401(k) Plan Requirements

There are certain requirements of 401(k) plans that you should be aware of when you consider offering one to your employees. The requirements listed below are the major issues to address with your financial advisor when discussing 401(k) plans:

• There must be a written plan that is communicated to employees.
• The plan must be for the exclusive benefit of employees or their beneficiaries.
• The plan may not discriminate in favor of highly compensated employees. An employee is considered a highly compensated employee for a given year if, at any time in that year or the preceding year, the employee:
  • was a five percent or more owner of the employer, or
  • earned more than $115,000 for the year (the amount may be adjusted annually for inflation) and in the top 20 percent of employees in terms of compensation
• The maximum amount that an employee may voluntarily defer into the plan is $17,500 for 2013 ($17,000 for 2012; this amount may be adjusted for inflation). Those that are age 50 or over can contribute an additional $5,500 for the year (this amount may be adjusted for inflation).
• Minimum vesting rules must be met. When an employee becomes vested in a retirement plan, it means that he or she has participated in a plan long enough or has provided enough years of service to an employer such that the employee becomes entitled not only to the contributions that the employee might have made but also to the contributions made by the employer. Generally speaking, employees must be completely vested after five years of service.
• An employee's entire interest in the plan must be paid out by April 1 of the year after the employee retires or reaches 70 1/2 years of age, whichever is later, or periodic payments must begin no later than April 1 of the year after the employee retires or reaches age 70 1/2 and must generally be paid over the lifetime of the employee.
• The plan must provide for a qualified joint and survivor annuity.
• The plan must contain a spendthrift provision.
• Reports must be filed with the IRS, the Department of Labor, and the Pension Benefit Guaranty Corporation, while other reports must be furnished to plan participants and their beneficiaries, under ERISA, the federal pension law.
• The plan will not qualify as a 401(k) plan if it requires that an employee have more than one year of service with the employer or employers maintaining the plan.
• The plan must provide a separate account for each participant and must separately account for contributions that are subject to the special vesting and distribution rules.
• Income, expenses, gains, losses, and forfeitures from other participants must be properly allocated to each plan participant's account, using a reasonable and consistent method of accounting.

Simple cafeteria plans. The Patient Protection and Affordable Health Care Act provides eligible small employers with the option of providing certain pre-tax benefit plans through a simple cafeteria plan. The main advantage of using a simple cafeteria plan is that the nondiscrimination requirements favoring highly compensated and key employees are removed for qualified benefits.