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dopting A Written 401k Plan

To adopt a tax advantaged 401(k) plan, you can use an IRS-approved master or prototype plan offered by a sponsoring organization or an individually designed plan.

Written Plan Requirement

To qualify, the plan you set up must be in writing and must be communicated to your employees. The plan's provisions must be stated in the plan. It is not sufficient for the plan to merely refer to a requirement of the Internal Revenue Code.

Master Or Prototype Plans. Most qualified plans follow a standard form of plan (a master or prototype plan) approved by the IRS. Master and prototype plans are plans made available by plan providers for adoption by employers (including self-employed individuals). Under a master plan, a single trust or custodial account is established, as part of the plan, for the joint use of all adopting employers. Under a prototype plan, a separate trust or custodial account is established for each employer.

Sponsors of Prototype Plans. 401(k) plans have the highest annual contribution ceiling of any of the tax-deferred defined contribution savings programs (IRAs, SEPs, etc.). More money contributed equals more money earning money, equals more money in the account 20 years later. Add to this earning potential the convenience of contributions made through automatic payroll deductions and it’s easy to see why 401(k)s are so popular---just ask the employees of Target Labs (www.targetlab.com) a small California-based employer.

Plan Providers. The following organizations generally can provide IRS-approved master or prototype plans.

Banks (including some savings and loan associations and federally insured credit unions).

Trade or professional organizations.

Insurance companies.

Mutual funds.

Individually Designed Plan. If you prefer, you can set up an individually designed plan to meet specific needs. Although advance IRS approval is not required, you can apply for approval by paying a fee and requesting a determination letter. You may need professional help for this. Revenue Procedure 2003-6 in Internal Revenue Bulletin 2003-1 may help you decide whether to apply for approval. Internal Revenue Bulletins are available on the IRS website at www.irs.gov. They are also available at most IRS offices and at certain libraries.

User Fee. The fee mentioned earlier for requesting a determination letter does not apply to certain requests made in 2003 and later years, by employers who have 100 or fewer employees who received at least $5,000 of compensation from the employer for the preceding year. At least one of them must be a non-highly compensated employee participating in the plan. The fee does not apply to requests made by the later of the following dates.

The end of the 5th plan year the plan is in effect.

The end of any remedial amendment period for the plan that begins within the first 5 plan years.

The request cannot be made by the sponsor of a prototype or similar plan the sponsor intends to market to participating employers.

More information about whether the user fee applies is in Revenue Procedure 2003-8 and Notice 2003-49.

Elective Deferrals

Participants can choose (elect) to have you contribute part of their before-tax compensation to the plan rather than receive the compensation in cash. This contribution is called an “elective deferral” because participants choose (elect) to set aside the money, and they defer the tax on the money until it is distributed to them.

Alternatively, your 401(k) plan can have an automatic enrollment feature. Under this feature, you can automatically reduce an employee's pay by a fixed percentage and contribute that amount to the 401(k) plan on his or her behalf unless the employee affirmatively chooses not to have his or her pay reduced or chooses to have it reduced by a different percentage. These contributions qualify as elective deferrals. More information about 401(k) plans with an automatic enrollment feature is in Revenue Ruling 2000-8.

Limit On Elective Deferrals

There is a limit on the amount an employee can defer each year under these plans. This limit applies without regard to community property laws. Your plan must provide that your employees cannot defer more than the limit that applies for a particular year. For 2003, the basic limit on elective deferrals is $12,000. (For 2004, this limit increases to $13,000.) If, in conjunction with other plans, the deferral limit is exceeded, the difference is included in the employee's gross income.

Catch-Up Contributions. A 401(k) plan can permit participants who are age 50 or over at the end of the calendar year to also make catch-up contributions. The catch-up contribution limit for 2003 is $2,000 ($3,000 for 2004). Elective deferrals are not treated as catch-up contributions for 2003 until they exceed the $12,000 limit, the ADP test limit of Internal Revenue Code section 401(k)(3), or the plan limit (if any). However, the catch-up contribution a participant can make for a year cannot exceed the lesser of the following amounts.

The catch-up contribution limit.

The excess of the participant's compensation over the elective deferrals that are not catch-up contributions.

