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IRC §401(h) Plans

“Can you tell me what a 401(h) plan is?”

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 California is representative of a common inquiry related to plan types.

Highlights of Discussion

A “401(h) plan” is a retiree medical benefit account that is set up within a defined benefit pension plan[1] to provide for the payment of benefits for sickness, accident, hospitalization and medical expenses for retired employees, their spouses and dependents if the arrangement meets the requirements of Internal Revenue Code Section (IRC §) 401(h)(1) through (h)(6) (see page 1057 of link). A 401(h) account cannot discriminate in favor of officers, shareholders, supervisory employees, or highly compensated employees with respect to coverage or with respect to contributions and benefits.

401(h) plans are appealing because contributions to fund 401(h) benefits are deductible as contributions to a qualified plan; earnings on the account remain taxed deferred; and distributions are tax-free when used for qualified health care expenses. The amount contributed to the 401(h) account may not exceed the total cost of providing the benefits, and the cost must be spread over the future service.

According to Treasury Regulation § 1.401-14(c), a qualified 401(h) account must provide for the following:

  1. Retiree medical benefits must be “subordinate” to the pension benefits;
  2. Retiree medical benefits under the plan must be maintained in a separate account within the pension trust;
  3. For any key employee, a separate account must also be maintained for the benefits payable to that employee (or spouse or dependents) and, generally, medical benefits payable to that employee (or spouse or dependents) may come only from that separate account;
  4. Employer contributions to the account must be reasonable and ascertainable;
  5. All contributions (within the taxable year or thereafter) to the 401(h) account must be used to pay benefits provided under the medical plan and must not be diverted to any purpose other than the providing of such benefits;
  6. The terms of the plan must provide that, upon the satisfaction of all liabilities under the plan to provide the retiree medical benefits, all amounts remaining in the 401(h) account must be returned to the employer.

The subordinate requirement is not satisfied unless the plan provides that the aggregate contributions for retiree medical benefits, when added to the actual contributions for life insurance under the plan, are limited to 25 percent of the total contributions made to the plan (other than contributions to fund past service credits).

Aside from employer and/or employee contributions to a 401(h) account, plan sponsors may make tax-free “qualified transfers” of excess pension assets within their defined benefit plans to related 401(h) accounts. A plan is deemed to have excess assets for this purpose if assets exceed 125 percent[2] of the plan’s liability (IRC §420).  The requirements of a qualified transfer include the following:

  1. The transferred amount can be used to pay medical benefits for either the year of the transfer or the year of transfer and the future transfer period (i.e., a qualified future transfer);
  2. The transferred amount must approximate the amount of medical expenses anticipated for the year of transfer or the year of transfer and future years during the transfer period;
  3. An employer can make only one such transfer in a year;
  4. All accrued benefits of participants in the defined benefit plan must be fully vested; and
  5. The employer must commit to a minimum cost requirement with respect to the medical benefits.

Conclusion

Pension plan sponsors may find 401(h) accounts appealing as one way to provide for the payment of retiree medical benefits. Depending on the terms of the plan, a 401(h) account can receive employer and/or employee contributions as well as transfers of excess pension benefits, provided certain requirements are met. 401(h) account contributions are tax deductible; earnings are tax-deferred; and distributions can be tax free.

[1] Or money purchase pension plan or annuity plan

[2] For qualified future transfers, substitute 120 percent

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The “High 25” and Benefit Restrictions

The “High 25” and Benefit Restrictions

“My client, a senior partner with an engineering firm, called and was upset because the administrator of his firm’s cash balance plan told him he can’t take a lump distribution, even though the plan document specifically permits lump sums. How can this be? I thought the plan sponsor had to follow the plan document.”

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

  • Unfortunately for your client, in certain circumstances, defined benefit (including cash balance) plans, cannot make lump sum distributions to highly compensated employees (HCEs), despite the option being available under the terms of the plan.  This restriction, sometimes known as the “High 25” or claw back rule, affects the top 25 highest paid HCEs. The rule is intended to ensure large lump sum distributions made to the top HCEs don’t jeopardize the funding status of the plan and its ability to make benefit payments to other participants.
  • Treas. Reg. 1.401(a)(4)-5(b)(3)(ii) states that a plan cannot make certain benefit payments (including a lump sum payment) to an HCE (a restricted employee) who is in the top 25 of employees in terms of compensation unless one of the following is satisfied:

 

  1. After taking into account the payment to the restricted employee of all benefits payable to or on behalf of that restricted employee under the plan, the value of plan assets must equal or exceed 110 percent of the value of current liabilities;
  2. The value of the benefits payable to or on behalf of the restricted employee must be less than one percent of the value of current liabilities before distribution; or
  3. The value of the benefits payable to the restricted employee must not exceed $5,000 [the amount described in section 411(a)(11)(A) of the Internal Revenue Code (IRC) related to restrictions on certain mandatory distributions].

 

  • Revenue Ruling 92-76 prescribes three workarounds, permitting a lump sum if the client does not wish to take an annuity payment.  A  lump sum is permitted if

 

  1. The distribution is placed in an escrow account;
  2. A surety bond is obtained for the distributed amount; or
  3. A letter of credit is secured that allows the plan to recoup all or a portion of the distribution in the event of future funding shortfall.

These rules are complex and expert counsel is necessary to ensure compliance.

Conclusion

When discussing benefit restriction rules for defined benefit plans with your clients, do not forget the well-entrenched benefit restrictions that may apply for the High 25 HCEs in the plan.

 

 

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