Flexible Safe Harbor Plan Options for 2020 and Beyond

As 2020 winds down, it is time to start thinking about annual compliance testing! One of the more intractable pieces of the testing puzzle each year is the ADP (Actual Deferral Percentage) Test. The SECURE Act, which was passed into law in December 2019, added some new options to help plan sponsors comply with the ADP Test.

The ADP Test

The ADP Test is a test that is used to demonstrate that 401(k) plans do not discriminate in favor of Highly Compensated Employees (HCE). The test looks at the 401(k) contribution rate for each employee, determined on an annual basis, then takes the average of the contribution rates for the highly compensated and non-highly compensated employee groups. If the average for the HCE is greater than the average for the non-HCE by more than a certain amount, the test fails.

A failed test is generally corrected in one of two ways: either the employer can make additional contributions (known as Qualified Non-Elective Contributions or QNECs) to the non-HCEs’ accounts to bring up the average for that group, or the HCEs can take refunds of a portion of their contributions for the year. QNECs can be prohibitively expensive, depending on the size and contribution rates of the non-HCE group, and refunds are detrimental to HCEs’ retirement savings.

Another non-discrimination test, the ACP test, is similar to the ADP test except that it tests employer matching contributions, rather than employee deferral contributions.

Safe Harbor 401(k) Plans

What makes the ADP Test particularly irksome is that since it is based on employee contribution rates, and because employees can generally start, stop, or change their contributions at any time, it is often difficult, if not impossible to know what the outcome of the test will be in advance, and therefore to plan for it. Rather than face this uncertainty each year, some plan sponsors choose to adopt a safe harbor plan design which allows them to automatically satisfy the ADP test, in exchange for making safe harbor contributions to the employees’ accounts. Safe harbor plan designs come in two varieties: a safe harbor match (or “SHMAC”), where the employer makes a contribution to those employees who defer into the plan, and a safe harbor non-elective (or “SHNEC”) where the employer makes a contribution to all eligible employees, even those who were not contributing themselves. A SHMAC is typically capped at 4% of the employee’s compensation, whereas the SHNEC is generally equal to 3% of compensation.

A major limitation of safe harbor plan designs is their inflexibility. Merely making the contribution is not enough; the plan administrator must also provide a notice to participants before the beginning of the year stating their commitment to provide the contribution. Since the notice must be provided before the beginning of the year, it would make it impossible for a non-safe harbor plan to decide that they want to become a safe harbor plan after the beginning of the year. On the other hand, if the sponsor of a safe harbor plan decides during the plan year that they no longer wish to have a safe harbor plan, they may only terminate the safe harbor under certain limited circumstances.

The SECURE Act, which was passed into law in December of 2019, offered some welcome flexibility to sponsors of safe harbor non-elective plans. Section 103 of the SECURE Act does two things: first, it eliminates the notice requirement, and second, it allows plan sponsors to add SHNEC provisions to their plans not just mid-year, but even retroactively after the end of the year, by increasing the employer contribution to 4%.

Notice Requirement

The requirement to provide a notice was eliminated, but only with respect to safe harbor non-elective plans, and only to the extent the safe harbor is being used to satisfy the ADP test. If the plan sponsor wishes to use the safe harbor non-elective contribution to satisfy the ACP test, because they are making a discretionary matching contribution, then the advance notice is still required. SHMAC plans were not affected by this change and must continue to provide the notice.

Plan sponsors may wish to continue providing the notice on an annual basis, even if it is no longer required. As mentioned, providing the notice allows the sponsor to make a matching contribution without being subject to the ACP test. Providing the notice also gives the sponsor an opportunity to revoke the plan’s safe harbor status mid-year, should they wish to do so, without the need to be operating at an economic loss. Furthermore, the timing of the notice aligns with the timing of other required notices, such as the QDIA notice, so continuing to provide the safe harbor notice should not place too much additional burden on plan sponsors.

