automatic enrollment exception for small businesses

[Santo Gold]

We have a plan sponsor who created a new 401k plan for the business effective 1/1/2023.  Auto enrollment starts 1/1/2025, but they have only 6 participants, so they can be exempt from the automatic enrollment requirement.  However, if/when they exceed 10 participants sometime after 1/1/205, would they then be required to offer auto enrollment?  That would seem to be bulky in a plan document/SPD to have this entire auto enrollment section but include a blurb that its not effective until the company exceed 20 employee.

Thank you

[Bill Presson]

When was the document signed? If before 12/29/22, it meets the exception. 

[Peter Gulia]

If the document that established the cash-or-deferred arrangement was not made before December 29, 2022, consider also:

The statute’s “small businesses” exception refers to ten employees. An employer might have “normally employed more than 10 employees[,]” yet have fewer than ten participants eligible to elect deferrals.

About that exception, there is a lag:

“[Internal Revenue Code § 414A](a) shall not apply to any qualified cash or deferred arrangement . . . earlier than the date that is [one] year after the close of the first taxable year with respect to which the employer maintaining the plan normally employed more than 10 employees.” I.R.C. (26 U.S.C.) § 414A(c)(4)(B) (emphasis added).

If all relevant tax years are calendar years and December 31, 2026 is the close of the first year in which the employer “normally employed” more than ten employees, does § 414A(c)(4)(B) mean that the plan’s eligible automatic-contribution arrangement need not begin until 2028? Or must the EACA begin by December 31, 2027?

This is not advice to anyone.