Back to 401(k) Plans

Overview

  • 3752. What is a 401(k) plan?

    • A 401(k) plan generally is a profit sharing plan or stock bonus plan that provides for contributions to be made pursuant to a “cash or deferred arrangement” (“CODA”, see Q 3755) under which individual participants elect to take either amounts in cash or to have the amounts deferred under the plan. With the availability of Roth contributions under 401(k) plans, the employee also may elect to have Roth deferrals made on an after-tax basis to the CODA.

      In addition to the general qualification requirements (Q 3838 through Q 3936), special qualification rules apply to 401(k) plans (Q 3753 to Q 3808). Certain nondiscrimination requirements can be met by satisfying the requirements for safe harbor plans (Q 3773). There are requirements for SIMPLE 401(k) plans (Q 3778) and there are automatic enrollment plans for plan years beginning after 2007 (Q 3762).The elective deferral limits apply to individuals participating in more than one salary reduction plan, such as a 401(k) plan and a Section 403(b) tax sheltered annuity or SIMPLE IRA (Q 3760). There also are requirements that pertain to catch-up contributions by participant’s age 50 or over (Q 3761).

      Amounts deferred under a 401(k) plan are referred to as elective deferrals (Q 3760). Elective deferrals generally are excluded from a participant’s gross income for the year of the deferral and are treated as employer contributions to the plan.1 In the case of contributions to a qualified Roth contribution program (Q 3779), deferrals are made on an after-tax basis (i.e., they are treated as includable in income for withholding purposes).2

      A 401(k) plan may provide that all employer contributions are made pursuant to the election or may provide that the cash or deferred arrangement is in addition to ordinary employer contributions. Typically, the employer contributions are in the form of a percentage match for each dollar deferred by an employee. There are requirements that apply to matching contributions (Q 3804, Q 3808).


      Note: On December 16, 2019, the SECURE Act3 was enacted and made a number of significant changes (some effective immediately upon enactment) to retirement plan rules. Many of these changes impact 401(k) plans and their operations, like the need to annually communicate lifetime income to participants, expansion of mandatory participation to certain long-term part-time employees, and a change in the “required beginning date” and allowable distribution periods for required minimum distributions. Others reduce the burden and cost for an employer to adopt or maintain a plan.

      A number of legal and regulatory changes prior to the SECURE Act impact certain substantive 401(k) limitation rules regarding hardship, loans and other pre-59½ distributions, especially in the case of areas officially declared to be national disaster areas for hurricanes, floods, fires (Q 3799), and the COVID-19 pandemic. Some changes, like extension of time to repay 401(k) loans, do not require a disaster justification.



      1.      Treas. Reg. § 1.401(k)-1(a).

      2.      See IRC § 402A.

      3.      See PL 116-94

  • 3753. What special qualification requirements apply to 401(k) plans?

    • To qualify, a 401(k) plan (or a plan that provides a 401(k) cash or deferred arrangement) generally must first be a qualified profit sharing or stock bonus plan.1

      Contributions to the plan made under a cash or deferred arrangement must satisfy the nondiscrimination in amount requirement (Q 3802), be subject to withdrawal restrictions (Q 3802), and will not be included in the employee’s gross income unless the employee elects to treat the contributions as designated Roth contributions (Q 3779).


      1.      IRC § 401(k); Treas. Reg. § 1.401(k)-1(a)(1).

  • 3754. Are tax-exempt and governmental employers eligible to offer 401(k) plans?

    • Yes. Tax-exempt employers such as 501(c)(3) organizations are eligible to offer 401(k) arrangements.1 State and local government employers (including political subdivisions and agencies thereof) generally are prohibited from offering 401(k) arrangements to their employees, but certain rural cooperatives may do so.2

      1.      IRC § 401(k)(4)(B)(i). Of course, 403(b) plans are an option for nongovernmental tax-exempt employers and are also available to governmental tax-exempt employers, like school districts.

      2.      See IRC §§ 401(k)(1), 401(k)(2), 401(k)(4)(B)(ii).

  • 3755. What is a cash or deferred arrangement (“CODA”) in the context of a 401(k) plan?

