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Presents TRAPS FOR THE UNWARY Felicia A. Finston [email protected] NONDISCRIMINATION TESTING

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Page 1: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Presents

TRAPS FOR THE UNWARY

Felicia A. Finston

[email protected]

NONDISCRIMINATION TESTING

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Slide No. 2

Ensure plan does not discriminate in

favor of highly compensated employees

(“HCEs”) as to eligibility or benefits (i.e.,

same benefits must be provided to non-

HCEs (“NHCEs”))

Required as a condition of tax

qualification

Purpose of Nondiscrimination Testing

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Slide No. 3

Components of Nondiscrimination Testing

(“NDT”)

Common NDT Gotchas

Safe Harbor Plan Designs

Prior Year v. Current Year Testing

Leased Employee Coverage Issues

Prototype v. Individually Designed Plans

ROAD MAP

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Slide No. 4

Code and regulations

• Apply to all qualified plans

• Different tests for different purposes

Terms of the plan document

• Employer specific

• Must comply with regulations

Participant contribution data

Components of NDT

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Slide No. 5

Basic Tests Name Code

Section Description Applies To Failure

Rate

Coverage 410(b) Ensures plan provides benefits to a sufficient percentage of employees

Plan Rare

Contributions 401(a)(4) Applies to defined benefit and defined contribution plans (other than elective deferrals and match) to ensure contributions don’t discriminate in favor of HCEs

Plan Rare

Actual Deferral Percentage (“ADP”)

401(k) Ensure HCE elective deferral percent does not exceed Non-HCE deferral percent by more than specific amount (generally 2%)

Plan Common

Actual Contribution Percentage (“ACP”)

401(m) Ensure HCE after-tax and matching contribution percent does not exceed Non-HCE after-tax and matching contribution percent by more than specific amount (generally 2%)

Plan Common

Deferrals 402(g) Ensure participant deferrals do not exceed a stated limit

Participant Rare

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Slide No. 6

Additional Tests

Name Code Section

Description Applies To Failure Rate

Annual Additions

415 Ensures contributions to a defined contribution plan don’t exceed the lesser of 100% of compensation or a specific dollar amount

Participant Rare

Annual Benefits

415 Ensures benefits paid from a defined benefit plan do not exceed a specific dollar amount

Participant Rare

Minimum Participation

401(a)(26) Requires defined benefit plan to cover a minimum number of participants

Plan Common

Top Heavy 416 Ensure benefits provided to key employees do not exceed 60% of contributions and benefits provided to non-key employees

Plan Rare for large plans; common for small

Benefits, Rights and Features

401(a)(4) Ensure specific rights and features, such as contribution levels, do not discriminate in favor of HCEs

Plan Not Uncommon

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Slide No. 7

Compensation

Frozen Benefits

Benefits, Rights or Features

Tiered Contribution Formulas

Common NDT Gotchas

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Slide No. 8

Uses Elements

Compensation

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Slide No. 9

Contributions and Benefits

Determine HCEs

ADP/ACP Testing

Amounts Testing

415

Compensation Uses

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Slide No. 10

Specific definitions of compensation

apply for determining HCEs and NDT

Generally, sponsor has discretion in

determining compensation for

contribution purpose

Multiple definitions of compensation

may be used, but increase complexity

of administering the plan

Compensation Uses

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Slide No. 11

W-2 Gross

415 414(s)

404

Compensation Elements

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Slide No. 12

Ability to track desired definition of

compensation (e.g., W-2 versus

something else)

Cost – benefit of having multiple

definitions of compensation

Imputed income items

Things to Consider

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Slide No. 13

Plan definitions of compensation may not

be implemented correctly

• Payroll may not communicate with benefits

• Pay codes may not clearly fall within or outside

plan definitions

• Administrative burdens of tracking varying

definitions lead to errors

Complicated vocabulary makes effective

communication with providers difficult

Failure to implement 401(a)(17) limit

Common Pitfalls

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Slide No. 14

Employer contribution allocations are

incorrect

• Correction is time consuming and expensive

(e.g., VCP, audit penalties, additional funding)

• Employee relations issues which can impact

future participation and testing

Incorrect compensation is used for testing

• Different required definitions may not be

followed

• Compensation elements within definition are

incorrect

• Requires retesting and could lead to penalties

Impact

Page 15: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 15

Limit number of compensation definitions

in plan document if possible

Always track “gross” compensation, it’s

needed for testing

Review ACP test for match $ or % above

the plan limits

Review annual HCE determination and

compare it to last year

Periodically review pay codes and

compare with plan definitions of

compensation

Administrative Tips

Page 16: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 16

A frozen benefit situation occurs when the

benefits or contributions under the plan

are frozen (i.e., closed to new entrants)

• Plan must continue to satisfy 410(b) (and

401(a)(26) if a defined benefit plan) and

applicable amounts NDT (e.g., ACP/ADP or

general test)

• A plan that benefits no HCEs will automatically

satisfy NDT

Frozen Benefits

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Slide No. 17

Sometimes plans freeze participants’

rights to certain benefit, rights or features

(“BRFs”) (e.g., a lump sum form of

distribution, death benefits, right to direct

investments, etc.)

