The tax code governing 401(k) plans was written to prevent qualified retirement plans from overly favoring highly compensated employees (HCEs).  A series of non-discrimination tests were devised to measure whether a plan’s design or operation tends to favoring the HCEs over the nonhighly compensated employees (NHCEs).  In our last installment we discussed how the Average Deferral Percentage (ADP) test is calculated.  In this article we dive into the different methods of correcting for an ADP test failure

Correcting ADP Failures:   Refunds to HCEs

There are generally two ways to correct a failed ADP/ACP test.  The most-popular correction method is to refund “excess” deferrals to HCEs.  The refund calculation is a two-step process.  First, the total refund amount is determined by calculating the total percentage points that must be refunded to satisfy the ADP test.

The next step calculates the dollars which would be refunded if the excess percentages were refunded first to the HCE with the highest deferral percentage until either the total excess percentages are refunded or until the resulting deferral percentage of that HCE equals that of the HCE with the next-highest deferral percentage.  If the test is still not satisfied, both HCEs are reduced together until the test is satisfied, and so forth.

The final step determines how much each HCE is to be refunded.  This is calculated by first allocating the total refund to the HCE with the highest deferral, in terms of dollars, until the total refund is applied or until the deferral of such HCE is reduced to that of the HCE with the next highest deferral, and so forth.

The amount refunded is considered a taxable distribution from the plan, and is reported as taxable income to the participant in the year it is distributed from the plan.  The corrective distribution is required to be completed by March 15th of the year following the year the excess contribution occurred.  If completed after March 15th of the following plan year, it is still considered to be taxable income in the year paid, however in addition, the Internal Revenue Code imposes a 10% excise tax on the employer.

Correcting ADP Failures:   QNECs

While a refund is the most-popular method of correcting an ADP failure, it is not always the most beneficial.  The primary reason is that the HCEs, often the owners of the company or its most-valuable employees, lose-out on the tax deferral aspects of contributions to a 401(k) plan.  An alternate method of satisfying the test is for the employer to make a Qualified Non-elective Contribution (“QNEC”).  A QNEC is an employer contribution that is fully-vested when made and subject to the same distribution limitations otherwise applicable to section 401(k) contributions.  A QNEC counts as a deferral in the ADP test.  Thus, a QNEC can be used to correct a failed ADP test.  A pro-rata QNEC would be allocated among NHCEs on the basis of compensation.

A QNEC must be provided for in the plan document.  In addition, the allocation formula must be set forth in the document prior to the end of the plan year being tested.  Many plans which contain QNECs will contain the “pro-rata” allocation formula set forth above.    Keep in mind that the existence of QNEC language in a plan does not obligate the employer to make a QNEC in the event the ADP test is not satisfied.  The employer retains the option of distributing amounts to HCEs.

The tax code governing 401(k) plans was written to prevent qualified retirement plans from overly favoring Highly Compensated Employees (HCEs).  A series of non-discrimination tests were devised to measure whether a plan’s design or operation lends to favoring the HCEs over the Non-Highly Compensated Employees (NHCEs).  All year end testing begins with the coverage test in accordance with IRS Code section 410(b).  Once the coverage test is passed or, if not passed, once steps have been taken to pass coverage, then the average deferral percentage (ADP) test must be performed.  The ADP test uses mathematical equations to compare the participation and contribution rates of the HCEs to the NHCEs in order to determine whether the plan is discriminating in favor of the HCEs.

Who is considered a Highly Compensated Employee?

Generally, a highly compensated employee is an employee who is either a more than 5% owner of the business (also known as a 5% owner) in the year of testing or the prior year, or someone who makes more than a specific  dollar threshold determined by the IRS and adjusted annually for cost-of-living increases ( for 2018 testing purposes, someone who earns $120,000 or more in 2017).  It is possible to further restrict the number of HCEs associated with a particular employer by limiting HCE designation based on a compensation threshold  to only  the highest paid 20% of employees.  This election may be particularly effective for small plans maintained by professional groups such as law firms and physicians.  However, this election must be written into the plan document provisions in order to be effective.