    • A “cash or deferred arrangement” (“CODA”) is an arrangement under which an eligible employee may make a cash or deferred election with respect to contributions, accruals, or other benefits in a qualified plan.1 A cash or deferred election is any direct or indirect election (or modification of an earlier election) by an employee to have the employer either (1) provide an amount to the employee in the form of cash (or some other taxable benefit) that is not currently available, or (2) contribute an amount to a trust, or provide an accrual or other benefit under a plan deferring the receipt of compensation.2

      With respect to timing, the final regulations provide that “a contribution is made pursuant to a cash or deferred election only if the contribution is made after the election is made.”3 See Q 3939 with regard to deduction timing. Under final regulations, amounts contributed in anticipation of future performance of services generally are not treated as elective contributions. A very limited exception is provided for bona fide administrative convenience (e.g., a company bookkeeper is absent the day the funds normally would be transmitted to the plan) and not for a principal purpose of accelerating deductions.4 Special penalties and reporting requirements apply to listed transactions (Q 4107).5

      Automatic enrollment. For purposes of determining whether an election is a cash or deferred election, it is irrelevant whether the default that applies in the absence of an affirmative election is that the employee receives cash or that the employee contributes the specified amount to the trust.6 In plan years beginning after 2007, a safe harbor is available for plans that provide for automatic enrollment (“qualified automatic contribution arrangement” or “QACA”)) and satisfy certain additional requirements (Q 3762). Beginning in 2020, under the SECURE Act, the QACA safe harbor can provide for auto escalation of the automatic contribution.7 See Q 3762 for more detail.

      A cash or deferred arrangement does not qualify as such if any other benefit provided by the employer, except for matching contributions, is conditioned on the employee’s making an election under the plan. “Other benefits” is illustrated in the regulations.8 The IRS has privately ruled that the purchase of a group long-term disability income policy that provided continuation of benefit accumulation for disabled employees did not violate this rule.9

      The IRS repeatedly has approved 401(k) plans involving a so-called “401(k) wraparound” nonqualified deferred compensation plan arrangement,10 whereby contributions consisting of current year salary deferrals were held initially in a nonqualified deferred compensation plan (Q 3571). The IRS concluded that such deferrals were not impermissibly conditioned on the deferral election.11 Final regulations state that a plan will not fail to be qualified merely because it includes a nonqualified cash or deferred arrangement, but special requirements will apply to its nondiscrimination testing.12

      Elective deferral contributions to a 401(k) cash or deferred arrangement, including Roth contributions (Q 3779), are treated as employer contributions except when they are recharacterized (Q 3808).13 Contributions need not come from employer profits.14


      1.      See Treas. Reg. § 1.401(k)-1(a)(2).

      2.      Treas. Reg. § 1.401(k)-1(a)(3).

      3.      Treas. Reg. § 1.401(k)-1(a)(3)(iii)(B).

      4.      See Treas. Reg. § 1.401(k)-1(a)(3)(iii)(C)(2).

      5.      See IRC § 6707A.

      6.      See Treas. Reg. § 1.401(k)-1(a)(3)(ii).

      7.      See PL 116-94, § 102

      8.      IRC § 401(k)(4)(A); Treas. Reg. § 1.401(k)-1(e)(6); see Let. Rul. 9250013.

      9.      Let. Ruls. 200235043, 200031060.

      10.    The IRS has also approved this design as to the nonqualified plan covered by Section 409A, but the DOL guidance governing the timeliness of plan contributions now need to be considered as well.

      11.    See e.g., Let. Ruls. 199924067, 9807010, 9752017, 9530038.

      12.    See Treas. Reg. § 1.401(k)-1(a)(5)(iv).

      13.    Treas. Reg. § 1.401(k)-1(a)(4)(ii).

      14.    IRC § 401(a)(27).

  • 3756. What elective deferral limits are applicable to 401(k) plans?