• Benefit must be currently available (i.e., satisfy

section 410(b))

• Benefit must be effectively available (i.e.,under

facts and circumstances available to not just

HCEs)

• Determined as of freeze date

Frozen Benefits, Rights and Features

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Slide No. 18

When BRF is only available to active

employees whose benefits are frozen the

following tests must be met:

• The BRF must satisfy the current and effective

availability tests with respect to the frozen

participants

• There must not have been any change in the

availability of the BRF, or

• Any change in the availability of the BRF is

made in a nondiscriminatory manner

Frozen BRFs Limited to Frozen Benefits

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Slide No. 19

Contributions may vary based on age,

years of service or facility

Subject to multiple NDT

• Amounts testing (e.g., ACP test)

• BRF testing

• Failures can only be corrected by expanding

tier to NHCEs

Tiered Contribution Formulas

Page 20: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 20

Run preliminary test before the year to avoid

surprises

Utilize transition period in a merger and

acquisition to determine going forward game plan

Consider how population will evolve over time

Consider plan designs to simplify administration

Administrative Tips

Page 21: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 21

Formulaic method of satisfying ADP

and ACP test

Three types

• 3% nonelective

• Non-automatic enrollment safe

harbor match

• Automatic enrollment safe harbor

match

Safe Harbor Plans

Page 22: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 22

Must adopt before 12 month plan year

unless exception applies

Notice requirements

Limited ability to amend plan mid year

Limited ability to suspend contributions

mid year

Safe Harbor Requirements

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Slide No. 23

Incorrect compensation

used

Eligibility provisions misapplied

Discretionary match provisions

gone wrong

Component plan testing failures

Notice requirements

Safe Harbor Plan Pitfalls

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Slide No. 24

Remember the safe harbor ≠ a testing

exemption

Beware of discretionary match - not

allowed with automatic enrollment safe

harbor

For safe harbor match, check that every

participant who deferred got one

Review definition of compensation

Give timely notice and spring plan if

necessary

Administrative Tips

Page 25: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 25

Method of ACP and ADP testing

Must be specified in document

Limits plan aggregation

Specific rules on changing methods

Prior Year vs. Current Year Testing

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Slide No. 26

What Is it

• Method where last years NHCE ADP testing is used for current year

Why is it used

• Belief it helped HCEs determine how much they could defer each year

Problem

• Test results aren’t available soon enough for planning

• Error in one year cascades to others

Prior Year Testing Method

Page 27: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 27

Limited ability to use QNECs or QMACs to

satisfy testing because they have to be

allocated before end of the plan year being

tested

If different methods are used for ADP and

ACP then

• Can’t recharacterize elective deferrals as after-

tax contributions,

• can’t use elective deferrals under ACP and

• QMACs can’t be taken into account under ADP

Potential Gotchas

Page 28: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 28

Ensure plan specifies testing method

being used

If prior year is specified, ask why and if

a reason cannot be articulated consider

amending plan

Administrative Tips

Page 29: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 29

Individual who provides services to the

employer pursuant to an agreement on

a substantially full-time basis for at least

one year under the primary direction

and control of the employer

Not required to cover, but count in

410(b) testing

Code’s limited safe harbor for leasing

company that maintains a money

purchase plan rarely applies

Leased Employee Issues

Page 30: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 30

Plan terms don’t exclude leased

employees

Leased employees not considered in

NDT

Hours worked as leased employee

count for eligibility and vesting

Transfer from employee to leased

employee isn’t a separation from

service

Common Pitfalls

Page 31: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 31

Be sure plan terms exclude leased

employees from participation

Be sure you track leased employee

hours for eligibility and vesting

Be sure you consider leased employees

in NDT

Benefits provided to leased employees

may be counted under your NDT

Administrative Tips

Page 32: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 32

Consists of adoption agreement and

base plan document

Employer selects design options in

adoption agreement

Prototype sponsor obtains opinion letter

from the Internal Revenue Service

employer can rely on

Prototype sponsor responsible for

document updates

Prototype Plans

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Slide No. 33

Custom amendments may negate

prototype status

Plan will incur cost and inconvenience

of needing to obtain determination letter

Future amendments will need to be

managed by plan sponsor

Ancillary documents will need to be

managed by plan sponsor

Prototype Plan Amendment Pitfalls

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Slide No. 34

Run all amendments by prototype

sponsor to ensure desired change can

be accommodated

If amendment will impact prototype

status, consider need and timing

Administrative Tips

Page 35: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 35

Prototype plan will outline certain NDT

provisions

HCE determination

ADP/ACP testing

Top Heavy

Prototype plan will specify compensation

that may be used for contribution

purposes

Prototype NDT Pitfalls

Page 36: NONDISCRIMINATION TESTING - Dallas, TX - Home … No. 3 Components of Nondiscrimination Testing (“NDT”) Common NDT Gotchas Safe Harbor Plan Designs Prior Year v. Current Year Testing

Slide No. 36

Make sure you review NDT provisions

of prototype plan before you adopt it to

ensure you can capture and administer

relevant compensation definitions

If you change prototype plans make

sure provisions of the new document

are the same or you are aware and

want differences

Administrative Tips

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Slide No. 37

The information presented in this presentation is of a general nature and should not be

considered as legal or tax advice.

You are encouraged to seek direct counsel on legal matters. To ensure compliance with

requirements imposed by U.S. Treasury Regulations, we advise you that any U.S. tax

advice contained in this communication was not intended or written to be used, and cannot

be used, for the purpose of avoiding penalties under the Internal Revenue Code.

Questions??