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Maximum contributions to 403(b), 401(k) and 457(b) plans

“One of my clients participates in a 401(k) plan [her own “solo (k)”], plus a 403(b) plan and a 457(b) plan (through the public school system). Her accountant is telling her that she, potentially, could contribute twice the $18,500 deferral limit for 2018. How can that be so?”

ERISA consultants at the Retirement Learning Center Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings plans, including nonqualified plans. We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from Massachusetts is representative of a common inquiry related to the maximum annual limit on employee salary deferrals.

Highlights of Discussion

First off, kudos to your client for working with you and a tax advisor in order to determine what amounts she can contribute to her employer-sponsored retirement plans as this is an important tax question based on her personal situation that is best answered with the help of professionals. Generally speaking, it may be possible for her to contribute more than one would expect given the plan types she has and based on existing plan contribution rules, which are covered in the following paragraphs.

For 2018, 457(b) contributions (consisting of employee salary deferrals and/or employer contributions combined) cannot exceed $18,500, plus catch-up contribution amounts if eligible [Treasury Regulation Section (Treas. Reg. §1.457-5)]. Since 2002, contributions to 457(b) plans no longer reduce the amount of deferrals to other salary deferral plans, such as 401(k) plans. A participant’s 457(b) contributions need only be combined with contributions to other 457(b) plans when applying the annual contribution limit. Therefore, contributions to a 457(b) plan are not aggregated with deferrals an individual makes to other types of plans.

In contrast, the application of the maximum annual deferral limit under Internal Revenue Code Section (IRC §) 402(g) (the “402(g) limit”) for an individual who participates in both a 401(k) and a 403(b) plan requires the individual to aggregate deferrals between the two plans [Treas. Reg. §1.402(g)-1(b)]. Consequently, an individual who participates in both a 457(b) plan and one or more other deferral-type plans, such as a 403(b), 401(k), salary reduction simplified employee pension plan, or savings incentive match plan for employees has two separate annual deferral limits. Let’s look at an example.

Example #1:

For 2018, 32-year-old Erika has an individual 401(k) plan for her business as a self-employed tutor. She is also on the faculty at the local state university, and participates in its 457(b) and 403(b) plans. Assuming adequate levels of compensation, Erika can defer up to $18,500 between her 401(k) plan and her 403(b) plan, plus another $18,500 to her 457(b) plan.

Also, keep in mind the various special catch-up contribution options depending on the type of plan outlined next.

Catch-Up Contribution Options by Plan Type

401(k) 403(b) 457(b)
Age 50 or Over Option

 

Employees age 50 or over can make catch-up contributions of $6,000 beyond the basic 402(g) limit of $18,500.

 

15-Years of Service with Qualifying Entity Option:[1]

402(g) limit, plus the lesser of

1) $3,000 or

2) $15,000, reduced by the amount of additional elective deferrals made in prior years because of this rule, or

3) $5,000 times the number of the employee’s years of service for the organization, minus the total elective deferrals made for earlier years.

 

Age 50 or Over Option

 

Employees age 50 or over can make catch-up contributions of $6,000 beyond the basic 402(g) limit.

 

Note: Must apply the 15-year option first

Age 50 or Over Option

Employees age 50 or over can make catch-up contributions of $6,000 beyond the basic 457 deferral limit of $18,500.

Special “Last 3-Year” Option

 

In the three years before reaching the plan’s normal retirement age employees can contribute either:

•Twice the annual 457(b) limit (in 2018, $18,500 x 2 = $37,000),

 

Or

 

•The annual 457(b) limit, plus amounts allowed in prior years not contributed.

 

Note: If a governmental 457(b) allows both the age-50 catch-up and the 3-year catch-up, one or the other—but not both—can be used.