Treatment Of Contributions. Your contributions to a 401(k) plan are generally deductible by you and tax free to participating employees until distributed from the plan.

Participating employees have a nonforfeitable right to the accrued benefit resulting from these contributions. Deferrals are included in wages for social security, Medicare, and federal unemployment (FUTA) tax.

Reporting On Form W-2. You must report the total amount deferred in boxes 3, 5, and 12 of your employee's Form W-2. See the Form W-2 instructions.

Treatment Of Excess Deferrals

If the total of an employee's deferrals is more than the limit for 2003, the employee can have the difference (called an excess deferral) paid out of any of the plans that permit these distributions. He or she must notify the plan by April 15, 2004 (or an earlier date specified in the plan), of the amount to be paid from each plan. The plan must then pay the employee that amount by April 15, 2004.

Excess Withdrawn By April 15. If the employee takes out the excess deferral by April 15, 2004, it is not reported again by including it in the employee's gross income for 2004. However, any income earned on the excess deferral taken out is taxable in the tax year in which it is taken out. The distribution is not subject to the additional 10% tax on early distributions.

If the employee takes out part of the excess deferral and the income on it, the distribution is treated as made proportionately from the excess deferral and the incomeEven if the employee takes out the excess deferral by April 15, the amount is considered contributed for satisfying (or not satisfying) the nondiscrimination requirements of the plan, unless the distributed amount is for a non-highly compensated employee who participates in only one employer's 401(k) plan or plans.

Excess Not Withdrawn By April 15. If the employee does not take out the excess deferral by April 15, 2004, the excess, though taxable in 2003, is not included in the employee's cost basis in figuring the taxable amount of any eventual benefits or distributions under the plan. In effect, an excess deferral left in the plan is taxed twice, once when contributed and again when distributed. Also, if the entire deferral is allowed to stay in the plan, the plan may not be a qualified plan.

Reporting Corrective Distributions On Form 1099-R. Report corrective distributions of excess deferrals (including any earnings) on Form 1099-R. For specific information about reporting corrective distributions, see the Instructions for Forms 1099, 1098, 5498, and W-2G.

Tax On Excess Contributions Of Highly Compensated Employees. The law provides tests to detect discrimination in a plan. If tests, such as the actual deferral percentage test (ADP test) (see section 401(k)(3)) and the actual contribution percentage test (ACP test) (see section 401(m)(2)), show that contributions for highly compensated employees are more than the test limits for these contributions, the employer may have to pay a 10% excise tax. Report the tax on Form 5330. The ADP and ACP tests do not apply to safe harbor 401(k) plans.

The tax for the year is 10% of the excess contributions for the plan year ending in your tax year. Excess contributions are elective deferrals, employee contributions, or employer matching or nonelective contributions that are more than the amount permitted under the ADP test or the ACP test.

Notice 98-1 provides further guidance and transition relief relating to the nondiscrimination rules under sections 401(k) and 401(m).


Amounts paid to plan participants from a qualified plan are called distributions. Distributions may be nonperiodic, such as lump-sum distributions, or periodic, such as annuity payments.

Distributions From 401(k) Plans

Generally, distributions cannot be made until one of the following occurs.

The employee retires, dies, becomes disabled, or otherwise severs employment.

The plan ends and no other defined contribution plan is established or continued.

In the case of a 401(k) plan that is part of a profit-sharing plan, the employee reaches age 59½ or suffers financial hardship. For the rules on hardship distributions, including the limits on them, see section 1.401(k) - 1(d)(2) of the regulations.

Caution. Certain distributions listed above may be subject to the tax on early distributions discussed later.

Qualified Domestic Relations Order (QDRO). These distribution restrictions do not apply if the distribution is to an alternate payee under the terms of a QDRO.

Tax Treatment Of Distributions

Distributions from a qualified plan minus a prorated part of any cost basis are subject to income tax in the year they are distributed. Since most recipients have no cost basis, a distribution is generally fully taxable. An exception is a distribution that is properly rolled over as discussed next under Rollover.

The tax treatment of distributions depends on whether they are made periodically over several years or life (periodic distributions) or are nonperiodic distributions.

Rollover. The recipient of an eligible rollover distribution from a qualified plan can defer the tax on it by rolling it over into a traditional IRA or another eligible retirement plan. However, it may be subject to withholding as discussed under Withholding requirement, later.