Retroactive Safe Harbor Amendment

The ability to decide, up until 30 days before the end of the plan year, whether or not to have a SHNEC for the current year has always existed via the so-called “Conditional SHNEC” in which the sponsor provides a notice (sometimes called the “maybe” notice) before the beginning of the year informing participants that the plan might be safe harbor, then follows it up with a supplemental notice before the end of the year that contains the final decision. The SECURE Act did away with the need for the “Maybe” notice (although sponsors may still wish to provide it, for the reasons mentioned earlier), but the more interesting effect of this new rule is that it allows even a plan which did not contain any safe harbor provisions at all to become a SHNEC plan. The added flexibility will be especially appreciated by sponsors who experience a change in plan demographics or contribution patterns which causes them to unexpectedly be in danger of failing the ADP test.

Perhaps the biggest change to come out of section 103 of the SECURE Act is the all-new ability to adopt SHNEC provisions within 30 days of the end of the year, all the way up until the last day of the following plan year. This deadline to retroactively adopt SHNEC provisions is the same as the deadline under the 401(k) regulations to make a QNEC that will count towards the ADP test, or to refund excess contributions. In other words, adopting retroactive SHNEC provisions gives plan sponsors a new way to correct a failed ADP test. In many cases, a 4% SHNEC can turn out to be less costly than a QNEC. Contributions made to satisfy a SHNEC may also be used in the plan’s 401(a)(4) test, to help satisfy nondiscrimination of the plan’s profit sharing contribution, whereas QNECs may not be included in the 401(a)(4) test.

Mid-Year Changes Affecting HCEs

Back in 2016, the IRS issued guidance on what types of changes may and may not be made to safe harbor plans mid-year. Among the restrictions is a prohibition on any amendment that reduces the group of employees eligible for a safe harbor contribution. What was not clear, however, was how this applied to any HCEs covered by a safe harbor plan. Because a plan is permitted to, but is not required to provide safe harbor contributions to HCEs, it would stand to reason that since the contributions to HCEs are not required in order for the plan to have safe harbor status, it should be permissible to suspend those contributions without jeopardizing safe harbor status. However, if the plan defines the contributions to HCEs as safe harbor contributions, then suspending them for any group of employees, even HCEs, might violate the mid-year amendment rule.

IRS notice 2020-52, while mostly focusing on relief related to the COVID-19 pandemic, also provided clarification on this topic. The notice states clearly that, for purposes of the 2016 rules, contributions made to HCEs are not included in the definition of safe harbor contributions. Therefore, a mid-year amendment to suspend safe harbor contributions to HCEs would be permissible under those rules. The 2020 notice did point out, however, that if the employees were provided with a notice stating that HCEs would receive a safe harbor contribution, and if after the amendment that notice is no longer accurate, then an updated notice must be provided.

Safe Harbor plan designs are a great way for employers to offer the advantages of a 401(k) plan to their employees, while being able to meet their obligations under the ADP test in a straightforward way. The new flexible safe harbor options under the SECURE Act add another tool to the compliance toolbox and are sure to be useful going forward. If you would like to learn more about how the SECURE Act can be put to work in your 401(k) plan, please contact us.

Increased Penalties under the SECURE Act

The SECURE Act created many new ways to help both individuals and employers save for retirement, including creating extra flexibility for safe harbor plans, extending the deadline to initially adopt a qualified plan, eliminating the maximum age for IRA contributions, and delaying the age at which required minimum distributions commence. However, from Congress’ point of view, each additional dollar that is saved in a qualified retirement plan or IRA represents lost tax revenue. Therefore, the SECURE Act also includes some revenue raisers to offset the cost of the expanded retirement benefits. One of these provisions is Section 403 which increases (by a factor of 10) the penalties for several types of failures related to retirement plans.