 

415 Annual Additions Limit

Another consideration when an individual participates in more than one plan is the annual additions limit under IRC Sec. 415(c),[2] which typically limits plan contributions (employer plus employee contributions for the person) for a limitation year [3] made on behalf of an individual to all plans maintained by the same employer. However, contributions to 457(b) plans are not included in a person’s annual additions (see 1.415(c)-1(a)(2). With respect to 403(b) plans and the 415 annual additions limit, there are special plan aggregation rules that apply.

Generally, the IRS considers 403(b) participants to have exclusive control over their own 403(b) plans [Treas. Reg. Section 1.415(f)-1(f)(1)]. Therefore, in many cases, contributions to a 403(b) plan are not aggregated with contributions to any other defined contribution plan of the individual (meaning two 415 annual additions limits in some cases). An exception to this rule, however, occurs when the participant is deemed to control the employer sponsoring the defined contribution plan in which he or she participates. In such case, a participant must aggregate his or her 403(b) contributions with contributions to any other defined contribution plans that he or she may control [see  IRC § 415(k)(4)].Regarding the treatment of catch-up contributions, the “Age 50 or Over” catch-up contributions [see 1.415(c)-1(b)(2)(ii)(B)] are not included as annual additions, regardless of plan type, whereas the 403(b) “15-Years of Service” catch-up contributions are included as annual additions (IRS 403(b) Fix-It Guide.)

Example #2

Adam is a non-owner, employee of an IRC 501(c)(3) organization that contributes to a 403(b) plan on his behalf. Adam is also a participant in the organization’s defined contribution plan. Because Adam is deemed to control his own 403(b) plan, he is not required to aggregate contributions under the qualified defined contribution plan with those made under the 403(b) plan for purposes of the 415 annual additions test.

 

Example #3

The facts are the same as in Example #2, except that Adam is also a participant in a defined contribution plan of a corporation in which he is more than a 50 percent owner. The defined contribution plan of Adam’s corporation must be combined with his 403(b) plan for purposes of applying the limit under IRC 415(c) because Adam controls his corporation and is deemed to control his 403(b) plan.

Example #4

Dr. U.R. Well is employed by a nonprofit hospital that provides him with a 403(b) annuity contract. Doctor Well also maintains a private practice as a shareholder owning more than 50% of a professional corporation. Any qualified defined contribution plan of the professional corporation must be aggregated with the IRC 403(b) annuity contract for purposes of applying the 415 annual additions limit.

For more examples, please see the IRS’ Issue Snapshot – 403(b) Plan – Plan Aggregation.

Conclusion

Sometimes individuals who are lucky enough to participate in multiple employer-sponsored retirement plan types are puzzled by what their maximum contribution limits are. This is especially true when a person participates in a 401(k), 403(b) and 457(b) plan. That is why it is important to work with a financial and/or tax professional to help determine the optimal amount based on the participant’s unique situation.

[1] A public school system, hospital, home health service agency, health and welfare service agency, church, or convention or association of churches (or associated organization)

[2] For 2018, the limit is 100% of compensation up to $55,000 (or $61,000 for those > age 50).

[3] Generally, the calendar year, unless the plan specifies otherwise

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Using unused PTO as 401(k) plan contributions

“My client has unused PTO with his employer and participates in the company’s 401(k) plan. Is there any way he can use the equivalent dollar amount of unused PTO to increase his 401(k) contributions?”

ERISA consultants at the Retirement Learning Center Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings plans, including nonqualified plans. We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from Pennsylvania is representative of a common inquiry related to paid time off (PTO)[1] and 401(k) plans.

[1] Generally refers to a sick and vacation arrangement that provides for paid leave whether the leave is due to illness or incapacity.

Highlights of Discussion

Yes, it is possible that the equivalent dollar amount of unused PTO can be contributed to the 401(k) plan, provided 1) the 401(k) and PTO governing plan documents contain provisions to accommodate such conversions and contributions; 2) the contributions do not unduly discriminate in favor of highly compensated employees; and 3) the contributions do not exceed mandatory contribution limits (see Revenue Rulings 2009-31 regarding the conversion of annual unused PTO and 2009-32 for the conversion of unused PTO upon termination of employment).

