Covid, 401K’s and Cash Flow

Reducing or Suspending 401(k) Safe Harbor Contributions Mid-Year under Notice 2020-52 and some options you might explore on a NQDC basis for potential refunds from the plan.

July 30, 2020

A client recently called and asked the following questions:  “Under what circumstances, if any, can the business that has a standard 401(k) safe harbor plan, reduce or eliminate the company’s mandatory safe harbor contribution during the plan year? Is there any relief granted because of the impact of Covid-19?”   

The following outlines the circumstances under which sponsors of 401(k) [and 403(b)] safe harbor plans may reduce or eliminate employer safe harbor contributions mid-year under normal circumstances, and under the special circumstances outlined in IRS Notice 2020-52 granted as a result of the Covid-19 pandemic.

Under normal circumstances, and according to final Treasury Regulations, a sponsor of a 401(k) safe harbor plan may amend the plan during the current year to reduce or suspend the company’s safe harbor contribution—either the matching or nonelective contribution—under the following limited circumstances.

A removal or reduction of a safe harbor contribution mid-year is permitted if the employer either

  1. Is operating under an economic loss for the year (See Internal Revenue Code Section (IRC 412(c)(2)(A);[1]

or

  1. Included a statement in the safe harbor notice given to participants before the start of the plan year that the employer
  • May reduce or suspend contributions mid-year;
  • Will give participants a supplemental notice (described below) regarding the reduction or suspension; and
  • Will not reduce or suspend employer contributions until at least 30 days after receipt of the supplemental notice.

COVID-19 Relief Any Plan Amended Between March 13, 2020, and August 31, 2020

Any sponsor of a safe harbor plan may amend its plan between March 13, 2020, and August 31, 2020, to reduce or suspend safe harbor contributions (either match or nonelective) without condition. However, special rules related to the supplemental notice apply as explained next.

Supplemental Notice

Typically, if a reduction or suspension of safe harbor contributions will occur, a 30-day advance notice rule applies. This supplemental notice must explain 1) the consequences of the suspension or reduction of contributions; 2) how participants may change their deferral elections as a result; and 3) when the amendment takes effect.

COVID-19 Relief for Supplement Notice for Nonelective Contributions

Sponsors who reduce or suspend 401(k) safe harbor nonelective contributions will satisfy the 30-day supplemental notice requirement, provided the sponsor

  • Gives the notice to employees no later than August 31, 2020, and
  • Adopts the required plan amendment no later than the effective date of the reduction or suspension of safe harbor nonelective contributions.

There is no relief on the timing of the supplemental notice under Notice 2020-52 for sponsors who reduce or suspend safe harbor matching contributions. Sponsors must give 30 days notice via a supplemental notice to participants before the reductions can take place.

Other Procedural Requirements

Typically, an employer that suspends or reduces safe harbor contributions must also

  1. Give participants a reasonable opportunity after they receive the supplemental notice and before the reduction or suspension of employer contributions to change their contribution elections;
  2. Amend the plan to apply the actual deferral percentage (ADP) and/or actual contribution percentage (ACP) Tests for the entire plan year; and
  3. Allocate to the plan any contributions that were promised before the amendment took effect.

Additional Notice 2020-52 Relief: Mid-Year Safe Harbor Contribution Reductions for Highly Compensated Employees

Pursuant to Notice 2020-52, a plan sponsor may choose to reduce or suspend 401(k) safe harbor contributions for highly compensated employees (HCEs) alone. In such cases, the plan sponsor must provide an

  • Updated safe harbor notice and
  • Opportunity for participants to update their elections, determined as of the date of issuance of the updated safe harbor notice.

Conclusion

In the past, the ability of sponsors to amend their 401(k) [or 403(b)] safe harbor plans to reduce or suspend employer matching or nonelective safe harbor contributions mid-year was limited. The IRS expanded those opportunities under IRS Notice 2020-52 in order to provide relief in light of the Covid-19 pandemic.

As part of this change however, you might wish to consider a 409A (discretionary) deferred compensation plan for participants who might be subject to any “refunds” from the plan not meeting the “Top Hat” percentages at the end of the year. If the participants are given the ability to amend their qualified plan contributions as part of the employer reduction, they can redirect those funds that the participants wanted for retirement back into their account and avoid current taxation.

Income for Life

When you are closing in on retirement, the most important thing is that you have income for life. How do you do that? Well, listen to retirement expert Tom Hegna discuss the math and science behind how you can guarantee that you never run out of money regardless of market returns.

In this video, Tom Hegna discusses what an Income Annuity is. How it acts likes Social Security or a Defined Benefit Pension. And why you must have this in your portfolio as part of your “assets’ in retirement, regardless of how much you have.