Eligible rollover distribution. This is a distribution of all or any part of an employee's balance in a qualified retirement plan that is not any of the following.

A required minimum distribution. See Required Distributions, below.

Any of a series of substantially equal payments made at least once a year over any of the following periods.

The employee's life or life expectancy.

The joint lives or life expectancies of the employee and beneficiary.

A period of 10 years or longer.

A hardship distribution.

The portion of a distribution that represents the return of an employee's nondeductible contributions to the plan. See Tip, below.

A corrective distribution of excess contributions or deferrals under a 401(k) plan and any income allocable to the excess, or of excess annual additions and any allocable gains.

Loans treated as distributions.

Dividends on employer securities.

The cost of life insurance coverage.

Tip. A distribution of the employee's nondeductible contributions may qualify as a rollover distribution. The transfer must be made either (1) through a direct rollover to a defined contribution plan that separately accounts for the taxable and nontaxable parts of the rollover or (2) through a rollover to a traditional IRA.

Withholding Requirement. If, during a year, a qualified plan pays to a participant one or more eligible rollover distributions (defined earlier) that are reasonably expected to total $200 or more, the payor must withhold 20% of each distribution for federal income tax.

Exceptions. If, instead of having the distribution paid to him or her, the participant chooses to have the plan pay it directly to an IRA or another eligible retirement plan (a direct rollover), no withholding is required.

If the distribution is not an eligible rollover distribution, defined earlier, the 20% withholding requirement does not apply. Other withholding rules apply to distributions such as long-term periodic distributions and required distributions (periodic or non-periodic). However, the participant can still choose not to have tax withheld from these distributions. If the participant does not make this choice, the following withholding rules apply.

For periodic distributions, withholding is based on their treatment as wages.

For non-periodic distributions, 10% of the taxable part is withheld.

Estimated Tax Payments. If no income tax is withheld or not enough tax is withheld, the recipient of a distribution may have to make estimated tax payments.

Tax On Early Distributions

If a distribution is made to an employee under the plan before he or she reaches age 59½, the employee may have to pay a 10% additional tax on the distribution. This tax applies to the amount received that the employee must include in income.

Exceptions. The 10% tax will not apply if distributions before age 59½ are made in any of the following circumstances.

Made to a beneficiary (or to the estate of the employee) on or after the death of the employee.

Made due to the employee having a qualifying disability.

Made as part of a series of substantially equal periodic payments beginning after separation from service and made at least annually for the life or life expectancy of the employee or the joint lives or life expectancies of the employee and his or her designated beneficiary. (The payments under this exception, except in the case of death or disability, must continue for at least 5 years or until the employee reaches age 59½, whichever is the longer period.)

Made to an employee after separation from service if the separation occurred during or after the calendar year in which the employee reached age 55.

Made to an alternate payee under a qualified domestic relations order (QDRO).

Made to an employee for medical care up to the amount allowable as a medical expense deduction (determined without regard to whether the employee itemizes deductions).

Timely made to reduce excess contributions under a 401(k) plan.

Timely made to reduce excess employee or matching employer contributions (excess aggregate contributions).

Timely made to reduce excess elective deferrals.

Made because of an IRS levy on the plan.

Reporting The Tax. To report the tax on early distributions, file Form 5329, Additional Taxes on Qualified Plans (Including IRAs) and Other Tax-Favored Accounts. See the form instructions for additional information about this tax.

Required Distributions

A qualified plan must provide that each participant will either:

Receive his or her entire interest (benefits) in the plan by the required beginning date (defined later), or

Begin receiving regular periodic distributions by the required beginning date in annual amounts calculated to distribute the participant's entire interest (benefits) over his or her life expectancy or over the joint life expectancy of the participant and the designated beneficiary (or over a shorter period).

These distribution rules apply individually to each qualified plan. You cannot satisfy the requirement for one plan by taking a distribution from another. The plan must provide that these rules override any inconsistent distribution options previously offered.

Minimum Distribution. If the account balance of a qualified plan participant is to be distributed (other than as an annuity), the plan administrator must figure the minimum amount required to be distributed each distribution calendar year. This minimum is figured by dividing the account balance by the applicable life expectancy.