Revenue Ruling 2009-31 outlines two possible PTO conversion-to-contribution scenarios that could be applied on an annual basis: 1) where the value of any unused PTO that would otherwise be forfeited is instead converted and contributed to a 401(k)/profit sharing plan as an employer nonelective contribution; and 2) where the value of any unused PTO that would otherwise be paid out in cash to the employee is instead converted to a salary deferral to the 401(k) plan at the employee’s election.

Scenario 1

Company Z maintains a PTO plan and a 401(k) plan. Under Company Z’s PTO plan, no unused PTO as of 12/31 may be carried over to the following year. Company Z amends its 401(k) plan and PTO plan to provide that the dollar equivalent of

1) Any unused PTO of an employee as of the close of business on 12/31 is forfeited under Company Z’s PTO plan and the dollar equivalent of the amount forfeited is allocated to the participant’s account under Company Z’s 401(k) plan as of 12/31 as a nonelective contribution up to the applicable annual additions limitation under IRC § 415(c) (the “415 limit”), and

2) Any remaining unused PTO is paid to the employee by 02/28 of the following year.

Nondiscrimination testing under IRC §401(a)(4) based on the contributions made for individual participants, generally, will be required, because the amount contributed and allocated for each participant will vary based on the amount of each participant’s unused PTO.

Example:

Sam works for Company Z and earns $25 per hour. He also participates in Company Z’s 401(k) and PTO plans with provisions as described in Scenario 1. As of 12/31/17, Sam had 20 hours of unused PTO. Therefore, the dollar equivalent of Sam’s unused PTO is $500. Because of the 415 limit, Company Z may contribute only $400 of unused PTO to Sam’s account under the 401(k) plan as an employer nonelective contribution.

Consequently, Company Z contributes $400 to its 401(k) plan on behalf of Sam as a nonelective contribution on 02/28/18, and allocates this amount to Sam’s account under Company Z’s 401(k) plan as of 12/31/2017. Company Z pays Sam the remaining $100 in cash on 02/28/2018.

Scenario 2

Company A maintains a PTO plan and a 401(k) plan. Under A’s PTO plan, at the end of the year employees may carry over to the following year an amount of unused PTO that does not exceed a specified number of hours (the carryover limit). The dollar equivalent of any unused PTO for a year in excess of the carryover limit is paid to the participant by 02/28 of the following year. Company A amends its 401(k) and PTO plans to provide that a participant may, prior to receipt, elect to treat all or part of the dollar equivalent of any unused PTO as an employee salary deferral to the 401(k) plan and have it allocated to the participant’s account as of the beginning of the third pay period of the following year as long as the amount does not exceed the 415 limit nor IRC §402(g) limit [the “402(g) limit”]. The dollar equivalent of any unused PTO that is not deferred to Company A’s 401(k) plan is paid to the participant by 02/28 of the following year.

Scenario 2

Company A maintains a PTO plan and a 401(k) plan. Under A’s PTO plan, at the end of the year employees may carry over to the following year an amount of unused PTO that does not exceed a specified number of hours (the carryover limit). The dollar equivalent of any unused PTO for a year in excess of the carryover limit is paid to the participant by 02/28 of the following year. Company A amends its 401(k) and PTO plans to provide that a participant may, prior to receipt, elect to treat all or part of the dollar equivalent of any unused PTO as an employee salary deferral to the 401(k) plan and have it allocated to the participant’s account as of the beginning of the third pay period of the following year as long as the amount does not exceed the 415 limit nor IRC §402(g) limit [the “402(g) limit”]. The dollar equivalent of any unused PTO that is not deferred to Company A’s 401(k) plan is paid to the participant by 02/28 of the following year.