Form 5500

The first and most notable increase comes under section 403(a) of the SECURE Act, regarding the penalty under IRC section 6652(e) for failure to file Form 5500. Form 5500 is the annual return for employee benefit plans which is due 7 months after the end of the plan year (July 31 for a calendar plan year). The deadline can be extended by an additional 2½ months (to October 15 for a calendar plan year) if an extension request is filed with the IRS. If the Form 5500 is not filed by the deadline, the IRS imposes a fine on the plan administrator for each day that the filing is late. If an extension was filed, it is disregarded when applying this penalty; the fine is calculated retroactive back to the original due date of the Form 5500. Prior to the SECURE Act, the fine was $25/day, with a maximum of $15,000 for a single Form 5500. After the SECURE Act, the penalty is now $250/day, with a maximum of $150,000 for a single Form 5500.

Of course, IRS penalties alone do not tell the whole story when it comes to Form 5500. The Department of Labor imposes its own fines on top of those levied by the IRS. The DOL can charge a plan administrator who fails to file a Form 5500 up to $2,233 per day, with no maximum. This fine was not increased under the SECURE Act, but is adjusted annually for inflation. Fortunately for plan administrators, the DOL offers a way to get plans caught up at a much lower cost. Under the Delinquent Filer Voluntary Compliance Program (DFVCP), a Form 5500 can be filed late at a cost of $750 per filing, or a maximum of $1,500 per plan when filing multiple forms at once, as long as the plan has fewer than 100 participants. Higher fees apply for larger plans. The DVFCP may only be used for a voluntary submission by a delinquent filer; if the filing is in response to a government notice regarding the delinquency, the DVFCP may not be used.

Form 8955-SSA

Section 403(b) of the SECURE Act increased the penalties for failing to register or report certain changes in status under IRC section 6652(d). This actually includes two separate penalties. The first, under section 6652(d)(1), is for failure to file Form 8955-SSA. This is the form used to report terminated participants with a deferred vested benefit. Previously the penalty was $1 per day for each participant required to be reported on the form, with a maximum penalty of $5,000. Now the penalty is $10 per day per participant, with a maximum of $50,000.

Plan Changes Reported to the IRS

The second increase added under SECURE section 403(b) is the penalty under IRC section 6652(d)(2), for failure to notify the IRS of a change in the name of the plan, a change in the name or address of the plan administrator, the termination of the plan, or a merger or division of the plan. These changes do not require a separate form to notify the IRS; they are noted on the Form 5500. However, if a plan administrator fails to file a Form 5500, and any of the required items apply, they could be subject to both the penalties under 6652(e) and 6652(d)(2). Prior to the SECURE Act, the penalty was $1 per day with a maximum penalty of $1,000; the penalty has increased to $10 per day with a maximum of $10,000.

Participant Distribution Notice

Finally, section 403(c) of the SECURE Act increased the penalty under IRC 6652(h) for failure to provide the notice required under IRC 3405(e)(10)(B). This section describes the notice that is required to be given to anyone receiving a distribution which is not an eligible rollover distribution, informing them that they may elect to waive federal income tax withholding. The notice must be provided no earlier than 6 months before payments commence, and not later than the time that would give the payee reasonable time to make an election without delaying payment. Prior to the SECURE Act, the penalty for failure to provide this notice was $10 for each failure, not to exceed $5,000 for a single payor in a calendar year. The penalty has been increased to $100 for each failure with a calendar year maximum of $50,000. Note that the penalty for failure to provide the section 402(f) notice for eligible rollover distributions was already $100 per failure with an annual maximum of $50,000 under SBJPA 1996; SECURE brought the penalty for non-rollover eligible distributions into line with the penalty for rollover eligible distributions.

While the SECURE Act opened many new opportunities to save for retirement, the increased penalties mean it is more important than ever to make sure your plan is operated in strict compliance. If you have any questions about your compliance requirements, please contact us.

