Tax Credits for Start Up Plans

[ERISAGal]

Are the new start-up plan tax credits only available to employers with less than 50 employees?  I have a restaurant group that wants to start a new plan.  With the new auto-enrollment rules, I would envision them having more than 50 initially.  They have a few hundred with W-2s each year, but only about 40 that are full-time and interested in participating.  They will have to be safe-harbor to pass testing.  Thanks for your insight!  

[Peter Gulia]

Here’s Internal Revenue Code § 45E http://uscode.house.gov/view.xhtml?req=(title:26 section:45E edition:prelim) OR (granuleid:USC-prelim-title26-section45E)&f=treesort&edition=prelim&num=0&jumpTo=true

and § 408(p)(2)(C)(i) http://uscode.house.gov/view.xhtml?req=(title:26 section:408 edition:prelim) OR (granuleid:USC-prelim-title26-section408)&f=treesort&edition=prelim&num=0&jumpTo=true

which defines an eligible employer for § 45E.

The measure is not about participants; it’s about a number of employees who received at least $5,000 in compensation from the employer for the preceding year.

Consider also that § 45E(e)(1) and § 414 include provisions about persons treated as one employer.

If a tax credit might be unavailable, consider whether the participants might bear plan-administration expenses.

[ERISAGal]

Thanks so much!