    • The plan must provide that the amount any employee can elect to defer for any calendar year under the cash or deferred arrangement of any plan is limited to $22,500 in 2023 (up from $20,500 in 2022, $19,500 in 2020-2021 and $19,000 in 2019), and is subject to indexing for inflation thereafter (Q 3760).1 Plans also may allow additional elective deferrals, known as catch-up contributions, by participants age 50 or over. These catch-up contributions, if made under the provisions of IRC Section 414(v), are not subject to the Section 401(a)(30) limit (Q 3761).2


      1. IRC Secs. 401(a)(30), 402(g)(1); Notice 2019-59, Notice 2020-79, Notice 2021-61.

      2. IRC Sec. 414(v)(3)(A).

  • 3757. What participation and coverage requirements apply to 401(k) plans?

    • Editor’s Note: The SECURE Act has changed the law on mandatory eligibility to include long-term part-time employees. Under prior law, employers were permitted to exclude employees who performed fewer than 1,000 hours of service per year from participation in the employer-sponsored 401(k). The SECURE Act modified this rule in order to expand access for certain part-time employees. Under the new law, nonunion employees who perform at least 500 hours of service for at least three consecutive years (and are at least 21 years old) must be allowed to participate in the employer-sponsored 401(k). The SECURE Act 2.0 reduces the three-year period to two years for tax years beginning after 2024. These long-term, part-time employees may, however, be excluded from coverage and nondiscrimination testing requirements. This SECURE Act provision becomes effective for plan years beginning after December 31, 2020. However, 12-month periods beginning before January 1, 2021 are not taken into account for purposes of determining whether an employee qualifies.1 Therefore, an employer need only track part time employees on a going forward basis. However, the same is not true for tracking the vesting of employer contributions, based upon Notice 2020-68.

      Section 401(k)(15)(B)(iii) provides special vesting rules for an employee who becomes eligible to participate in a CODA solely by reason of having completed three consecutive 12-month periods during each of which the employee completed at least 500 hours of service (long-term, part-time employee). A long-term, part-time employee must be credited with a year of service for purposes of determining whether the employee has a nonforfeitable right to employer contributions (other than elective deferrals) for each 12-month period during which the employee completes at least 500 hours of service.2 In addition, Section 401(k)(15)(B)(iii) modifies the break-in-service rules of Section 411(a)(6) for a long-term, part-time employee. The special vesting rules of Section 401(k)(15)(B)(iii) continue to apply to a long-term, part-time employee even if the long-term, part-time employee subsequently completes a 12-month period during which the employee completes at least 1,000 hours of service.3

      The IRS has clarified that the rule providing that 12-month periods beginning before January 1, 2021 are not taken into account does not apply for purposes of the vesting rules. Generally, all years of service with the employer maintaining the plan must be taken into account for purposes of determining a long-term, part-time employee’s nonforfeitable right to employer contributions under the special vesting rules. For purposes of determining whether a long-term, part-time employee has a nonforfeitable right to employer contributions (other than elective deferrals), each 12-month period for which the employee has at least 500 hours of service is treated as a year of service. All years of service with the employer maintaining the plan are taken into account for purposes of determining an employee’s nonforfeitable right to employer contributions, subject to certain exceptions. Those exceptions include, for example, years of service before the employee attains age 18.4

      A plan may not require, as a condition of participation in the cash or deferred arrangement, that an employee complete a period of service beyond the later of age 21 or the completion of one year of service.5

      A cash or deferred arrangement must satisfy a nondiscriminatory coverage test (Q 3842).6 For purposes of applying those tests, all eligible employees are treated as benefiting under the arrangement, regardless of whether they actually make elective deferrals.7 An eligible employee is any employee who is directly or indirectly eligible to make a cash or deferred election under the plan for all or a portion of the plan year. An employee is not ineligible merely because he or she elects not to participate, is suspended from making an election under the hardship withdrawal rules, is unable to make an election because his or her compensation is less than a specified dollar amount, or because he or she may receive no additional annual additions under the IRC Section 415 limits (Q 3728, Q 3868).8

      Employers may apply an early participation test for certain younger or newer employees permitted to participate in a plan. If a plan separately satisfies the minimum coverage rules of IRC Section 410(b), taking into account only those employees who have not completed one year of service or are under age 21, an employer may elect to exclude any eligible nonhighly compensated employees who have not satisfied the age and service requirements for purposes of the ADP test (Q 3802).9 This provision is designed to encourage employers to allow newer and younger employees to participate in a plan without having the plan’s ADP results “pulled down” by their often-lower rates of deferral. By making this election, an employer will be able to apply a single ADP test comparing the highly compensated employees who are eligible to participate in the plan to the nonhighly compensated who have completed one year of service and reached age 21.