The 5% owner rule also requires careful review of the ownership attribution rules for families and trusts.  Family attribution rules dictate that the spouse, parent, legal child and grandchild of a more than 5% owner of the company are also considered 5% owners themselves.  For example, if John Smith owns 100% of a business that also employs his wife Jane; the family attribution rules dictate that, as hiswife, Jane would also be considered to own 100% of the business.  Therefore, both John and Jane would  be considered to be HCEs due to either direct or attributed ownership.

How does the ADP Test work mathematically?

To perform the ADP test, first determine every employee who is eligible to make an elective deferral regardless of whether they actually contribute.  Then you divide this list into groups: HCEs and NHCEs.  Starting with the HCEs, each employee’s Actual Deferral Ratio (ADR) is determined by dividing the employee’s compensation into the amount the employee deferred into the plan.  Once each employee’s ADR is determined, the ADRs are averaged to arrive at the HCEs’ ADP.

Below is an example to illustrate this process:

The same process is followed for the NHCE group.

Once both the HCE and the NHCE and ADP figures have been determined, they are compared against each other.  The HCEs’ ADP may only exceed the NHCEs’ ADP by specific limits.  The limits may be summarized as follows:

Using our example in which the NHCEs’ ADP is 2.53%, the HCEs’ ADP is limited to 2.53% plus 2% for a maximum of 4.53%.  This test passes as the HCE average is 4.22%

Timing of the test

In general, the ADP testing should be completed within 2½ months after the end of the plan year.  The typical correction for a failing test involves the distribution of excess contributions to the HCEs until the point at which the test is satisfied.  In order to avoid an excise tax penalty, the plan sponsor is required to process these refund distributions by no later than 2 ½ months after the plan year end date.  If the plan document allows for it, a failing test may also be remedied by the plan sponsor contributing a Qualified Non-Elective Contribution (QNEC) to the NHCEs to raise their average to a passing result.

As we approach the end of the calendar year, it is important to be reminded about one frequently overlooked retirement plan requirement.  Upon attainment of age 70-1/2, certain participants of a tax-qualified retirement plan may be required by federal tax law to withdraw a minimum amount from such plan each year.  These mandatory distributions are known as “required minimum distributions” (“RMD(s)”).

Depending upon the terms of the specific retirement plan, RMDs must begin to be withdrawn by April 1 of the year following the later of: 1) the year you attain age 70 1/2; or 2) the year you retire, provided you are not a 5% or greater owner of the business.  For years after the initial RMD is made, the requisite RMD amount must be withdrawn by December 31 of each year.  This includes the calendar year after an individual attains age 70 1/2, even if the first RMD is withdrawn during that same year.  If an RMD is not withdrawn by the applicable deadline or is withdrawn in less than the full required amount, the amount not withdrawn is subject to a 50% excise tax.

An RMD amount is calculated by dividing the value of the retirement account of the affected individual as of December 31 of the immediately preceding calendar year by a life expectancy factor  prescribed by certain IRS Tables.  There are three different tables that could be employed.  The Joint and Last Survivor Table is used if the sole beneficiary of the account is a surviving spouse and the spouse is more than 10 years younger than the participant.  The Uniform Lifetime Table is utilized if the surviving  spouse is not the sole beneficiary or is not more than 10 years younger than the participant.  Finally, the Single Life Expectancy Table is used in certain circumstances by a beneficiary if the participant  has died.

Here is an example using the Uniform Lifetime Table:

1. Account balance on December 31of the previous year               $55,000

2. Appropriate value from Uniform Lifetime table (age 79)          19.5

3. Line 1 divided by number entered on line 2 = your RMD for this year    $2,820.51

The following Required Minimum Distribution Decision Tree chart is provided as a courtesy to assist you in determining whether a specific set of circumstances requires the withdrawal of RMDs.

http://www.legacyrsllc.com/wp-content/uploads/2019/10/MRD-Decision-Tree.pdf