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Timing of Plan Contributions


  • Introduction
  • 401(k) Plans
  • Profit Sharing Plans
  • Money Purchase Pension Plans
  • Top Heavy Contributions
  • Defined Benefit Pension Plans
  • Conclusion

  • 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 2004, ABC has filed for an extension (to
    September 15, 2005) to file its federal tax return. The matching
    contribution is made September 4, 2005. Since it was contributed before the
    federal tax return due date (including the extension) it is deductible on
    the 2004 return. (This example assumes that the contributions are within the
    25% 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 2004, the due
    date of XYZ’s federal tax return was extended to September 15, 2005. Any
    employer contributions deposited by that date can be considered deposited on
    December 31, 2004 and allocated under the plan as of that date. They would
    be deductible to the corporation for 2004.

    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.


    This newsletter is intended to provide general information on matters of interest in the area of qualified retirement plans and is distributed with the understanding that the publisher and distributor are not rendering legal, tax or other professional advice. Readers should not act or rely on any information in this newsletter without first seeking the advice of an independent tax advisor such as an attorney or CPA.

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