      If an employer includes a tax-exempt 501(c)(3) organization and sponsors both a 401(k) (or 401(m)) plan and a Section 403(b) plan, employees eligible to participate in the Section 403(b) plan generally can be treated as excludable employees for purposes of the 401(k) plan if (1) no employee of the 501(c)(3) organization is eligible to participate in the 401(k) (or 401(m)) plan and (2) at least 95 percent of the employees who are not 501(c)(3) employees are eligible to participate in the 401(k) or 401(m) plan.10

      Guidelines and transition rules for satisfying the coverage requirement during a merger or acquisition are set forth at Revenue Ruling 2004-11.11


      1.      P.L. 116-94, 133 Stat. 2534 (Dec. 20, 2019), § 112

      2.      IRC § 401(k)(15)(B)(iii).

      3.      IRC § 401(k)(15)(B)(iv).

      4.      Notice 2020-68.

      5.      IRC § 401(k)(2)(D).

      6.      IRC § 401(k)(3)(A)(i).

      7.      Treas. Reg. § 1.410(b)-3(a)(2)(i).

      8.      Treas. Reg. § 1.401(k)-6.

      9.      IRC § 401(k)(3)(F); Treas. Reg. § 1.401(k)-2(a)(1)(iii).

      10.    Treas. Reg. § 1.410(b)-6(g).

      11.    2004-7 IRB 480.

  • 3758. What rules regarding nonforfeitability of benefits apply to 401(k) plans?

    • An employee must be fully vested at all times in his or her elective contributions and cannot be subject to the forfeitures and suspensions that are permitted by the IRC for benefits derived from employer contributions (Q 3869). Furthermore, such amounts cannot be taken into consideration in applying the vesting rules to other contributions.1

      Employer matching contributions and nonelective employer contributions that are taken into account for purposes of satisfying the special nondiscrimination rules applicable to cash or deferred arrangements (Q 3802) must be immediately nonforfeitable and subject to the withdrawal restrictions explained in Q 3797.2 All other contributions to a plan that includes a cash or deferred arrangement also are subject to these restrictions unless a separate accounting is maintained.3 Contributions made under a SIMPLE 401(k) plan are subject to special nonforfeitability requirements (Q 3778).


      1.      IRC § 401(k)(2)(C); Treas. Reg. § 1.401(k)-1(c); see also Treas. Reg. § 1.401(k)-1(c).

      2.      See Treas. Reg. §§ 1.401(k)-1(c), 1.401(k)-1(d).

      3.      Treas. Reg. § 1.401(k)-1(e)(3).

  • 3759. What aggregation requirements apply to 401(k) plans?

    • Cash or deferred arrangements included in a plan generally are treated as a single cash or deferred arrangement for purposes of meeting the requirements discussed in Q 3754 through Q 3758, and for purposes of the coverage requirements of IRC Section 410(b).1 The deferral percentage taken into account under the ADP tests for any highly compensated employee who is a participant in two or more cash or deferred arrangements under plans of the participant’s employer that are required to be aggregated (as discussed above) is the average of the deferral percentages for the employee under each of the arrangements.2

      Restructuring may not be used to demonstrate compliance with the requirements of IRC Section 401(k).3


      1.      See Treas. Reg. § 1.401(k)-1(b)(4)(ii).

      2.      IRC § 401(k)(3)(B).

      3.      Treas. Reg. § 1.401(k)-1(b)(4)(iv)(B).

  • 3760. What is the limit on elective deferrals to employer-sponsored plans?

