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Hi to All, We have a plan drawn up by a local ERISA attorney that is a tribal non-ERISA 401(k) plan. One of the participants routinely exceeds the 402(g) limit by about $1,300 each year. We bring it to the attention of the plan administrator and ask them politely to please monitor this carefully and stop doing it, but we are ignored. If this was a regular corporate 401(k) plan of any of our other clients covered by ERISA, we would get in touch immediately upon the discovery of the error and let them know that the excess plus earnings has to be removed. We haven't done that so far with this client because they are a tribal entity, the plan isn't covered by ERISA, and we don't know to what extent they have to follow the rules. Does anyone else have any experience with this or insight as to how to handle it? Thank you as always.

Participant X is in two 401(k) plans for 2019. He is less than 50 years old. In plan A he defers $10,000 in 2019. In plan B he defers $10,000 in 2019. In plan A, he is an HCE. The plan fails ADP testing and he is refunded $1,000. Has he violated 402(g) for 2019?

Suppose employee X works 1/1 through 6/30 for employer A and defers the 402(g) limit in employer A's 401(k) plan, then goes to work for employer B and defers the 402(g) limit in employer B's 401(k) from 7/1 through 12/31 of same year. Assume employee X does not take steps to have any portion of the deferrals for the year from either plan distributed to him/her by the April 15 of the following year. If both deferral episodes were pre-tax, then the IRS aggregates the amounts from the W-2 data it gets from employers A and B with respect to employee X , includes the excess in employee X's gross income, and adjusts employee X's 1040. Because the amounts were allocated to employee X's pre-tax account in both employer A's and B's 401(k) plans, when they are later distributed (presumably, with earnings), it's reported as taxable on employee X's 1099-R's, so you have the archetypal double tax that you can only avoid by utilizing the process to have the excess deferrals distributed (notifying the plan(s) by April 15 of following year), which in this example employee X did not do. But what if employee X had elected Roth elective deferrals for the amounts under both plans? The amounts are already reported in employee X's W-2's as gross income, so there should be no adjustment to his/her 1040. To the extent there is asymmetry in the treatment of pre-tax vs. Roth excess deferrals, seems like what the IRS would need to do is notify the employer that the excess Roth deferrals had been made and that those should be moved by the employer, as plan administrator, with earnings, out of the employee's Roth account and into his/her pre-tax account. But boy, that would be complicated and I have not seen anything explaining the requirement to do this. There is an example on page 19 of the current W-2 instructions that involves an excess Roth deferral under a plan of a single employer, but it doesn't touch the administrative issue that exists where the Roth elective deferrals occurred under plans of different employers. IRC sec. 402A(d)(3) pretty clearly says that employee X is going to be taxable on the amounts attributable to the excess deferrals, but how are the administrators of employer A's and B's plans going to know to report as taxable? Is employee X simply on his/her honor? (Both to do the right thing and to study tax law in the evenings so he/she will even understand this?) Maybe there is a clear answer to this and I've just been out of the loop on the issue, but I am puzzled about it.