Test it, Find it, Fix it!

Transcription

1 Test it, Find it, Fix it! 2015 MACPA EMPLOYEE BENEFIT PLAN CONFERENCE Presented by Kathryn Petrillo, Mark Flanagan & Jennifer Downs

2 Introductions Session format Questions 2

3 The Plan Document What We Test. Plans begin with a written document that serves as the foundation for day to day plan operations. What We Test. Plan operations are occurring in accordance with the terms of the plan document. Changes made to the plan document are conveyed to participants and service providers. The slides following describe what auditors find and the corrections necessary when plan operations are not occurring in accordance with the terms of the most recent plan document. 3

4 Corrections. General Correction Principles Basic principle behind any correction Plan must be returned to its position had the error not occurred. Revenue Procedures and with additions are your guides drop/rp pdf 50.pdf Counsel may need to be involved depending on the correction and client Self correction vs. formal correction under EPCRS IRS or VFCP DOL Some corrections are clear cut, but many are not and they require a facts and circumstances evaluation. Different advisors may have differing views on the appropriate correction Errors need to be corrected as far back as employer has records All corrections should include a lost earnings component 4

5 Eligibility What We Test. What are the eligibility requirements and are they being adhered to? Age requirement Cannot be greater than 21 Service requirement Generally cannot require more than 1 year for salary deferral (2 profit sharing) Classes of employees excluded Can exclude union and non resident aliens Universal Availability for 403(b) plans Control group or plan merger issues Notes If age and service requirement eligibility is considered to have been met when the later of the conditions is met. Different eligibility requirements can exist for various contributions. 5

6 Eligibility What We Find. Employees are included in the plan prior to eligibility An excluded class of employees is included in the plan Eligible employees are excluded from the plan 6

7 Corrections. Incorrectly included employees Salary deferrals are distributed to employees (w/o penalty) Employer contributions are transferred to forfeitures Incorrectly excluded employees/class Determine eligibility for new safe harbor correction methods under Rev. Proc Missed deferral opportunity is calculated by applying the ADP percentage of either the NHCEs or HCEs (depending on the missed employee s classification) for the year to the appropriate compensation for the excluded period. In a safe harbor plan, the missed deferral opportunity is equal to the greater of 3% of compensation or the maximum deferral percentage which is matched at least 100% The missed deferral opportunity is then used to calculate the missed matching contribution, if applicable. The corrective contribution is 50% of the missed deferral opportunity plus the missed match Employee contributions are deposited as a QNEC. Matching contributions can be deposited as a Match or QNEC. If a non elective contribution was made for the year of improper exclusion, there are two possible methods of correction. Employer makes an additional contribution to the excluded employee equal to the percentage of compensation allocated to similarly situated employees i.e.. If all employees received 5% of pay, then the missed employee would receive 5% of pay. Employer does not make an additional contribution but adds excluded employee(s) and reallocates contribution. This effectively lowers contribution rate to all previously included employees. All corrections must be adjusted for lost earnings 7

8 Corrections. New safe harbor corrections under Revenue Procedure Rolling Three Month Exception. Elective deferrals commence no later than the first payment of compensation after three months from when the failure first occured, QNEC not required to make up the missed deferrals. (If the affected employee notifies the employer sooner, the deferrals must commence by the last day of the month following the month in which the employer receives this notice.) Permitted if the following occurs: Notice is sent to affected participants within 45 days after the correction. There are special notice requirements detailed in the Rev. Proc. A corrective contribution is made on behalf of the eligible employee to make up for any missed matching contribution, adjusted for earnings, no later than the end of the second plan year following the year in which the failure first occurred. 8

9 Corrections. New safe harbor corrections under Revenue Procedure cont.. Safe harbor correction for failure period greater than the three months Elective deferrals that do not begin within three months of when they should have commenced, QNEC goes from 50% to 25%. (If the affected employee notifies the employer sooner, the deferrals must commence by the last day of the month following the month in which the employer receives this notice or first payment of compensation on or after the second plan year following the year in which the error occurred.) Permitted if the following occurs: Notice is sent to affected participants within 45 days after the correction. There are special notice requirements detailed in the Rev. Proc. A corrective contribution is made on behalf of the eligible employee to make up for any missed matching contribution, adjusted for earnings, is made no later than the end of the second plan year following the year in which the failure first occurred. 9