    •  

      Editor’s Note: Late deposits of participant deferrals are one of the most common errors made by employer plans.  The The Department of Labor (DOL) has announced plans to revise its Voluntary Fiduciary Correction (VFC) Program and prohibited transaction exemption (PTE) 2002-51.  Under the proposal, employers would be allowed to self-correct certain late deposits of participant deferrals or loan repayments using the VFC Program. Under the new proposal, self-corrections would be permitted if (1) total lost earnings for the failure do not exceed $1,000 per correction, (2) delinquent contributions were remitted to the plan within 180 days after the date of withholding or receipt, (3) the lost earnings correction amount is computed using the DOL VFC Program calculator, using the actual date of withholding or receipt as the loss date, (4) the company completes an “SCC Retention Record Checklist”, prepares or collects certain documents, and provides the checklist and documentation to the plan administrator (to be treated as plan records for ERISA purposes), and (5) the company files an electronic notice with the DOL providing information about the correction.

      The IRC limits the total amount of “elective deferrals” any individual can exclude from income in a year. Elective deferrals, for this purpose, generally include all salary deferral contributions to all 401(k) plans (Q 3752 through Q 3779), 403(b) tax sheltered annuities (Q 4047), SAR-SEPs (Q 3705), and SIMPLE IRAs (Q 3706).1 Contributions under a Roth 401(k) feature (Q 3779) are subject to the same elective deferral limit as other 401(k) contributions.2

      The elective deferral limit for traditional and safe harbor 401(k) plans and for Section 403(b) tax sheltered annuities is $22,500 in 2023 (up from $20,500 in 2022 and $19,500 in 2020-2021).3

      Elective deferral contributions to SIMPLE IRAs (Q 3706) and SIMPLE 401(k) plans (Q 3778) are subject to a limit of $15,500 in 2023 (up from $14,000 in 2022 and $13,500 in 2020-2021.4 The limit on elective deferrals to tax sheltered annuity plans may be further increased in the case of certain long term employees of certain organizations (Q 4047).5

      The IRC Section 402(g)(1)(B) elective deferral limit is not required to be coordinated with the limit on Section 457 plans. As a result, an individual participating in both a 401(k) plan (or 403(b) plan) and a Section 457 plan in 2022 may defer as much as $41,000 (Q 3584).6

      Matching contributions made on behalf of self-employed individuals generally are not treated as elective deferrals for purposes of IRC Section 402(g)(1)(B). This treatment does not apply to qualified matching contributions that are treated as elective contributions for purposes of the ADP test (Q 3802).7

      Excess deferrals. Amounts deferred in excess of the ceiling (i.e., excess deferrals) are not excludable and, therefore, must be included in the individual’s gross income for the taxable year.8 In the case of participants age 50 or over, catch-up contributions permitted under IRC Section 414(v) are not treated as excess elective deferrals under IRC Section 402(g)(1)(C) (Q 3761).9

      If any amount is included in an individual’s income under these rules and plan language permits distributions of excess deferrals, the individual, prior to the first April 15 following the close of the individual’s taxable year, may allocate the excess deferrals among the plans under which the deferrals were made and the plans may distribute the excess deferrals (including any income allocated thereto, provided the plan uses a reasonable method of allocating income) not later than the first April 15 after the close of the plan’s taxable year.10 The amount of excess deferrals distributed under these rules is not included in income a second time as a distribution, but any income on the excess deferral is treated as earned and received, and includable in income in the taxable year in which distributed.11 If the plan so provides, distributions of excess deferrals may be made during the taxable year of the deferral if the individual and the plan designate the distribution as an excess deferral and the correcting distribution is made after the date on which the plan received the excess deferral.12

      Excess amounts that are not timely distributed are not included in the cost basis of plan distributions, even though they have previously been included in income.13 Thus, such amounts will be subjected to a second tax when distributed in the future. Any corrective distribution of less than the entire amount of the excess deferral is treated as a pro rata distribution of excess deferrals and income.14


      Planning Point: Due to the potential for double taxation, excess elective deferrals should be avoided, and, if they inadvertently occur, should be corrected by the applicable deadline. One common trap for the unwary may occur where an individual participates in more than one plan that allows elective deferrals. Perhaps he or she participates in a 401(k) plan at his or her regular place of employment, and also participates in a SIMPLE IRA plan sponsored by a side business. The limits on elective deferrals are applied to the individual and not just to the plan, so the individual easily might stay within the terms of the two plans and still violate the elective deferral limits by contributing the maximum amount to both plans. Martin Silfen, J.D., Brown Brothers Harriman Trust Co., LLC.