At Schiff Benefits Group, we help business owners and their key employees create streams of income in retirement that can’t be found by just using your IRA to draw income. At the same time, we protect against a downturn in the market, a long term care event, and a death of your spouse in retirement. Send us an email or call us to learn more.

The “perfect” plan

Ever wanted the “perfect” executive benefits plan where the company gets a current deduction when the money is paid into the plan, the cash grows tax deferred, and then the participant get the money “tax free”? Well look no further.

It’s called a Restricted Executive Bonus plan and combines to different benefits in one. It has to be done carefully to meet IRS guidelines, but is 100% legal. Nice thing is, it’s not carrier or product specific, and has the flexibility as to what type of asset you want in the plan.

To learn more, give us a call or check out our Executive Bonus material. We’d be happy to design a sample for you so that you keep your best people.

Buy/Sell Insurance – How to do it for the least out of pocket

A short video about buy/sell insurance

What would happen if your business partner died suddenly? You’d be in business with his/her widow. Do you really want to do that?

No. Instead, you want to buy the “cheapest” insurance you can buy at the lowest cost. But many times, you need insurance for 20 or 30 years. In addition, when you pay that premium, it’s gone.

What if you could have the same cash flow for a permanent policy as a term insurance policy, have the bank pay your premium, and then in the future, create a stream of income that potential buyout you or your partner in retirement? Wouldn’t that be the best of all words? Well you can. You just have to be able to qualify.

Why you should have Long Term Care Insurance

Long Term Care Insurance – It’s about the Coordinated Care Provider

Everyone should have long term care insurance. For individuals over 45, this is the one benefit that you have a 70% chance of using during your lifetime. And the most important benefit is the Coordinated Care Provider that comes with it.

Retain your Key People with “Ownership” Like Benefits

Have you lost a key employee because they didn’t have “ownership” in the company? You can design a benefit for your “key” employees, makes your best people feel like they are an owner so that they never want to leave.

For more, check out our Phantom Stock articles

Discount on Life Insurance

Would you like to know how to get a discount on your life insurance Do you like wearing your fitbit to track your steps and your workout? Well that same tech can help you save money on your life insurance with some carriers. Check out this short video about this new feature from the carriers and then give us a call. We can help you save money on something that you already need.

NQDC (409A) – Deferred Compensation – A Short Overview – You Tube

Watch this video and learn about the NQDC (409A) – Deferred Compensation Plans and how you can implement one easily

Suits – The Interview

What does the TV show Suits have to do with a deferred compensation and an insurance consulting firm? Well, Mike Ross, while running from the cops, runs into the interview room of Harvey Specter, a Harvard Lawyer who is interviewing new associates.

During their brief encounter, Mike is quizzed on a number of legal matters, one of which is 409A. Check out this clip at 5:55 where the topic comes up.

Watch for Stock Option Backdating at 5:55 into video

IRS Guidance Regarding the Section 4960 Excise Tax Is (Somewhat) Helpful

http://www.employeebenefitsupdate.com/benefits-law-update/2019/3/26/irs-guidance-regarding-the-section-4960-excise-tax-is-somewh.html

Tuesday, March 26, 2019 at 6:23PM

IRS Guidance Regarding the Section 4960 Excise Tax Is (Somewhat) Helpful

http://www.employeebenefitsupdate.com/benefits-law-update/author/eda

IRS Notice 2019-09 provides guidance intended to help “applicable tax-exempt employers” determine whether compensation paid to their most highly compensated employees will be subject to the 21 percent excise tax imposed under Code Section 4960.  Notice 2019-09 is indeed helpful to those of us who have to interpret the provisions of Code Section 4960.  But tax-exempt employers subject to Code Section 4960 have serious work to do in order to comply with these relatively new rules, and some tax-exempt employers will be disappointed in the results.  (In general, compensation paid by a Section 501(c)(3) organization will be subject to the requirements of Code Section 4960, so we will simply reference tax-exempt employers for these purposes.)

Excise Tax Under Code Section 4960

Enacted as part of the 2017 Tax Cuts and Jobs Act, Code Section 4960 imposes a 21 percent excise tax on: (1) compensation paid by a tax-exempt employer to a “covered employee” in excess of $1 million in any year; and (2) “excess parachute payments” paid by a tax-exempt employer to a covered employee.  A Section 4960 excess parachute payment is a payment made contingent upon a termination of employment, if the payment amount equals or exceeds the terminating employee’s average annual taxable compensation over the preceding five years.  The tax on an excess parachute payment is due on the portion of the payment that exceeds the covered employee’s average annual compensation (not just the portion in excess of $1 million).  