Minimum Distribution Incidental Benefit Requirement. Minimum distributions must also meet the minimum distribution incidental benefit requirement. This requirement ensures the plan is used primarily to provide retirement benefits to the employee. After the employee's death, only “incidental” benefits are expected to remain for distribution to the employee's beneficiary (or beneficiaries).

Required Beginning Date. Generally, each participant must receive his or her entire benefits in the plan or begin to receive periodic distributions of benefits from the plan by the required beginning date.

A participant must begin to receive distributions from his or her qualified retirement plan by April 1 of the first year after the later of the following years.

Calendar year in which he or she reaches age 70½.

Calendar year in which he or she retires.

However, the plan may require the participant to begin receiving distributions by April 1 of the year after the participant reaches age 70½ even if the participant has not retired.

If the participant is a 5% owner of the employer maintaining the plan or if the distribution is from a traditional or SIMPLE IRA, the participant must begin receiving distributions by April 1 of the first year after the calendar year in which the participant reached age 70½.

Distributions After The Starting Year. The distribution required to be made by April 1 is treated as a distribution for the starting year. (The starting year is the year in which the participant meets (1) or (2) above, whichever applies.) After the starting year, the participant must receive the required distribution for each year by December 31 of that year. If no distribution is made in the starting year, required distributions for 2 years must be made in the next year (one by April 1 and one by December 31).

Distributions After Participant's Death. Special rules cover distributions made after the death of a participant.

Retirement Plans for Small Businesses

Retirement plans are vehicles which may be used to set aside tax-deferred compensation for use by individuals at their retirement. The information in this section covers the topics for starting and maintaining a small business retirement savings plan.
Retirement Plans for Small Businesses
IRA-Based Plans
Payroll Deduction IRAs, SARSEPs, SEPs, and SIMPLE IRA Plans are “No Fuss” plans that range from those with little employer involvement to those that the employer establishes and funds.
Small Business Resource Guide - Starting Your Business - Retirement Plans for Small Businesses
An online version of the Retirement Plans portion of the 2004 Small Business Resource Guide CD. This extract (with updates) contains information useful in choosing an appropriate retirement plan.
Publication 3998 - Choosing a Retirement Solution for your Small Business
Starting a small business retirement savings plan can be easier than most business people think. What’s more, there are a number of retirement programs that provide tax advantages for both employers and employees.
2004 Tax Forum Presentation - The ABCs of 401(k)
A presentation detailing the basics of 401(k) plans.
2004 Tax Forum Presentation - “No Fuss” Retirement Plans
An update of last year’s presentation about the basics of IRA-based retirement plans.
2003 Tax Forum Presentation
“No Fuss” Retirement Plans - the basics of IRA-based retirement plans.
2002 Tax Forum Presentation
“Retire with a PLAN” - Help Your Clients Choose a Retirement Plan For Their Employees
2002 Tax Changes: IRAs/Retirement Plans
Taxpayers will find many changes affecting their retirement planning as a result of the Economic Growth and Tax Relief Reconciliation Act of 2001 and regulations issued during 2002. They may also be able to contribute more to retirement plans, get larger tax benefits doing so, and have more options for handling plan distributions.
Small Business - One Stop Resource
Tax forms, publications and other useful information for business owners and tax professionals.

Retirement Plan Life Cycle
Every retirement plan has a life cycle, with four distinct stages through which the plan evolves. Before starting a plan, you may want to learn about this cycle. This article offers a basic understanding of the life cycle of a retirement plan and presents previously-released materials grouped in accordance with their applicable life cycle stage.

Retirement Plan Life Cycle

Retirement Plans are vehicles which may be used to set aside tax deferred compensation for use by individuals at their retirement. There are many types of retirement plans, including defined benefit, pension profit-sharing, 401(k), multiemployer, ESOP, 403(b) Annuity, SEP, SIMPLE, IRA and Roth IRA.
Business owners may choose to offer retirement plans like payroll-deduction individual retirement arrangements, simplified employee pensions (SEPs), SIMPLE IRA plans, defined contribution plans (e.g. 401(k), profit-sharing, money purchase), or defined benefit plans.
Individuals may choose a traditional individual retirement arrangement or a Roth individual retirement arrangement in addition to participating in their employer sponsored retirement plan.
Every retirement plan has a life cycle, with four distinct stages through which the plan evolves. Before starting a plan, you may want to learn about this cycle. This article offers a basic understanding of the life cycle of a retirement plan and presents previously-released materials grouped in accordance with their applicable life cycle stage.
The four stages of a retirement plan are: (1) choosing, (2) establishing, (3) operating, and (4) terminating.