      See Q 3808 for rules on coordinating distributions of excess contributions and excess deferrals.15


      1.      IRC § 402(g)(3); Treas. Reg. § 1.402(g)-1(b).

      2.      See IRC § 402A(a)(1). Similar rules have recently been adopted with respect to the federal Thrift Savings Plan. 77 Fed. Reg. 26417 (May 4, 2012).

      3.      IRC § 402(g)(1); Notice 2019-59, Notice 2020-79, Notice 2021-61.

      4.      Notice 2019-59, Notice 2020-79, Notice 2021-61.

      5.      Treas. Reg. § 1.402(g)-1(c).

      6.      See IRC § 457(c).

      7.      See IRC § 402(g)(8).

      8.      IRC § 402(g)(1); Treas. Reg. § 1.402(g)-1(a).

      9.      Treas. Reg. § 1.414(v)-1(g).

      10.    Treas. Reg. §§ 1.402(g)-1(e)(2), 1.402(g)-1(e)(5).

      11.    IRC § 402(g)(2)(C); Treas. Reg. § 1.402(g)-1(e)(8).

      12.    Treas. Reg. § 1.402(g)-1(e)(3).

      13.    IRC § 402(g)(2); Treas. Reg. § 1.402(g)-1(e)(8).

      14.    IRC § 402(g)(2)(D); Treas. Reg. § 1.402(g)-1(e)(10).

      15.    See Treas. Reg. § 1.401(k)-1(f)(5)(i).

  • 3761. What are the rules for catch-up contributions to employer sponsored retirement plans?

    • Catch-up contributions are defined as additional elective deferrals by an eligible participant in an applicable employer plan, as defined in IRC Section 414(v) and regulations thereunder. Elective deferral for this purpose refers to the amounts described in IRC Section 402(g)(3) (Q 3760), but also includes amounts deferred to eligible Section 457 governmental plans.1 The provisions allowing catch-up contributions are among the retirement amendments of EGTRRA 2001 that became permanent under the Pension Protection Act of 2006 (“PPA 2006”).2For purposes of IRC Section 414(v), an applicable employer plan means:

      (1)    employer plans qualified under IRC Section 401(a) (Q 3838);

      (2)    Section 403(b) tax sheltered annuities (Q 4047);

      (3)    eligible Section 457 governmental plans (457(b) plans);

      (4)    salary reduction simplified employee pensions (i.e., SAR-SEPs (Q 3705)); and

      (5)    SIMPLE IRAs (Q 3706).3

      For this purpose, qualified plans, Section 403(b) plans, SAR-SEPs, and SIMPLE IRAs that are maintained by a controlled group of corporations, a group of trades or businesses under common control, or members of an affiliated service group (Q 3935) are considered one plan. In addition, if more than one eligible Section 457 governmental plan is maintained by the same employer, the plans will be treated as one plan.4

      Catch-up contributions permitted under IRC Section 414(v) do not apply to a catch-up eligible participant for any taxable year in which a higher catch-up amount is permitted under IRC Section 457(b)(3) during the last three years prior to the plan’s normal retirement year (Q 3584).5

      Dollar limit. A plan may not permit additional elective deferrals for any year in an amount greater than the lesser of (1) the indexed amount listed below or (2) the excess (if any) of the participant’s compensation as defined in IRC Section 415(c)(3) (Q 3868, Q 3728) over any other elective deferrals for the year made without regard to the catch-up limits.6 An employer that sponsors more than one plan must aggregate the elective deferrals treated as catch-up contributions for purposes of the dollar limit.7 An individual participating in more than one plan is subject to one annual dollar limit for all catch-up contributions during the taxable year.8

