Missed the 401(k) Restatement Deadline? Here’s Your Plan B for Compliance

The deadline for restating a 401(k), profit sharing, or money purchase pension plan has come and gone.  So, what can an employer do? It was, after all, the employer’s responsibility to ensure that the plan was updated and signed by July 31, 2022.

But if an employer did miss that deadline, there is a Plan B. But first let’s put July 31, 2022, into context. That’s the date the IRS required pre-approved plans to be updated for the last 6 years of legislative and regulatory changes.

It’s referred to as a “Cycle 3 restatement” in the retirement plan world and allows the employer to have “reliance” that the document meets the current requirements of the law and regulations. Here is a link to our FAQs from last year that will bring you up to date.

So what’s the impact on an employer’s plan that didn’t restate its plan by the July 31, 2022 deadline? It’s a good news-not so-bad news situation.

The good news is that the IRS does not consider that the failure to timely restate the plan will itself disqualify it from favorable tax treatment.

The not-so-good news is that the failure transforms that pre-approved plan into an individually designed plan upon which the employer can no longer rely as a qualified plan. The Plan B mentioned above would be for the employer to adopt corrections under the IRS Self-Correction Program and consider whether to obtain formal approval through its Voluntary Correction Program.

You may be wondering if there is a Plan B, is there also a Plan C? Not exactly, and it’s certainly not voluntary. It’s the IRS’ Audit Agreement Closing Program (“Audit CAP”) which is the end result of a plan audit. If the IRS finds the plan to be non-compliant, the employer would be required to submit an updated plan to avoid disqualification. The cost of which would be significantly more than if the missed deadline was dealt with on a voluntary basis.

The takeaway should be obvious: Contact them before they contact you.

Photo Credit: © Can Stock Photo / bdspn

Rethinking 401(k) Plan Success: The power of deferral rates

From the beginning of 401(k) plans, the retirement industry has focused on the performance of individual funds as the key driver of retirement readiness. But a study by the Putnam Institute in 2006 and repeated in 2012 concluded that increasing deferral rates have the greatest potential impact on a 401(k) participant’s account balance at retirement

The Putnam Study, Defined Contribution Plans: Missing The Forest For The Trees?, showed that fund selection was actually the least important factor compared to asset allocation, account rebalancing, and increased deferrals. The most important? Increasing deferral rates.

Putnam arrived at this conclusion by simulating different portfolios of mutual funds in a hypothetical, but typical, 401(k) plan. Here is how the study can be viewed from a plan sponsor’s perspective:

Plan Activity Time Spent Relative Importance
Selecting Funds Most Least
Allocating Assets More Lesser
Rebalancing Accounts Lesser More
Increasing Deferral Rates Least Most

One way – maybe the best way – to increase deferral rates is through auto-enrollment and auto-escalation. Congress thinks so. As part of the recently passed SECURE 2.0 employees are automatically enrolled in a 401(k) plan at 3% of compensation. The amount is increased each year by 1% up to at least 10% but not more than 15% of the employee’s compensation. There’s a plus for the employer: tax credits may be available. 

Photo by Dino Reichmuth on Unsplash

Why a one-size-fits-all approach to 401(k) plans doesn’t work

Because there are now five generations in the workforce for the first time:

  • Traditionalists—born 1925 to 1945
  • Baby Boomers—born 1946 to 1964
  • Generation X—born 1965 to 1980
  • Millennials—born 1981 to 2000
  • Generation Z—born 2001 to 2020

The challenge to create and provide a 401(k) plan is arguably more difficult now than it ever was.

401(k) plans are part of the big picture which includes dealing with such questions as

  • What kinds of challenges are present for today’s employers?
  • How do generational workforce differences affect our ability to manage people effectively?
  • What are the traits, beliefs, and life experiences that mark each generation, influencing how they work, communicate, and respond to change?

Dr. Bea Bourne, DM, is an expert on generational differences and generational responses to organizational change. She is a faculty member in the School of Business and Information Technology at Purdue University Global. In the infographic that follows, she shares her research regarding:

  • How today’s talent stacks up by generation, including their defining values, beliefs, and worldviews
  • The significant historical events that shaped each generation
  • How to best motivate and manage workers from each generation

In the 401(k) and 403(b) world, we’ve got a tool. It’s called Plan Design and it’s been significantly enhanced by the recently passed SECURE 2.0 legislation. There will be more about that to follow as IRS guidance and recordkeeper platform capabilities develop.