10 Enrollment What We Find. Auto enrollment Employees not enrolled timely or at all Risk is higher when plan personnel determine Risk still exists when service organizations determine Election forms Electronic enrollment Information sent to employees by service providers is not sent or not sent timely Information sent to employers by service providers is not entered into payroll system timely or at all Paper enrollment forms Missing enrollment forms Outdated enrollment forms Not entered into payroll system timely or at all 10

11 Enrollment What We Test. How are employees enrolled? Auto enrollment Enrollment forms Electronic enrollment Paper enrollment forms Notifications by Service Organizations What is sent to employees and employers? 11

12 Corrections. Auto enrollment correction methods.. Revenue Procedure safe harbor correction for Elective Deferral Failures in Plans with Automatic Contribution Features If a plan administrator fails to implement automatic contributions when there is no election (including automatic escalation of elective deferral contributions), or fails to implement an affirmative election to contribute more than the automatic contribution rate, the standard 50% of missed elective deferrals QNEC is not required if the following conditions are met: Failure is discovered prior to 9 1/2 months after the end of the plan year in which the failure first occurred. Elective deferrals begin no later than the first payroll date following the period described above, or, if earlier, the first payroll date following the end of the month after the plan administrator receives notice of the failure from an affected participant. Notice is sent to affected participants within 45 days after the correction. There are special notice requirements detailed in the Rev. Proc. A QNEC for missed matching contributions, plus earnings, is made no later than the end of the second plan year following the year in which the failure first occurred. 12

13 Corrections. Auto enrollment correction methods cont. If not eligible for the safe harbor correction relief under Rev. Proc then Missed deferral opportunity is calculated by applying the ADP percentage of either the NHCEs or HCEs (depending on the missed employee s classification) for the year to the appropriate compensation for the excluded period. In a safe harbor plan, the missed deferral opportunity is equal to the greater of 3% of compensation or the maximum deferral percentage which is matched at least 100% The missed deferral opportunity is then used to calculate the missed matching contribution, if applicable. The corrective contribution is 50% of the missed deferral opportunity plus the missed match Employee contributions are deposited as a QNEC. Matching contributions can be deposited as a Match or QNEC. Corrective contribution must be made even it the participant subsequently makes a 0% election. All corrections must be adjusted for lost earnings 13

14 Employee Contributions What We Test. Plan Level Do amounts withheld from pay (aggregate) agree to amount received by the custodian? Participant Level Does the amount withheld from pay agree to what was authorized by the participant? Is the amount withheld from pay based on compensation as defined in the plan document? Is the amount withheld from pay within IRS and plan limits? Does the amount withheld from pay agree to the amount in the participant s account per the recordkeeper? 14

15 Plan Level Employee Contributions What We Find. Pay period(s) never remitted Contributions miscoded by custodian 15

16 Employee Contributions What We Find. Participant Level Authorization No forms Outdated forms that do not match withholding Notifications from TPA not retained Notifications not put in place Auto enrollment step ups not taking place 16

17 Corrections. Any missed employee withholding deposits must be contributed with earnings with likely 5330 filing Any contributions deposited into an incorrect fund source must be transferred to the proper source with earnings. In the event of a IRS or DOL audit, election forms will be requested. This includes elections not to contribute. Files should be papered appropriately. Elections that were not implemented, need to be corrected through the missed deferral opportunity calculation of 50% of the missed deferral and 100% of the missed matching contribution or by the safe harbor methods under Rev. Proc Auto enrollment step ups that are not implemented need to be corrected through the missed deferral opportunity calculation of 50% of the missed deferral and 100% of the missed matching contribution or by the safeharbor methods under Rev. Proc

18 Employee Contributions What We Find. Participant Level Definition of compensation Exclusion of certain pay types when document provides for no such exclusion Bonuses (including spot bonuses, Holiday bonuses) Incentive pay Overtime Fringe benefits Tips Commissions Also inclusion of these pay types when definition excludes 18

19 Employee Contributions What We Find. Participant Level Definition of compensation Not taking deductions on certain paychecks in error Manual checks Special off cycle paychecks Last paychecks Taking deductions on severance when should not 19