Summary of the Changes Made by Section 403 of the SECURE Act

  • Failure: Did not file Form 5500

    • Old penalty: $25 per day, maximum $15,000

    • New penalty: $250 per day, maximum $150,000

  • Failure: Did not file Form 8955-SSA

    • Old penalty: $1 per day per participant, maximum $5,000

    • New penalty: $10 per day per participant, maximum $50,000

  • Failure: Did not notify IRS of change in plan name or sponsor address, plan merger or division, or plan termination

    • Old penalty: $1 per day, maximum $1,000

    • New penalty: $10 per day, maximum $10,000

  • Failure: Did not provide the required notice to a participant receiving a distribution not eligible for rollover regarding their right to waive federal income tax withholding

    • Old penalty: $10 per failure, maximum $5,000

    • New penalty: $100 per failure, maximum $50,000

Coronavirus Relief Part VI - IRS Guidance on RMD Rollovers

On June 23, 2020, the IRS published Notice 2020-51 which provides additional guidance related to Section 2203 of the CARES Act which waived Required Minimum Distributions for 2020 for certain plans and IRAs. For our previous coverage of Section 2203, see Coronavirus Relief Part III - RMD Waivers. The notice also provides an update on the RMD changes made by the SECURE Act.

Deadline Extended

The CARES Act was signed into law on March 27, 2020, and effective on that date, there were no more RMDs for 2020 (for participants in defined contribution plans and holders of IRAs). This was a great relief for anyone who had not yet taken their 2020 RMD, as they would no longer be required to take a distribution during the volatile market environment. However, many individuals who were subject to 2020 RMDs might have already taken their distributions prior to the enactment of the CARES Act.

Once the CARES Act became law, any distribution taken between January 1, 2020 and March 27, 2020 which had been classified as an RMD was now considered an eligible rollover distribution. Generally, an eligible rollover distribution which is not directly rolled over may still be paid to an IRA or to the trustee of an eligible retirement plan and be excluded from income, as long as the payment happens within 60 days of the distribution. Individuals who received RMDs in February or March 2020 would still have had some time after the enactment of the CARES Act to take advantage of this 60-day rollover period. However, those who took their RMDs in January 2020 would have missed the window to pay back their RMD.

Notice 2020-51 provides relief. The IRS officially extended the 60-day rollover window to August 31, 2020, to roll over any RMD payment (other than from a defined benefit plan) made in 2020 to an eligible retirement plan or IRA. Thanks to this relief, participants who took an RMD at any time in 2020 now have until August 31, 2020 to repay the amount of their RMD and exclude it from income in 2020.

Exception to One-Rollover-per-Year-Rule

Ordinarily, the holder of an IRA is not permitted to make more than one rollover contribution in any 12-month period. Notice 2020-51 provides an exception to this rule with respect to the re-contribution of amounts which were distributed as RMDs as described in the previous section. Therefore, an amount which was distributed as an RMD during 2020 may be repaid to an IRA at any time up through August 31, 2020, regardless of whether the account holder has made (or will make) another rollover contribution within a year.

Plans not Required to Treat 2020 RMDs as Eligible for Rollover

The SECURE Act increased the age at which RMDs must begin from 70½ to 72, effective for individuals attaining age 70½ in 2020 or later. However since the SECURE Act was passed very late in 2019, it did not give much time for recordkeepers and other service providers to update their systems and procedures before the new rule took effect. As a result, some distributions may have been paid out during 2020 and treated as RMDs, even if they were no longer actually RMDs.

A distribution which is not an RMD is generally eligible for rollover. The administrator of a plan which makes an eligible rollover distribution must comply with certain requirements, including providing a special tax notice to the participant, and withholding 20% for federal income tax purposes.

If a distribution was made during 2020 and was treated as an RMD by the payor, but after the application of the SECURE Act and/or the CARES Act, it would no longer be an RMD, and therefore could be an eligible rollover distribution. However the plan would have failed to comply with the notice and withholding requirements by treating the distribution as an RMD.

Notice 2020-51 provides relief, by allowing payors to treat distributions, which would have been RMDs for 2020 if not for the provisions of the SECURE Act and the CARES Act, as if they were not eligible rollover distributions, with respect to the notice and withholding requirements.

If you have any questions about your RMD obligations for 2020 or beyond, please contact us.