In the meantime, here’s that infographic:

“Compensation” for Sole Proprietors, Partners, and LLP Members … It’s complicated.

“Compensation” is a timely topic now for employers with retirement plans. It’s that time of the year when decisions are made about retirement plan contributions. The starting point for those decisions is “compensation”.

That starting point is a straightforward matter when employees are involved. It’s some variation of taxable wages reported on Form W-2.

But for sole proprietors, partners in a partnership, or members of a limited liability partnership, compensation is more complicated. It’s “Earned Income”, the Internal Revenue Code’s version of a calculus equation. Here’s why.

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The box that has to be checked by July 31: Retirement Plan Restatement

That’s the box that has to be checked by July 31, 2022. It’s the date the IRS requires that your 401(k) plan, profit sharing plan, or other defined contribution plan be restated to be in compliance with recent tax law changes. Here is a plain language explanation in Q and A format to help you understand why July 31 is one of those “don’t miss” dates: Continue Reading

July 31, 2022 Restatement Deadline for 401(k) Plans Approaches: Carpe Diem

I never thought my high school Latin could come in handy, let alone in our ERISA world. Heck, there wasn’t even ERISA back then. But here goes.

The July 31, 2022 deadline for defined contribution plans such as 401(k), Profit Sharing, ESOPs, and Money Purchase Plans to be restated is not that far away. You’ll find the details here.

If you miss the deadline to restate your qualified retirement plan, the IRS can disqualify it, and take away all its tax benefits. This means contributions might not be deductible or employees will have them immediately included in income. Therefore, restating your document should be a high priority. The IRS does provide a “late adopter” procedure for employers who missed the deadline to requalify the plan. However, IRS User Fees and additional professional fees make the late adopter procedure substantially more expensive than restating the plan before the deadline.

Now here’s where the Carpe Diem, or Seize the Day!, part comes in. The Restatement will update the plan for all law changes since the last Restatement six years ago.

The 401(k) industry hasn’t stood still either. In the recent years, there have been plan design enhancements, technology improvements, fund changes, provider consolidations, more effective employee communication tools, etc., etc.

Use the required Restatement process as an opportunity to see if you can make your plan better.

Picture Credit: © Can Stock Photo / blasbike

ERISA Record Retention: How long is long enough?


ERISA record retention may not be of those sizzling retirement plan topics for some folks. But please don’t stop reading.

It’s an important issue in today’s ERISA’s environment in which Plan Administrators and other fiduciaries must meet complicated compliance reporting requirements, oversight from regulatory agencies, and sometimes litigation.

So here is some basic information about document retention for ERISA plans in a Q and A format.

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IRS now requires an employer discretionary match to be “definitely determinable”

“Definitely Determinable” is one of those pre-ERISA concepts that are still applicable. It means that in order for a retirement plan to be considered “qualified” (eligible for favorable tax treatment), a participant’s retirement benefit had to be determined in accordance with a stipulated formula that is not subject to the discretion of the employer.

The purpose of which is, of course, to eliminate the possibility of benefits favoring the higher paid employees. It’s long been required for defined benefit pension plans in which it’s a straightforward matter.

But what about those 401(k) plans that provided a discretionary employer discretionary match? Until recently, an employer matching contribution that was discretionary did not have to be stated in the plan document. But now the IRS has taken the position that a discretionary employer match must also be definitely determinable.

Here is what an employer needs to do if its match is discretionary. Continue Reading

The IRS Required Restatement of 401(k) and Profit Sharing Plans: A Plain Language Explanation in Q & A Format

If you’re an employer who has adopted an IRS pre-approved defined contribution plan such as 401(k) or profit-sharing, you’ll need to have the Compliant box checked no later than July 31, 2022.

Plan document compliance to be specific. It’s the IRS requirement that a retirement plan document must be up to date to qualify for favorable tax treatment.

IRS pre-approved plans must be rewritten, reviewed, and approved every six years. Once approved, employers who use them must adopt the new plan documents by a certain date.

This is called the Restatement process, and as noted in the headline, this Restatement is called Cycle 3 with a July 31, 2022 deadline. The Questions and Answers that follow provide a plain language explanation of what you should know about Cycle 3.

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Form 5500: The Body Language of ERISA Compliance

Last month, the  Department of Labor (DOL), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) released advance copies of the 2020 Form 5500 Series. When filed, they will join those of prior years’ morphing into the body language of ERISA compliance. Here’s how:

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