ERISA consultants at the Retirement Learning Center (RLC) 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 and income plans, including nonqualified plans, stock options, and Social Security and Medicare. 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 New York is representative of a common inquiry related to a type of retirement plan.
Highlights of the Discussion
An IRC Sec. 412(e)(3)  plan is a unique type of defined benefit plan that is funded exclusively by the purchase of life insurance contracts, fixed annuity contracts or a combination of the two. Because of this design, 412(e) plans do not require the services of an enrolled actuary to calculate the annual contributions. A fully insured 412(e)(3) defined benefit plan may be a plan solution for the owner of a small business or professional enterprise who desires a large current tax deduction for contributions and secure guaranteed retirement income. The most likely candidates for a 412(e) plan are small, professional businesses that want to maximize contributions for their owners. They work best for business that are small (five or fewer employees), well established, highly-profitable and have an older owner and younger employees.
IRC Sec. 412(e) plans are subject to the same qualification requirements that apply to traditional defined benefit plans, with two exceptions. First, if the insurance contracts meet the requirements of IRC Sec. 412(e)(3)  and Treasury Regulation 1.412(i)-1(b)(2)  as outlined below, the plan is exempt from the normal minimum funding requirements of IRC §412.
- The plan must be funded exclusively by the purchase of individual annuity or individual insurance contracts, or a combination thereof from a U.S. insurance company or companies. The purchase may be made either directly by the employer or through the use of a custodial account or trust.
- The individual annuity or individual insurance contracts issued under the plan must provide for level annual, or more frequent, premium payments to be paid under the plan for the period commencing with the date each individual participating in the plan became a participant, and ending not later than the normal retirement age for that individual or, if earlier, the date the individual ceases participation in the plan.
- The benefits provided by the plan for each individual participant must be equal to the benefits provided under his or her individual contracts at normal retirement age under the plan provisions.
- The benefits provided by the plan for each individual participant must be guaranteed by the life insurance company.
- All premiums payable for the plan year, and for all prior plan years, under the insurance or annuity contracts must have been paid before lapse.
- No rights under the individual contracts may have been subject to a security interest at any time during the plan year. This subdivision shall not apply to contracts which have been distributed to participants if the security interest is created after the date of distribution.
- No policy loans, including loans to individual participants, on any of the individual contracts may be outstanding at any time during the plan year. This subdivision shall not apply to contracts which have been distributed to participants if the loan is made after the date of distribution.
Second, a 412(e) plan will automatically satisfy the accrued benefit test if the plan satisfies items 1 through 4 above, plus provides that an employee’s accrued benefit at any time is not less than what the cash surrender value of his/her insurance contracts would be if all premiums due are paid, no rights under the contracts have been subject to a security interest at any time, and no policy loans are outstanding at any time during the year.
Note that the IRS has identified certain abusive sales practices involving 412(e)(3) plans funded only with life insurance rather than a combination of life insurance and annuities. Therefore, such plans will invite greater scrutiny by the IRS. (See EP Abusive Tax Transactions – Deductions for Excess Life Insurance in a Section 412(i) or Other Defined Benefit Plan  for specific guidance.)
A 412(e)(3) plan is a niche defined benefit retirement plan that allows for higher than usual tax deductible contributions. It is most suitable for businesses that are owner-only, or have fewer than five employees where the owner is materially older than the employees. Business owners should consult with a tax professional or attorney to determine whether a 412(e)(3) plan is the right choice for their firms.
  412(e) plans were formerly know as 412(i) plans. The Pension Protection Act of 2006 renumbered the code section.