20 Employee Contributions What We Find. Participant Level Limits Amount withheld from pay exceeds IRS limits ($17,500 for 2014, $5,500 for catch up) Amount withheld from pay exceeds plan limits (i.e. plan limits to between 1% and 50% and participant contributes more than 50%) Be careful with applying limits in off calendar year end plans 20

21 Employee Contributions What We Find. Participant Level Participant Accounts Amounts deposited into wrong accounts Similar last names Upload shifts one line Resubmitting prior pay period as current pay period Amounts never remitted Amounts reported as employer instead of employee source funds 21

22 Corrections. Compensation incorrectly excluded for salary deferral is corrected through the missed deferral opportunity calculation of 50%. Matching contribution deposit may also be required. Compensation incorrectly included for salary deferral results in a distribution to the participant of the ineligible salary deferral. Matching adjustment withdrawal may also be required. Any missed employee withholding deposits must be contributed with earnings with likely 5330 filing Any contributions deposited into an incorrect fund source must be transferred to the proper source with earnings. 22

23 Corrections. Any ineligible employee contribution is distributed to the participant. Any corresponding ineligible employer contribution is transferred to the forfeiture account and used as outlined in the plan document. Document failure Regulatory/testing limit Administrative error 23

24 Timeliness of Deposits What We Test. The RULE Under the regulation, 29 CFR , amounts paid by a plan participant or beneficiary or withheld by an employer from a participant s wages for contribution to a plan are plan assets on the earliest date that they can reasonably be segregated from the employer's general assets, but in no event later than the 15th business day of the month following the month in which the participant contributions are withheld or received by the employer. Was there a failure to remit participant contributions? Was there a failure to remit loan repayments (also deemed participant contributions)? Failure to remit participant contributions would constitute a prohibited transaction under ERISA Section 406, regardless of materiality. 24

25 Timeliness of Deposits What We Find. Untimely deposits of participant contributions 25

26 Timeliness of Deposits What is untimely?. The day after the earliest date that participant contributions can reasonably be segregated from the employer's general assets, but in no event later than the 15th business day of the month following the month in which the participant contributions were withheld or received by the employer. 26

27 Timeliness of Deposits What would be deemed timely?. Earlier than the 15th business day of the following month. Remittances that are made at the same time as payroll taxes. Remittances that are made within a set and recurring time frame by plan/payroll personnel ( the standard ). 27

28 Corrections. Contributions that are deemed to be late are corrected, by making the deposit, depositing lost earnings, and filing the form 5330 Lost earnings can be calculated using the VFCP s lost earnings calculator No formal guidance on de minimis amount for 5330 filing. 28

29 Employer Contributions What We Test. Plan Level Does the amount approved by the Board / approved for remittance agree to the amount received by the custodian? Participant Level Is the amount properly calculated based on plan provisions and applicable participant data? Is the contribution provided to all who are eligible to receive it and only those eligible? Does the amount contributed for the participant agree to the amount in the participant s account per the recordkeeper? Is compensation limited to IRS limits ($260,000 in 2014)? 29

30 Plan Level Employer Contributions What We Find. No official approval for discretionary amounts Improper use of forfeitures to reduce contribution 30

31 Employer Contributions What We Find. Participant Level Matching Amount is calculated on the wrong definition of compensation, which might be different from that used to determine salary deferrals Not applying match to catch up contributions when it should be, and vice versa Not applying on proper period (i.e. plan calls for annual match, but is being paid and calculated based on pay period compensation, resulting in need for year end true up) Not providing to everyone eligible to receive or providing to ineligible employee (careful attention to last day/service rules and waivers of such rules) Cutting off match when deferral limit reached when contribution period is not pay period based Amounts calculated do not agree to amount reflected in participant s account by the recordkeeper Matching on compensation over the IRS limit 31

32 Employer Contributions What We Find. Participant Level Profit Sharing Amount is calculated on the wrong definition of compensation, which might be different from that used to determine salary deferrals and/or match Not providing to everyone eligible to receive or providing to ineligible employee (careful attention to last day/service rules and waivers of such rules) Allocation not being done in accordance with plan formula for allocation Amount allocated does not agree to amount reflected in participant s account by the recordkeeper 32

