none other?

Paul I, thank you for this. For BenefitsLink readers, here’s the Bakers’ post of the complaint: https://benefitslink.com/src/ctop/arechiga-v-ibm-sdny-complaint-10312025.pdf A method I suggest for some (not all) situations is a composite of indexes, but it: sets the weights not according to allocations of a fund’s current investments but on the fund’s previous legally effective declaration of the fund’s asset-allocation targets; and affirmatively discloses every index (each widely recognized and used) and the weight of its asset-allocation category in the composite. A plan’s fiduciary should get its lawyer’s advice, and should get advice from one or more investment advisers that are independent regarding the investment choices to be evaluated. (A small plan’s fiduciary might omit one or both aspects of advice if the expense would be disproportionate to the incremental advantage that could be obtained through better informed decision-making.) This is not advice to anyone.

The Internal Revenue Service has neither published nor released inflation-adjusted amounts for retirement plans for 2026. Based on recent political news suggesting a potential end to the current application of the Antideficiency Act, some hope the IRS release (not the publication in the Internal Revenue Bulletin) happens by November’s end. Consultants that have published unofficial calculations concur that a participant is a § 414(v)(7)-affected individual for 2026 if her 2025 Social Security wages were more than $150,000.

First, consider what provisions the documents governing the plan state. RTFD, Read The Fabulous Documents. But next, consider that a plan’s administrator often interprets a plan’s documents to anticipate provisions that might become retroactively applicable by a remedial amendment. RTFD, Read The Future Documents. Further, some plans’ administrators interpret the current documents, the anticipated documents, or both not strictly for what either text states but rather for what makes sense to fit with the Internal Revenue Code and sensible interpretations of it, including the Treasury department’s legislative and interpretive rules (to the extent a rule is not contrary to law). Yet, one should not discern a plan’s provision by looking only to the tax Code and regulations. A required beginning date and a minimum distribution can vary not only with: whether the plan mandates a distribution sooner than a § 401(a)(9) required beginning date. whether the plan allows or precludes periodic payments; whether the distribution is (or is not) an annuity, or life-expectancy payments; whether the beneficiary is the participant’s surviving spouse or someone else; whether the beneficiary is an eligible designated beneficiary; but also with which optional provisions the plan states or omits (or is deemed to state or omit); and which elections the plan permits or precludes. 26 C.F.R. § 1.401(a)(9)-3(c) https://www.ecfr.gov/current/title-26/part-1/section-1.401(a)(9)-3#p-1.401(a)(9)-3(c). Remember, that a plan could state a provision without tax-disqualifying the plan does not by itself mean that the plan does have that provision. This is not advice to anyone.

The Joint Committee on Taxation’s “bluebook” explanation of 2021-2022 Acts suggests JCT’s assumption that Congress intended the inflation-adjusted amount for a 60-63 participant is 150% of the inflation-adjusted amount for an age 50 participant. See page 332 (the last two sentences of the “explanation of provision”) and footnote 1505. I attach a pdf of pages 331-332. Joint Committee on Taxation, General Explanation of Tax Legislation Enacted in the 117th Congress [JCS–1–23] (Dec. 2023), available at https://www.jct.gov/publications/2023/jcs-1-23/. The explanation cites no document or other source as support for an assumption Congress intended something other than the statute’s text. A textualist interpreter might say Congress cannot have an intent other than the enacted text. It’s unclear whether the IRS will indulge or refuse JCT’s assumption, or find another way to interpret the statute’s text. JCT explanation of age 60-63 catch-up.pdf

For an age 60-63 catch-up, is 2026’s inflation adjusted amount $12,000 or $11,250? On the day the Bureau of Labor Statistics released September’s Consumer Price Index measures: John Feldt said $12,000. https://benefitslink.com/boards/topic/80106-2026-cola-projection-of-dollar-limits/#comment-354029 Mercer said $12,000. https://www.mercer.com/insights/law-and-policy/mercer-projects-2026-retirement-plan-limits/ But Milliman said $11,250. https://www.milliman.com/en/insight/2026-irs-limits-forecast-final-estimates Can smart BenefitsLink people resolve which is correct? Here’s the adjustment rule [I.R.C. § 414(v)(2)(E)(i)]: (E) Adjusted dollar amount. For purposes of subparagraph (B), the adjusted dollar amount is — (i) in the case of clause (i) of subparagraph (B), the greater of — (I) $10,000, or [and] (II) an amount equal to 150 percent of the dollar amount which would be in effect under such clause for 2024 for eligible participants not described in the parenthetical in such clause[.]