      The indexed dollar limit on catch-up contributions to SIMPLE IRAs and SIMPLE 401(k) plans is $3,500 in 2023 ($3,000 in 2015-2022). The SECURE Act 2.0 increased the catch-up contribution limit to $5,000 for taxpayers aged 60, 61, 62 or 63 for tax years beginning after 2024. 9 The SECURE Act 2.0 increased the catch-up contribution limit to $10,000 for taxpayers aged 60, 61, 62 or 63 for tax years beginning after 2024 (up from $7,500 in 2023, $6,500 in 2020-2022, $6,000 in 2015-2019).10

      Eligible participant. An eligible participant with respect to any plan year is a plan participant who would attain age 50 before the end of the taxable year and with respect to whom no other elective deferrals may be made to the plan for the plan (or other applicable) year as a result of any limit or other restriction.11 For this purpose, every participant who will reach age 50 during a plan year is treated as having reached age 50 on the first day of the plan year, regardless of the employer’s choice of plan year and regardless of whether the participant survives to age 50 or terminates employment prior to his or her birthday.12

      Universal availability. A plan will not satisfy the nondiscrimination requirements of IRC Section 401(a)(4) unless all catch-up eligible participants who participate in any applicable plan maintained by the employer are provided with the effective opportunity to make the same election with respect to the dollar limits described above.13 This is known as the universal availability requirement. A plan will not fail to satisfy this requirement merely because it allows participants to defer an amount equal to a specified percentage of compensation for each payroll period and permits each catch-up eligible participant to defer a pro rata share of the dollar catch-up limit in addition to that amount.14

      For purposes of the universal availability requirement, all plans maintained by employers that are treated as a single employer under the controlled group, common control, or affiliated service group rules (Q 3933, Q 3935) generally must be aggregated.15 Exceptions to the aggregation rule apply to Section 457 plans and certain newly acquired plans.16

      Catch-up contributions are excluded from income in the same manner as elective deferrals.17 The calculation of the elective deferrals that will be considered catch-up contributions generally is made as of the end of the plan year by comparing the total elective deferrals for the plan year with the applicable plan year limit.18 Elective deferrals in excess of the plan, ADP, or IRC limits, but not in excess of the amount limitations described above, will be treated as catch-up contributions as determined on the last day of the plan year.19

      An employer may make, but is not required to make, matching contributions on catch-up contributions. If an employer does so, the contributions must satisfy the ACP test of IRC Section 402(m) (Q 3804).20 Reporting requirements for catch-up contributions are set forth in Announcement 2001-93.21


      1.      IRC §§ 414(v)(5)(B), 414(u)(2)(C) (USERRA rights); Treas. Reg. § 1.414(v)-1(g)(2).

      2.      See P.L. 109-280, § 811.

      3.      IRC § 414(v)(6).

      4.      IRC § 414(v)(2)(D).

      5.      IRC § 414(v)(6)(C); Treas. Reg. § 1.414(v)-1(a)(3).

      h

      6.      IRC § 414(v)(2)(A).

      7.      Treas. Reg. § 1.414(v)-1(f)(1).

      8.      Treas. Reg. §§ 1.402(g)-2(b), 1.414(v)-1(f)(3).

      9.      IR-2015-118 (Oct. 21, 2015), Notice 2016-62, Notice 2017-64, Notice 2018-83, Notice 2019-59, Notice 2020-79, Notice 2021-61.

      10.    IR-2015-118 (Oct. 21, 2015), Notice 2016-62, Notice 2017-64, Notice 2018-83, Notice 2019-59, Notice 2020-79, Notice 2021-61.

