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IRS Announces Proposed Regulations Implementing New Hardship Distribution Requirements

The IRS recently published proposed regulations addressing changes enacted by the Tax Cuts and Jobs Act of 2017, the Bipartisan Budget Act of 2018, and other prior changes to the tax code. Specifically, the proposed regulations: Permit, but don’t require, hardship distributions from a participant’s elective contributions, QNECs, QMACs (including safe harbor matching contributions), and any earnings on those amounts, regardless of when they were contributed or earned Eliminate the requirement that a participant take out all available plan loans before receiving a hardship distribution (although plans may continue to contain such a requirement) Prohibit plans from containing a requirement that a participant may not contribute to the plan for any period of time following a hardship distribution (in other words, eliminate the six-month suspension rule). If a suspension is still being applied as of January 1, 2019 for a prior hardship distribution, a plan may eliminate the suspension as… Continue Reading

IRS Provides New Guidance Under Code Section 162(m)

In December 2017, under the Tax Cuts and Jobs Act, Congress broadened the $1 million deduction limitation under Code Section 162(m) for a public company’s top executives by, among other things, broadening the scope of “covered employees” and eliminating the performance-based compensation exception. The more restrictive Code Section 162(m) generally applies for tax years after 2017, but certain arrangements in existence on November 2, 2017, may be grandfathered. On August 21, 2018, the IRS issued new guidance on Code Section 162(m) under IRS Notice 2018-68 (the “Notice”). Notably, the Notice provides guidance with respect to the grandfathering relief (including the impact of negative discretion and what constitutes a material modification), and provides guidance on the expanded scope of who is a “covered employee” (and will remain a covered employee). The Notice leaves open for comment several issues, including, the rule which allows certain newly public companies to limit the application… Continue Reading

IRS Finalizes Rules Permitting Use of Forfeitures to Fund Safe Harbor Contributions, QNECs, and QMACs

As we previously reported, on January 18, 2017, the IRS proposed amendments to regulations under Section 401(k) of the Internal Revenue Code that would permit the use of forfeitures to fund safe harbor contributions, qualified non-elective contributions (“QNECs”), and qualified matching contributions (“QMACs”). The IRS recently finalized the proposed amendments, effective as of July 20, 2018, without substantive changes. The prior regulations had provided that employer contributions could only qualify as safe harbor contributions, QNECs, or QMACs if they were non-forfeitable and not eligible for early distribution at the time they were contributed to the plan. The final regulations now provide that safe harbor contributions, QNECs, and QMACs be non-forfeitable and not eligible for early distribution at the time they are allocated to participants’ accounts. View the final regulations.

IRS Reduces Fee for Favorable Determination Letter for Terminating Plans

In Rev. Proc. 2018-19, the IRS reduced the fee for filing for a favorable determination letter on Form 5310 in conjunction with a plan termination from $3,000 to $2,300. The reduced fee is effective retroactively for all Forms 5310 filed on or after January 2, 2018. Filers who paid the $3,000 user fee will receive a $700 refund. View Rev. Proc. 2018-19.

IRS Allows Interest Credits Equal to Plan Rate of Return for Pre-Approved Plans

In Rev. Proc. 2018-21, the IRS modified the favorable determination letter program to allow pre-approved defined benefit plans containing a cash balance formula to provide for the actual rate of return on plan assets as the rate used to determine interest credits, and modifies the guidance in prior Revenue Procedures accordingly. View Rev. Proc. 2018-21.

IRS Releases Updated Withholding Tables and Supplemental Wages Withholding Rate

On January 11, 2018, the IRS released Notice 1036, which contains updated income tax withholding tables for 2018 that reflect changes made to the tax code by the Tax Cuts and Jobs Act. The notice also provides that the new withholding rate for supplemental wages of up to $1 million is now 22 percent, down from 25 percent, and the rate for supplemental wages in excess of $1 million is now 37 percent, down from 39.6 percent. Employers should implement the new withholding rates as soon as administratively possible, but in no event later than February 15, 2018. View Notice 1036.

IRS Memo Addresses Required Minimum Distributions to Missing Participants

The IRS recently released a memo instructing its Employee Plans examiners not to challenge a qualified retirement plan’s compliance with the required minimum distribution (“RMD”) rules under Code Section 401(a)(9), in situations where the plan is unable to make an RMD to a missing participant after completing the following steps: (i) searching plan, sponsor, and publicly-available records for alternative contact information; (ii) using a commercial locator service, credit reporting agency, or proprietary Internet search tool; and (iii) attempting contact via certified mail to the last known mailing address and through “appropriate means” for any other addresses or contact information (e.g., email addresses or telephone numbers). If a plan has not taken all of the foregoing steps, an examiner may challenge the qualified status of that plan if it fails to make timely RMDs to lost participants. Plan administrators are thus advised to complete those steps and document the results for… Continue Reading

IRS Provides Retirement Plan Loan and Hardship Distribution Relief for Victims of Hurricane Maria and the California Wildfires

The IRS released Announcement 2017-15 providing relief from some of the loan and hardship distribution requirements for qualified retirement plans (including Code Section 401(a) and 403(b) plans). The relief applies to employees or former employees either (i) whose principal residence was on the island of Puerto Rico or the U.S. Virgin Islands, or in one of the California counties identified by FEMA for individual assistance because of wildfires; or (ii) whose place of employment was in one of those locations. A list of the areas covered by this relief can be found on FEMA’s website. Qualified plans that do not have loan or hardship distribution provisions can still make loans or hardship distributions, so long as the plan is amended to provide for them no later than the end of the first plan year beginning after December 31, 2017. View Announcement 2017-15.

IRS Extends Nondiscrimination Relief for Closed Defined Benefit Plans through 2018

In Notice 2017-45, the IRS extended the temporary nondiscrimination relief that it provided in Notice 2014-5 for plan years beginning before 2019. Notice 2014-5 permits certain employers that sponsor a “closed” defined benefit plan and a defined contribution plan to demonstrate that the aggregated plans comply with the nondiscrimination requirements of Section 401(a)(4) of the Internal Revenue Code on the basis of equivalent benefits, even if the aggregated plans do not satisfy the current conditions for testing on that basis. A “closed” defined benefit plan for purposes of these Notices provides ongoing accruals but was amended before December 13, 2013, to limit those accruals to some or all of the employees who participated in the plan as of a certain date (i.e., is frozen to new participants). View IRS Notice 2017-45. View IRS Notice 2014-5.

New IRS Guidance on Participant Loan Cure Periods

In a recent Chief Counsel Advise Memorandum, the IRS analyzed two factual scenarios in which a 401(k) plan participant missed certain loan payments. In the first scenario, the participant missed two consecutive installment payments, which were due in separate calendar quarters. Payments made subsequent to the missed payments were deemed to “cure” the prior missed payments, which resulted in a rolling cure period that would extend to the end of the calendar quarter following the quarter in which the last installment payment was made. Ultimately, the participant made a payment to the plan that included an amount for the two prior missed payments as well as the payment then due. Because all missed payments were cured within the applicable cure period, the IRS concluded that no deemed distribution of the loan proceeds had occurred. In the second scenario, the participant missed three consecutive payments, which were all due in the… Continue Reading

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