33 Corrections. Forfeitures that are mistakenly used to reduce administrative expenses result in a contribution from the employer to make the plan whole. Forfeitures that are mistakenly used to reduce employer contributions can result in either a corrected contribution allocation or an additional contribution from the employer. Compensation incorrectly excluded for matching contribution calculations is corrected by recalculating the amount with the correct compensation and an additional contribution from the employer. Compensation incorrectly included for matching contribution calculations is corrected by recalculating the amounts with the correct compensation and transferring the excess to the forfeiture account. Incorrect computation period calculations are corrected by using the correct compensation and deferral period with shortages resulting in an additional contribution and excesses transferred to forfeitures. 33

34 Corrections. Profit sharing/non elective contribution errors Incorrect compensation Wrongly excluding certain employees Incorrect allocation formula Employer makes an additional contribution to all affected participants in an amount required to correct their allocation. Employer does not make an additional contribution but adds excluded employee(s) and or corrects considered compensation for affected participants and reallocates existing contribution. 34

35 Payroll System Cautions Be alert for errors in payroll system set up, even when with reputable provider Cutting off deferrals when compensation limit reached, even though IRS limit is not reached Stopping match calculation when deferrals stop even if supposed to be annual match calculation Other issues with unidentified causes: match calculated incorrectly if over 50 Overmatch on pay date compensation limit reached Overmatch on individuals contributing less than 3% (when match was based on 100% of first 3% and 50% of next 2%) 35

36 Rollovers What We Test. Does the plan document permit rollovers? Is the rollover from a qualified plan as outlined in the plan document for permitted rollovers? Are amounts going to the proper participant account? Are amounts properly recorded by source? Are amounts going to the funds elected by the participant? 36

37 Rollovers What We Find. No one at sponsor taking responsibility Occasionally find a rollover in that should not have come in to the plan typically when more than one plan exists Revenue Ruling

38 Corrections. It is the employer s responsibility to ensure that only qualified funds are rolled into the plan. Reasonable steps should be taken to verify the funds are qualified, RMD s are current and the amount if any, of after tax funds included in the proposed rollover are known. Ideally, employers should not approve incoming rollovers unless they can reasonably establish the above. If employers subsequently determine funds are not qualified, the rollover plus earnings should be distributed to the participant within a reasonable time after the determination is made. 38

39 Distributions What We Test. Is the distribution permitted per the plan document? Is it a proper distributable event? Termination Distribution Rollover Distribution Age 70+ Minimum Required Distribution Hardship Distribution Age 59.5 In service Distribution Was the proper amount distributed? Correct vesting percentage used Obtain current vesting schedule as well as any prior vesting schedules that may still be relevant Merged plan participants could be subject to different vesting %s Vesting for death, disability and retirement Were taxes properly withheld? Was the proper source distributed? 39

40 Distributions What We Find. It is not a proper distributable event Participant not terminated Participant does not meet age requirement for inservice or MRD Hardship rules not followed The proper amount was not distributed Incorrect vesting percentage used Years of service not properly calculated Taxes were not properly withheld The proper source was not distributed 40

41 Corrections. Impermissible distributions, distributions prior to a distributable event, have minimal and sometimes conflicting guidance. Request should be made for participant to return the distribution plus earnings. What if they cannot? Likely Counsel time. Such distribution to a party in interest likely is a prohibited transaction; return of funds and Distributions in excess of a participant s vested interest are not eligible for rollover and should be returned to the plan s forfeiture account. If not by the employee then by the employer; no longer required to go to the employee first. Revenue Procedure Distributions less than a participant s vested interest can be corrected through funds in forfeitures or from employer contributions. Missed MRDs subject to 50% penalty. Withholding tax is the responsibility of the plan administrator and the IRS may penalize the employer if withholdings are not handled properly. 41

42 Hardship Distributions What We Find. Hardship distributions are not permitted by the plan document The request and supporting documentation does not meet the plan provisions and tax requirements for a hardship Watch electronic certifications by participants The participant didn t exhaust all other options before taking a hardship distribution The distribution amount was more than required to meet the need (plus taxes/penalties incurred as a result of taking distribution) The distribution was withdrawn from amounts not allowed by plan provisions (i.e. elective deferrals, other sources specified) Contributions were not suspended for these participants after the hardship 42