Covered Employees and Related Organizations

The identification of covered employees is a major topic addressed by Notice 2019-09.  In general, a covered employee is an individual who is one of the five highest paid employees of the exempt organization in any taxable year beginning after December 31, 2016.  There is no minimum compensation threshold that applies in determining covered employee status.  And, perhaps most important, once an individual is identified as a covered employee she will remain a covered employee – forever.  This means that a tax-exempt employer must identify its covered employees every year and keep track of them on an ongoing basis. 

A tax-exempt employer must identify its covered employees based not only on remuneration paid by that employer, but also taking into account remuneration for services performed by the individual as an employee of any “related organization” of the employer.  Under Notice 2019-09, a related organization is any entity that is under common control with a tax-exempt employer using a more-than-50 percent control test.  This approach may create headaches for many tax-exempt employers, who are used to the 80 percent control test that generally applies in determining the members of a controlled group of exempt organizations.  So a tax-exempt employer within an integrated health system, for example, must determine the extent to which remuneration must be imputed to an employee for services from a related organization that may only be 50 percent owned by the employer in determining covered employee status.  Moreover, an individual can be deemed to be an employee of more than one tax-exempt employer.  Therefore, it is possible that a single employee could be a covered employee with respect to more than one tax-exempt employer within a system.  Finally, given the “forever” status of covered employees, the recordkeeping headaches will multiply when, for example, two health systems merge.

Compensation Is Considered Paid When Vested and on a Calendar Year Basis

Code Section 4960 states that compensation will count toward the $1,000,000 threshold when it ceases to be subject to a substantial risk of forfeiture (i.e., when it vests), rather than when it is paid.  But Notice 2019-09 includes a helpful grandfathering rule.  Specifically, amounts that were earned and vested prior to the employer’s taxable year beginning in 2018 do not count toward the threshold.

Notice 2019-09 also clarifies that the excise tax is determined on a calendar year basis, not based on the taxable year of the employer.  This should reduce the administrative burden that might otherwise arise if employers were required to allocate compensation paid during a single calendar year to multiple fiscal years. 

Severance Pay Below $1 million Can Be Subject to the Excise Tax

Excess parachute payments paid to a covered employee can be subject to the 21 percent excise tax even if those payments amount to less than $1 million.  While conceptually similar to the “golden parachute” concept under Code Section 280G, which applies where a payment is made in connection with a change in control of a for-profit company, Notice 2019-09 takes an expansive view as to what is an excess parachute payment under Section 4960.  Subject to only a few exceptions, most types of compensation triggered by an involuntary separation can potentially be considered a parachute payment.  For example, payments made contingent upon complying with a non-compete are included, as is the value of benefits where vesting is accelerated, even if no actual payment is made.  An involuntary separation from service for this purpose generally includes an employee’s termination of employment without cause, an employee’s failure to renew a contract, and a termination of employment by an employee for good reason.  There are also special provisions defining separation from service broadly to include certain changes to the service relationship, even if an employee is still employed by the tax-exempt employer.  The total payments in the nature of compensation that are contingent upon an involuntary separation from service will only be parachute payments if they are three or more times the employee’s base amount (which is the measure of taxable compensation applied under Code Section 280G).  Excess parachute payments equal the portion of the parachute payments that exceeds the base amount.

Multiple Employers Within a Tax-Exempt Controlled Group Can Each Be Subject to Tax 

Notice 2019-09 confirms that separate tax-exempt members of a controlled group can each be subject to the excise tax.  (Think of a health system made up of multiple hospitals and other institutional health care providers.)  This means that each tax-exempt employer must separately determine which of its employees are covered employees rather than determining the five highest paid employees across the entire integrated health system.  So a controlled group of tax-exempt employers could potentially have several employers with dozens of employees earning compensation that triggers the excise tax.  Consistent with this idea, the Notice includes rules for allocating the excise tax among a tax-exempt employer and related organizations.  A careful application of these rules will be particularly important in a health system with covered employees who provide services to, and receive compensation from, more than one related organization. 

The Good News?

The IRS expects to issue further guidance regarding the application of Code Section 4960.  In the meantime, tax-exempt employers may determine the applicability of the excise tax based on a “good faith, reasonable interpretation” of Code Section 4960, informed by Notice 2019-09.  Accordingly, tax-exempt employers who are subject to Code Section 4960 should adopt consistent and reasonable approaches to the application of the excise tax based on all of the facts and circumstances.  For tax-exempt employers that are part of a large group, we suggest a coordinated strategy starting at the parent entity and working down from there.

Author

Eric D. Altholz |