Retirement plans are funded by
contributions from employers and/or employees, depending upon the type of
plan and the provisions established under the plan document. These
contributions must be deposited to the trust established under the plan by
certain dates.
Prior to the last decade, contribution timing issues centered around the
minimum funding rules (which only apply to pension plans) and tax deduction
rules. However, in recent years the 401(k) plan has become the most popular
retirement vehicle in existence. With it has come a greater emphasis on the
timing of a variety of contribution options that are available under such
plans. Unfortunately, not all of the deposit deadlines for these plans are
as clear-cut as one might expect.
401(k) Plans
The key component of a 401(k) plan is that it allows employees to defer a
portion of their compensation into the plan, up to certain allowable limits.
An individual account is typically established for each participant, who is
often permitted to direct the investment of his or her account.
Other contributions may be made by the employer, such as matching
contributions, safe harbor contributions and qualified non-elective
contributions, some of which are based on employees' deferrals.
Salary Deferrals
Since deferrals are deducted from employees' wages on a regular basis
(usually each paycheck), the issue has always been how quickly the deferrals
must be transmitted to the plan. It is an issue which has generated much
debate.
The Department of Labor (DOL) issued final regulation sec. 2510.3-102
years ago to address this subject, but it may have resulted in more
confusion than clarification. Under the regulation, amounts that are paid by
a participant or withheld from wages by an employer become plan assets as of
the earliest date on which such contributions can reasonably be segregated
from the employer's general assets. The regulation does not, however,
specify what a reasonable time period might be in which to implement this
segregation. In an electronic society where most financial transactions are
done by computer, this "segregation" concept seems antiquated. Nevertheless,
since many employers remit taxes within days of withholding, it's hard to
argue against that same capability for withheld deferrals.
The regulation also states that in no event shall the segregation date be
later than the 15th business day of the month following the month the
contribution was received or withheld. Some employers who apparently relied
upon this date as a safe harbor deadline eventually paid the price. The
Internet is abuzz with tales of DOL audits in which employers, who believed
they were acting within the regulation, were penalized for failure to remit
salary deferrals on a timely basis. As a result, employers should consider
remitting participant contributions as soon as possible and, in no event,
less frequently than they make their tax deposits.
If participant contributions are not immediately deposited into the plan
once they are considered to be plan assets, then the employer is engaging in
a prohibited transaction. That's because the employer has use of the money
that belongs to the plan, which is a violation of ERISA. Prohibited
transaction penalties could apply, as well as possible replacement of lost
earnings and other penalties for breach of fiduciary duties.
This issue was litigated in federal court for the first time earlier this
year. To the surprise of many, the judge sided with a failing "dot com"
company in refusing to find that deferrals deposited as late as the 15th day
of the following month were beyond DOL requirements. The DOL would likely
disagree with the outcome of this case, and employers who rely on it do so
at their own peril.
Loan Repayments
Loans to plan participants, secured by their vested benefits, are more
common in 401(k) plans than any other plan. Repayments are often deducted
from the employee's wages, similar to salary deferrals. In a recent advisory
opinion (2002-01A, May 17, 2002), the DOL compared loan repayments to
participant contributions and stated that they too become plan assets as of
the earliest date they can reasonably be segregated from the employer's
general assets. Although the DOL had previously said that loan repayments
were not within the scope of the final regulations, this advisory opinion
makes it clear they will receive similar treatment.
Matching Contributions
To entice employees to participate in their 401(k) plans, employers will
often make a contribution to participants who defer a portion of their
compensation into the plan. Such contributions are called matching
contributions and are usually based on the amount of each participant's
deferrals. Some employers deposit these contributions on a regular basis
throughout the year, while others deposit the entire amount after the plan
year-end.
In order to be allocated in the current year and included in the
non-discrimination test (see next section), matching contributions must be
deposited by the last day of the following plan year. But in order to be
deducted on the employer's tax return for the year for which they are
allocated, the matching contributions must be contributed by the due date of
the employer's tax return, including extensions. (This assumes the
employer's fiscal year is the same as the plan year. Where it is not, other
rules apply.)
Example: ABC Company's fiscal and 401(k) plan year are both the
calendar year. The company always deposits the entire matching contribution
after the plan year-end. For 2001, ABC has filed for an extension (to
September 16, 2002) to file its federal tax return. The matching
contribution is made September 4, 2002. Since it was contributed before the
federal tax return due date (including the extension) it is deductible on
the 2001 return. (This example assumes that the contributions are within the
2001 15% deduction limit.)