43 Corrections. Hardship distributions that are not permitted by the plan document can be corrected by plan amendment as part of a EPCRS filing. Distribution needed to satisfy immediate and heavy financial need Safe harbor reasons for hardship Medical care including spouse and dependents Purchase of primary residence Post secondary education expenses including spouse and dependents Payments to prevent eviction for primary residence Burial expenses for parent, spouse, children and dependents Casualty deduction eligible repairs to principal residence Written representation from employee that need cannot be relieved by other options. More documentation is better than less and online approval is challenging. Is employer s responsibility to approve request not administrator/custodian 43

44 Corrections. Standard of approval must be uniform and consistent. IRS has never really addressed how to correct. What are you supposed to do, ask for the funds to be returned by someone that claimed they needed the money due to a hardship? FAILURE TO SUSPEND No formal guidance but the plan should be put back into the position it was in prior to the error occurring Ineligible deferrals should be returned to employee and any attributable match forfeited Possibly suspend going forward as long as matching contribution levels have not changed 44

45 Notes Receivable from Participants What We Test. Test of new loans When loans are not certified Loan issued in accordance with plan provisions: Limits not exceeded (50%/$50,000) Allowable term not exceeded (5 yr or principal res) Interest reasonable Loan repayments set up and started promptly Number of loans outstanding within plan limits 45

46 Notes Receivable from Participants What We Test. Review for defaulted loans beware of inconsistency in practice among TPAs deemed loan vs. offset loan: Deemed loan participant is still active and could begin to repay continue to carry as a participant loan Offset loan participant has experienced distributable event (retirement, termination, disability, death) even if funds have not been requested loan should be offset and removed from the books 46

47 Notes Receivable from Participants What We Find. When loan program set up by reputable service organization, rarely find issues with amount or term Most common issue is interest rate not being adjusted on periodic basis to reflect market conditions Sometimes find issues where number of loans outstanding exceed that permitted by plan provisions Do find issues where repayments are not started promptly or at all 47

48 Corrections. Plan sponsors should manage the participant loan program in the same manner as a lending institution manages their loans! Loans with unreasonable interest rates should be corrected by reamortizing the loan using a reasonable interest rate. Plan providers rarely do this. Too many loans can usually be rolled into a single loan and avoid violating the terms of the loan policy. Administrative situations can result in loan payments failing to begin in a timely manner. Loan should be re amortized to reflect the period of delay and payments begin as soon as possible. Payments could also be caught up by the participant and continued as scheduled. 48

49 Expenses What We Test... Are expenses paid allowable under the plan? Are expenses charged in accordance with terms of service agreements? If forfeitures are used to pay plan expenses, does the plan provide for this treatment? Are expenses recorded properly in accordance with U.S. GAAP? If more than one plan is maintained, is expense a proper allocation to the plan? 49

50 Expenses What We Find Expenses paid that should have been paid by sponsor or by a different plan ERISA budget accounts off the books Use of forfeitures in the current year to pay expenses from a prior year 50

51 Corrections. Expenses must be reasonable and allowed to be paid from plan assets. Fiduciary expenses expenses required to maintain the plan; not settlor expenses. Inappropriate payment of expenses can give rise to a prohibited transaction. Employer reimbursements Incorrect payments between plans can be fixed by transfers between plans. Usage of forfeitures released in a different year than expenses incurred may give rise to a corrective contribution from the employer. 51

52 The Plan Document Not in Compliance. A basic legal requirement of all 401(k) plans is that they must be established and supported by a formal written plan document that complies with the Internal Revenue Code. When the tax laws affecting 401(k) plans change, the written plan must be updated. The Department of the Treasury/Internal Revenue Service issued final regulations at 26 C.F.R (b) 0 et seq. (July 2007) reflecting legislative changes made to 403(b). An important requirement in the Treasury regulations is that a [403(b) plan] must be maintained pursuant to a written defined contribution plan that satisfies the Code s regulatory requirements and contains all the material terms and conditions for benefits under the plan. The most current Cumulative List, in Notice , is for plan sponsors to use submitting determination letter applications for plans during the period beginning February 1, 2015 and ending January 31, See 52_IRB/ar08.html for list of changes in plan qualification requirements. Most recent tax law(s) affecting plans Highway and Transportation Act (HATFA) signed into law August 8, 2014 includes funding relief for pensions. H.R.4275 Cooperative and Small Employer Charity Pension Flexibility Act signed into law April 7, 2014 establishes CSEC pension plans Per and 52