Example:

Barb works for Company A and participates in its PTO and 401(k) plans under the terms described in Scenario 2. As of the close of business on 12/31/17, Barb had 15 hours of unused PTO in excess of the carryover limit and earns $30 per hour, so the dollar equivalent of Barb’s unused PTO in excess of the carryover limit is $450. Before receipt of the amount, Barb elects to have 60% of the dollar equivalent of the unused PTO, or $270, contributed to Company A’s 401(k) plan as an employee salary deferral. The contribution does not cause Barb’s deferrals to exceed the 402(g) limit nor the 415 limit. Company A allocates $270 to Barb’s account under the 401(k) plan as of 02/01/18. Under the terms of Company A’s 401(k) plan, this amount is treated as a contribution for the 2018 plan year. Company A pays Barb the remaining $180 on 02/01/18.

Conclusion

As a way for companies to increase their employees’ ability to save for retirement, a number of plan sponsors have amended or are considering amending their 401(k) and PTO plans to allow the equivalent dollar amount of unused PTO time to be converted to 401(k) plan contributions. The terms of the plan documents will dictate the process and treatment of the contributed amounts. Plan sponsors can refer to Rev. Ruls. 2009-31 and 2009-32 for specific guidance.

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Participant in SIMPLE IRA and 401(k) with Separate Employers

Deferral limit involving SIMPLE IRA and 401(k) plans

“I have a client—over age 50—who participates in a savings incentive match plan for employees (SIMPLE) IRA plan with one of his employers and a 401(k) plan with a separate employer. How much can my client defer into the SIMPLE IRA plan and 401(k) plan?”

ERISA consultants at the Retirement Learning Center Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs and qualified retirement plans. We bring Case of the Week to you to highlight the most relevant topics affecting your business.

Highlights of Discussion

  • To determine the answer to your question your client must look at his overall Internal Revenue Code Section (IRC §) 402(g) employee salary deferral limit and the rule that limits employee salary deferrals to the SIMPLE IRA plan under IRC § 408(p)(2)(A)(ii).
  • For each tax year IRC §402(g) limits an individual’s overall employee salary deferrals combined across all eligible plans (e.g., deferrals made to a SIMPLE IRA plan and 401(k) plan) to a set amount. For 2016 and 2017, a person’s 402(g) limit is 100 percent of compensation up to a maximum of $18,000 if he or she is under age 50, and is $24,000 if he or she is age 50 or greater and making catch-up contributions.
  • The maximum amount that a SIMPLE IRA plan participant may defer into the SIMPLE IRA plan is limited to 100 percent of compensation up to a maximum of $12,500 for 2016 and 2017 or, if he or she is age 50 and over, to $15,500 (which includes catch-up contributions of $3,000).
  • Therefore, your client, being over age 50, could choose to make employee salary deferral contributions to the SIMPLE IRA plan in any amount as long as he does not exceed 100 percent of compensation up to $15,500. He could defer the balance of his 402(g) limit up to 100 percent of compensation up to $24,000 to the 401(k) plan IRS Publication 560 and IRS Notice 98-4, Q&A C-3.

 

EXAMPLE

Seth, age 53, participates in a SIMPLE IRA plan with Employer A and a 401(k) plan with Employer B.  Based on his compensation he decides to defer $15,500 to his SIMPLE IRA plan ($3,000 of which is considered a catch-up contribution).  In order to stay within his 402(g) annual limit across all eligible plans in which he participates, Seth may only defer up to $8,500 to his 401(k) plan.  Note that Seth’s overall 402(g) limit of $24,000 could be allocated as he wishes between the two plans, as long as his deferrals do not exceed $15,500 to the SIMPLE IRA plan.

 

Conclusion

An individual who participates in a SIMPLE IRA plan and a 401(k) plan of a different employer must look at his or her overall 402(g) employee salary deferral limit and the rule that limits employee salary deferrals to the SIMPLE IRA plan in order to determine the amount that can be deferred into each plan.

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