      11.    IRC § 414(v)(5).

      12.    See Treas. Reg. § 1.414(v)-1(g)(3).

      13.    IRC § 414(v)(4)(A); Treas. Reg. § 1.414(v)-1(e).

      14.    Treas. Reg. § 1.414(v)-1(e).

      15.    IRC § 414(v)(4)(B).

      16.    See Treas. Reg. § 1.414(v)-1(e)(2) and (3).

      17.    See IRC § 402(g)(1)(C).

      18.    Treas. Reg. § 1.414(v)-1(b)(2).

      19.    Treas. Reg. § 1.414(v)-1(c).

      20.    See T.D. 9072, 2003-2 C.B. 527.

      21.    2001-44 IRB 416.

  • 3762. What is a solo 401(k) plan?

    • Editor’s Note: The original SECURE Act extended the deadline to allow qualified retirement plans to be adopted as late as the sponsoring employer’s tax filing deadline, including extensions.  However, employers could only make elective deferrals to the plan on a prospective basis (meaning that contributions for any given tax year still had to be made before year-end).  The SECURE Act 2.0 modified this rule to allow sole proprietors and owners of single member LLCs to make elective deferrals to their solo 401(k) plans up until their tax filing deadline, including extensions, even for the first year the plan is in place.  This new rule is effective for plan years beginning after December 29, 2022.

      A solo 401(k) plan refers to any 401(k) plan that covers only the business owner or the business owner and his or her spouse. These plans are subject to the same rules and requirements as any other 401(k) plan. Nondiscrimination testing is not required since the business does not have any common law employees who could have received disparate benefits. Solo 401(k) plans are a product of qualified plan reforms implemented by EGTRRA 2001, which substantially improved the tax favored treatment for employers sponsoring 401(k) plans. These changes were designed to encourage greater savings for retirement and to provide more incentive to businesses funding 401(k) plans.

      The first of these changes increased the deduction limit for profit sharing and stock bonus plans (which includes 401(k) plans) to 25 percent of compensation.1 Before 2002, profit sharing and stock bonus plans were subject to a deduction limit of 15 percent of compensation.


      Planning Point: For self-employed individuals, compensation is defined as net earnings less a deduction of 50 percent of self-employment tax and employee contributions. The IRS publishes a separate deduction and rate worksheet for self-employed individuals in Publication 560.


      Second, the definition of compensation for purposes of the 25 percent limit includes elective deferrals to a qualified plan, Section 403(b) plan, Section 457 plan, SEP, SIMPLE, or Section 125 FSA plan.2 This means that the payroll on which the 25 percent is based became higher than it was in earlier years, resulting in a higher deduction limit for employer contributions to the plan.


      Planning Point: If a self-employed individual also participates as an employee in another 401(k) plan, the limits on elective contributions are per individual, not per plan, so the aggregate contributions into all the plans cannot exceed the limit.


      After the EGTRRA 2001 amendments, elective deferrals no longer reduce the amount of employer contributions for purposes of calculating the 25 percent deduction limit.3 This means that a higher amount could be attributable to matching contributions, nonelective contributions or other amounts paid by the employer. The elective deferral limits increased as well: the limit is $22,500 for 2023 (up from $20,500 for 2022 and $19,500 for 2020-2021) (Q 3760), and, for individuals age 50 or older, catch-up contributions are permitted ($7,500 for 2023 and $6,500 in 2020-2022 (Q 3761)).4


      Planning Point: These changes to the calculation of the employer deduction for all profit sharing plans, including 401(k) plans, led to a proliferation of solo 401(k) plans. Although the advantages to a sole proprietor or one person corporation can be significant, it is important to note that the plan is subject to the same minimum participation, coverage, nondiscrimination, and other requirements that apply to any other qualified defined contribution plan, in the event one or more employees are later added to the sponsoring employer.


      Third, total contributions to an employee’s account (excluding catch-up contributions) cannot exceed $61,000 in 2022, $58,000 in 2021, and $57,000 in 2020.5


      1.      See IRC § 404(a)(3)(A).

      2.      See IRC § 404(a)(12).

      3.      See IRC § 404(n).

      4.      See IRC §§ 402(g)(1), 414(v)(2)(B); Notice 2019-59, Notice 2020-79, Notice 2021-61.

      5.      Notice 2019-59, Notice 2020-79.