Tax Information for Retirement Plans
Useful information to plan sponsors, plan administrators, plan practitioners, or other professionals who provide services to retirement plans.
Finalize Comprehensive Rules for 401(k) Plans
Final Regulations governing 401(k) plans were issued 12/28/2004

Finalize Comprehensive Rules for 401(k) Plans
Final Regulations governing 401(k) plans were issued 12/28/2004.

S Corporation ESOP Guidance
Guidance and other useful information to assist in understanding issues that may exist with S Corporation ESOPs.

2005 Dollar Limitations
The 2005 annual dollar limitations on benefits and contributions have been issued.

Notice 2004-62
The Internal Revenue Service, the Department of Labor’s Employee Benefits Security Administration and the Pension Benefit Guaranty Corporation are providing relief in connection with certain employee benefit plans because of damage in Florida caused by Tropical Storm Bonnie, Hurricane Charley and Hurricane Frances.

EP Determination Letter Resource Guide
In response to the results of customer satisfaction surveys, the EP Determinations function has developed a user guide to help customers navigate the EP determination letter process. This guide will clarify the various steps in this process and will introduce our customers to resources that are available on the Retirement Plans web site.

EP Abusive Tax Transactions
The IRS is engaged in extensive efforts to curb abusive tax shelter schemes and transactions. A listing of those transactions which require disclosure and other resources have been provided.

Retirement Source for Plan Participants/Employees
A list of topics with useful information for Plan Participants/Employees.

Retirement Tips for Individuals

Tips to help individuals take responsibility for their retirement.

Retirement Source for Plan Sponsors/Employers
A list of topics with useful retirement plan information for Plan Sponsors/Employers.

Retirement tips for employers thinking about adopting a retirement plan and employers with retirement plans.

Have a Comment or Suggestion about Our Content?
Got a comment or suggestion about the Retirement Plans content? Is there some material you would like to see? Write to us or if you have a technical or procedural question, select the topic “EP Customer Services” on the left navigational bar.

Retirement Plan Correction Programs CD-ROM
This CD-ROM provides information on why early identification and correction of plan problems is important and how to use the correction programs offered to plan sponsors by IRS, the U.S. Department of Labor and the Pension Benefit Guaranty Corporation.
Employee Plans News
A publication of the Employee Plans office of the Tax Exempt and Government Entities Operating Division, this newsletter is issued quarterly during the year and provides information about current developments and upcoming events within the retirement plans arena.
Retirement Plans Information from the Department of Labor
If you are looking for more information on this topic, then visit any of the following pages from DOL’s site.

·       A Look at 401K Plan Fees for Employers
·       Exemption Procedures Under Federal Pension Law
·       ERISA Filing Acceptance System (EFAST)
·       Simplified Employee Pensions (SEPs): What Small Businesses Need to Know
·       Savings Incentive Match Plans For Employees of Small Employers (SIMPLE)
·       Easy Retirement Solutions for Small Business
·       Small Business Retirement Savings Advisor
·       Employee Benefits Security Administration
·       U.S. DOL Publications

Filing Requirements for Self-Employed Individuals

As a self-employed individual, you may be responsible for completing the following forms:
If your net earnings are more than $400, and/or if you perform services for a church as an employee and receive income of $108.28 or more, you must pay self-employment (SE) tax using Form 1040, Schedule SE (PDF).
If you are self-employed, a sole proprietor (someone who owns an unincorporated business by yourself), or an independent contractor, you are required to report income and expenses on Schedule C (PDF) or C-EZ (PDF) and calculate your earnings (scroll down to Figuring Earnings Subject to Self-Employment Tax) subject to SE tax. Attach the schedule to your Form 1040, U.S. Individual Income Tax Return.
If you are a member of a partnership that carries on a trade or business, your distributive share of its income or loss from the trade or business is included in your net earnings from self-employment. The partnership must report the business income and expenses on Form 1065, U.S. Return of Partnership Income, along with a Schedule K-1 showing each partner’s net income, and file Schedule SE (Form 1040) to report your individual SE tax.
If you have employees, you must pay employment taxes, including Federal income, Social Security, and Medicare taxes.
If you manufacture or sell certain products, operate certain kinds of businesses, use various kinds of equipment, facilities, or products, or receive payment for certain services, you may need to pay excise taxes.
Estimated tax is the method used to pay (including SE tax) on income not subject to withholding. You generally have to make estimated tax payments if you expect to owe taxes, including self-employment tax, of $1,000 or more when you file your return. Use Form 1040-ES (PDF) to figure and pay the tax..