QNECs and QMACs
Each year a separate non-discrimination test must be performed for salary
deferrals (ADP test) and matching and/or voluntary contributions (ACP test)
under a 401(k) plan. One method of passing an otherwise failed test is for
the employer to make a qualified non-elective contribution (QNEC) or a
qualified matching contribution (QMAC) to some or all of the non-highly
compensated employees. In order to be utilized in the test for a particular
plan year, these contributions must be made by the last day of the following
plan year. The timing issues that apply to the deduction of matching
contributions also apply to QNEC and QMAC contributions.
Safe Harbor 401(k) Contributions
A 401(k) plan will be treated as automatically passing the ADP test for
any year that it satisfies the safe harbor contribution requirement and the
notice requirement. The contribution requirement can be met by either a
specified matching contribution rate or an employer non-elective
contribution of 3% of eligible employees' compensation.
Generally, the safe harbor contribution must be made by the last day of
the following plan year. The timing issues that apply to the deduction of
matching contributions also apply to safe harbor contributions.
Where the safe harbor matching contribution is being made on a per
payroll basis instead of an annual compensation basis, the match must be
deposited by the last day of the following plan year quarter.
Profit Sharing Plans
Employer non-elective contributions to a profit sharing plan are
generally credited in the year they are deposited. However, contributions
made after the end of the employer's fiscal year but before the due date for
filing its federal tax return (including extensions) may be considered to
have been paid as of the last day of the fiscal year. If the employer's
fiscal year is different than the plan year, other factors may have to be
considered.
Example: The XYZ Corporation's fiscal year is the calendar year.
XYZ's profit sharing plan also has a calendar plan year. For 2001, the due
date of XYZ's federal tax return was extended to September 16, 2002. Any
employer contributions deposited by that date can be considered deposited on
December 31, 2001 and allocated under the plan as of that date. They would
be deductible to the corporation for 2001.
Money Purchase Pension Plans
Unlike profit sharing plans, in which employer contributions are often
discretionary, money purchase pension plans require a specific contribution
formula. Failure to deposit the required contribution is a violation of the
minimum funding standards. The contribution deadline for minimum funding
purposes is 8½ months after the end of the plan year. If the deadline is not
met the employer is subject to a late funding penalty.
Where the employer's fiscal year is the same as the plan year, this date
matches the day a corporation could extend the due date of its tax return.
This allows the employer to deduct the payments necessary to fully fund the
plan within the allowable funding period. However, the 8½ month funding
period exists regardless of whether or not the corporation files for an
extension.
Non-corporate entities such as partnerships and sole proprietors have
different tax filing due dates which must be taken into consideration for
deduction purposes.
Top Heavy Contributions
If a plan is considered to be top heavy (i.e., at least 60% of the
benefits belong to key employees), it must provide minimum contributions,
usually 3% of compensation, to non-key employees. Such top heavy
contributions must be paid by the last day of the following plan year. The
timing issues that apply to the deduction of matching contributions also
apply to top heavy contributions.
Defined Benefit Pension Plans
The funding requirements for defined benefit pension plans are based on
actuarial calculations which spread out payments over the years to provide
for specific benefits as they become due. As with money purchase plans,
defined benefit plans are also subject to the minimum funding rules, which
allow required contributions to be made up to 8½ months after the end of the
plan year.
Plans that do not contribute enough money to fully fund the current
benefit liabilities must make deposits on a quarterly basis or else notify
employees that quarterly deposits will not be made. The timing issues that
apply to the deduction of money purchase plan contributions also apply to
defined benefit plan contributions.
Conclusion
It is important for plan sponsors to know the required due dates for
contributions to their qualified retirement plans. This will enable them to
take full advantage of contribution opportunities and prevent late penalties
for failure to timely contribute. With the increased popularity of the
401(k) plan, the timing of salary deferral contributions has become an
important issue.
While DOL regulations are not crystal clear as to the deadline for the
transmittal of these contributions, it is clear that the 15th business day
of the following month rule is not a safe harbor deadline upon which
employers can rely. Prudence dictates the deposit of these funds as soon as
practical, to avoid any possible prohibited transaction penalties or other
adverse ramifications.
With so many different types of contributions available in retirement
plans today, it is important to double-check the due dates to avoid
confusion.
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