53 Corrections. Plan document failures must be corrected using the EPCRS program via a formal submission. 53

54 Non-discrimination Tests 401(k) Plans A Guide to Common Qualified Plan Requirements ( Plans/A Guide to Common Qualified Plan Requirements ) Plans must comply with certain IRS requirements in order to maintain their tax exempt status. These requirements are as follows: Minimum Coverage Test (Ratio Percentage or Average Benefits Tests) Minimum Participation Tests Nondiscrimination Test Top Heavy Test ADP Test (Actual Deferral Percentage) ACP Test (Actual Contribution Percentage) Exclusive Benefit Rule Sec 415(c) Annual Additions Diversification of Certain Employer Security Holdings Sec 402(g) Elective Deferral Limits ADP and ACP Safe harbor ADP and ACP testing failures can be corrected after the plan year end by a timely distribution of excess contributions to the appropriate highly compensated participants and by forfeiture of excess unvested matching contributions. 54

55 Non-discrimination Tests 403(b) Plans Plans must comply with certain IRS requirements in order to maintain their tax exempt status. These requirements are as follows: Minimum Coverage Test (Ratio Percentage or Average Benefits Tests) Minimum Participation Tests Nondiscrimination Test Universal Availability Rules ACP Test (Actual Contribution Percentage) Exclusive Benefit Rule Sec 415(c) Annual Additions Sec 402(g) Elective Deferral Limits The "universal availability rule" means that if an employer permits one employee to defer salary into a 403(b) plan, the employer must extend this offer to all employees of the organization. However, certain employees may be excluded from the plan: Employees who will contribute $200 annually or less. Those employees who participate in a 401(k) or 457 plan, or in another 403(b) plan. Non resident aliens. Employees who normally work less than 20 hours per week. Students performing services described in Code section 3121(b)(10). 55

56 Nondiscrimination Testing What We Find. The tests are not performed. The tests are not performed timely. The tests fail. The tests do not take into account control groups. Corrections not made timely. 56

57 Corrections. Must have a clear understanding of which tests are applicable. Some tests may not be required depending on plan type Some tests may be deemed to pass due to a design based safe harbor Some plan sponsors may not want to pay for certain tests because they know they will pass them given the demographics of the participant group Virtually all plans are subject to some form of limits, discrimination and coverage testing. Testing failures are typically corrected by additional contributions from the employer or distributions/transfers from participant accounts Entire employer must be considered including controlled group entities Late or never performed ADP test is the most common uncorrected compliance test we find ADP test failure must be corrected within 12 months of the plan year end. If not, the one to one method must be used to correct. 57

58 Corrections. Missed employee deferrals Corrected with employer contribution equal to 50% of the missed deferral deposited as a QNEC Contribution of 100% of resulting additional match if applicable Excess employee deferrals Corrected by distributing the excess to the participant Funds deposited into incorrect employee account or fund source Incorrect deposit transferred to correct participant s account or fund source Incorrect matching contribution computation period, formula or definition of compensation Shortages are corrected by additional employer contributions Excess contributions are corrected by transfers from participant s accounts into forfeiture/suspense account Corrective contributions can be funded with forfeitures 58

59 Specific ESOP Issues What We Test Allocations to participant accounts are done in accordance with the plan document, including release of shares under leveraged ESOPs Distributions, including diversification payments, are calculated in accordance with plan provisions and any other distribution policies 59

60 Specific ESOP Issues What We Find Allocations to participant accounts are NOT done in accordance with the plan document: Compensation used as the basis for the allocation of contributions and forfeitures is not the same as specified in the plan document Other formula used as the basis for repurchase of shares or other activity is not consistent with plan document or is done inconsistently from year to year 60

61 Specific ESOP Issues What We Find Distributions, including diversification payments, are NOT calculated in accordance with plan provisions and any other distribution policies: Errors in calculation of installment payments Often easier to get calculation from third party provider who determined the amount and review for compliance 61

62 Corrections. Incorrect allocations must be re run using the correct participants, compensation and allocation method. Incorrect diversification distributions must be analyzed and corrected on a case by case basis. 62

63 Corrections. Resources Revenue Procedure drop/rp pdf Revenue Procedure pdf IRS 401(k) Plan Fix It Guide Plans/401(k) Plan Fix It Guide VCP Lost Earnings Calculator 63

64 Q&A 64