new 403(b) regulations

New 403(b) Regulations

Pete Gautreau, CPAPartner

Danielle Witten, CPASenior Manager

Agenda

New 403(b) plan regulations– Why the change?– What’s different?

Common mistakes Steps to take now

New 403(b) Plan Regulations

Written plan document Universal availability Changed transfer rules Timing of contributions Coordinated catch-up rules Plan terminations

Why the Change?

Diminish extent to which the rules are different from other tax-favored employer-based retirement plans such as– 401(k)– 457(b)

Written Plan Document

Key Dates– Original deadline was 1/1/09– IRS Notice 2009-3 extended deadline to 12/31/09

What this means– Written plan document must be adopted and

signed by 12/31/09

Written Plan Document (cont.)

What this means (cont.)– Plan must operate in accordance with a

“reasonable interpretation” of 403(b)– Plan document must intend to satisfy the new

regulations– Employer must make its “best effort” to

retroactively correct operational failures before 12/31/09


Essential Elements– Eligibility requirements– Available investments– Dollar Limitations– Basic plan features

Benefits Time and form of distributions


Optional Elements– Loans– Hardship withdrawals– Elective deferral catch-ups– Transfers– Terminations


Other Recommendations– Plans may incorporate other documents into

written plan by reference Annuity contracts Custodial agreements


Revenue Procedure 2007-71– Issued 11/27/07– Effective 12/17/07– Includes model plan language for public school

use– Plan document will meet requirements if use

model language or language that is “substantially similar”

Loans

Rules– Appropriate dollar limits

Lesser of $50,000 or 50% of vested account balance

– Amortization not to exceed 5 years (unless used to purchase a principal residence)

– Repayments must be made at least quarterly– Fail to meet legal requirements

Deemed distribution Subject to income taxes

Loans (cont.)

Before– Direct relationship between participant and

investment provider– Participant sent loan repayments directly to

investment company

After– Payroll deduction, just like a 401(k)– Plan sponsors will be aware of defaulted loans

Hardship Distributions

Must meet one of the following hardship requirements:– To purchase a principal residence– To prevent eviction from, or foreclosure on, the

principal residence– To pay certain medical expenses– To pay certain education expenses

Participant must also exhaust all other sources of financing first

Hardship Distributions (cont.)

Before– Directly from investment company

After– Through the plan sponsor– Must enforce 6 month rule

No deferrals for 6 months after receiving a hardship distribution

Universal Availability

All employees must be able to participate May only exclude the following:

– Students– Non-resident alien– Employees covered by another similar plan– Employees normally working < 20 hours per week

Universal Availability (cont.)

The following are not excluded:– Collective bargaining employees– Visiting professors– Employees who have taken a vow of poverty– Employees who make a one-time election to

participate in a governmental non-403(b) plan

Universal Availability (cont.)

Effective opportunity required– Notice of opportunity to participate– Notice of election timing– Opportunity to change at least once per year

Universal availability generally applies to– Each common law entity (each 501(c)3

organization)– Each entity not a part of a common payroll (state

entities)

Transfer Rules/Exchanges

Old 90-24 transfers not allowed after September 24, 2007

Tax-free exchanges can be made only to: – Providers you have approved– Plan of another employer

Information Sharing Agreement should be in place

Transfer Rules/Exchanges (cont.)

Information Sharing Agreement (ISA)– An agreement to share information sufficient to

ensure compliance with respect to the following: Loans Hardship distributions Distribution events Recovery of basis in the contract

Timing of Contributions

No absolute deadline from IRS Contributions must be remitted to vendors as

soon as administratively possible What does this mean?

– Payroll is run– Funds can be segregated

Catch-up Rules

Special 15-year catch-up rules– Complex requirements– 15 years of full-time service with same employer

Age 50 contribution 15-year catch-up must be used first

Catch-up Rules (cont.)

Example– 2008 regular deferral limit $15,500– 2008 annual 15-year catch-up (max.) $3,000– 2008 age 50 contribution $5,000

Maximum potential contribution for employee in 2008 is $23,500

Plan Terminations

Employers may terminate both active and frozen 403(b) plans

Employers may want to consider the following:– Consult legal counsel to evaluate required

documentation needs– Establish process for employee distributions and

rollovers– Communicate with employees

Common Mistakes

Failure to: – Follow provisions in plan document– Properly apply universal availability– Limit employee elective deferrals– Timely return excess elective deferrals and

earnings– Identify and report defaulted loans– Satisfy hardship distribution requirements

IRS Focus in 2009

Existence of written plan document Amendment of existing plan to comply with

final regulations Operating in accordance with written plan

document Universal availability

Steps to Take Now

Make sure the plan has a current, written plan document

Identify all plan service providers– Legal counsel– Investment companies– Investment committee– Human resources

Steps to Take Now (cont.)

Establish policies and processes to ensure proper authorization and record keeping of plan transactions:– Investments– Contributions received and related receivables– Benefit payments– Participant data and plan obligations– Administrative expenses

Steps to Take Now (cont.)

Develop a written investment policy that addresses the following:– The types of investments the plan can make– Appropriate authorizations for investment

transactions– How often the investment options should be

reviewed

Questions?

Thank you!

e-mail hotline:

Abbi Palsma

[email protected]

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