Employee Plans - A Closer Look

General Introduction
The office of Employee Plans (EP) under the Tax Exempt & Government Entities (TE/GE) operating division of the Internal Revenue Service helps retirement plan sponsors, plan participants, and practitioners working in the retirement benefits arena understand and comply with the pension law.

Historical Background
On September 2, 1974, President Ford signed into law the Employee Retirement Income Security Act of 1974, Public Law 93-406, 93d Cong. 1st Sess. (1974), 1974-3 C.B. 1, (ERISA). The Act completely revised the legal framework of the qualified pension plan as it had previously existed. The most significant innovations of ERISA concerned minimum participation and vesting standards and the manner in which benefits were paid with some protection extending to the surviving spouse of the plan participants. In addition, the Act imposed upon all pension plans certain minimum funding requirements.

Administrative Responsibility for Retirement Plans
Under ERISA, jurisdiction over employee benefit plans was divided among the Internal Revenue Service (IRS), the Department of Labor (DOL) and the Pension Benefit Guaranty Corporation (PBGC).

The responsibility of the IRS centers on plans covered by Internal Revenue Code (IRC) section 401(a), and includes pension, profit-sharing, and stock-bonus plans. The DOL shares some responsibility in this area, but primarily from the perspective of fiduciary responsibility and prohibited transactions. DOL is also responsible for such plans as health and welfare plans, legal aid plans and other plans that are not designed to provide retirement benefits or the deferral of income.

The PBGC is a government corporation created by ERISA that functions as insurer of a minimum guaranteed benefit for certain pension plans. Although jurisdiction is divided among the agencies, the Act requires that they coordinate their activities. This activity most commonly occurs between the IRS and DOL due to the overlap in the nature of their responsibilities.

What We Do
The pension law provides significant tax benefits for sponsors of certain retirement plans (such as 401(k) plans) and the employees that participate in them. Our EP Examinations activities promote voluntary compliance by analyzing operational features of retirement plans. A centralized examination case selection and review process is used to enhance consistency of enforcement activities and to focus resources on the areas of highest noncompliance. Through our Customer Education & Outreach office, we provide services and information about retirement plan requirements. Our services under Rulings and Agreements are designed to help customers understand and comply with the pension law, and assist customers in correcting mistakes that may occur when administering the plan. These services help conserve plan benefits until an employee’s retirement, and help preserve the tax benefits associated with these plans. Additional information regarding our unique services is presented in our online brochure, Publication 3636.

Statistical Information on Retirement Plans

Tax Exempt/Employee Plans Statistics - Employee Plans
IRS statistics on determinations, examinations and annual returns filed.

Findings from the Contingent Work Supplement to the February, 1999 Current Population Survey
DOL statistics on employer sponsorship and coverage among wage and salary workers under pension plans.

Private Pension Plan Bulletin - Abstract of 1998 Form 5500 Annual Reports
DOL statistics on plans, participants, assets, income and expenses based upon 1998 Form 5500 filings.

PBGC 2002 Annual Report
PBGC statistics on defined benefit plans, including multiemployer plans.

Pension Insurance Data Book 2002
Detailed statistics on PBGC program operations and benefit protection.

Accumulation and Distribution of Individual Retirement Arrangements, 2000
Article by Peter J. Sailer, SOI and Sarah E. Nutter, George Mason University
that takes an indepth look at Individual Retirement Arrangements (IRAs).

Multi-Employer Pension Plan Determination and Examination Issues Before the IRS
A presentation by Paul Shultz, Director, Employee Plans Determinations Redesign.


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