Brach Eichler Benefits ReviewJanuary 26, 2017


Qualified retirement plans, such as Internal Revenue Code sections 401(k) and 403(b) plans, pension and profit sharing plans, individual retirement accounts (IRAs), and health flexible spending accounts (Health FSAs) are subject to various dollar limits on the amount of contributions that can be made or benefits that may accrue under such arrangements. Most of these dollar limits are adjusted annually by the IRS for changes in the “cost of living.”

For 2017, some of the key dollar limits affecting the above plans, IRAs and Health FSAs are as follows:

While the above benefit and contribution limits should be, as applicable, reflected in the plan documents for such plans and accounts, and in the operation of such arrangements, it is important to remember that the elective deferral and, as applicable, related catch-up contribution limits apply on an individual basis. Thus, if you change jobs during calendar year 2017 and participate in two or more employer-provided 401(k) and/or 403(b) plans, you are entitled to a maximum aggregate elective deferral and catch-up contribution limit under all such plans for 2017 of $18,000 in elective deferrals and $6,000 in catch-up contributions (i.e., one set of elective deferral and catch-up contribution limits apply per individual per calendar year).

Related Practice: Employment Services

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New Fiduciary Investment Advice RuleMay 17, 2016

On April 6, 2016, the U.S. Department of Labor (“DOL”) issued a final regulation (the “New Fiduciary Rule”) that redefines and significantly broadens the scope for determining who is treated as a fiduciary as a result of the provision of “investment advice” to plans covered by the Employee Retirement Income Security Act (“ERISA”), and their plan fiduciaries, participants and beneficiaries, and individual retirement accounts (“IRAs”), and IRA owners. The New Fiduciary Rule also includes two new prohibited transaction class exemptions and modifications to other current prohibited transaction class exemptions to reflect this new expanded definition of fiduciary investment advice. This article will focus on the new fiduciary investment advice regulatory rule. A future article will address the new and revised prohibited transaction class exemptions.

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Related Practice: Employment Services

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Employee Benefits - Topics of InterestJanuary 4, 2016

Nonqualified Deferred Compensation Arrangements

While many may know about qualified retirement plans, such as a 401(k) plan, and the rules governing such plans, it is likely that most people are not aware of the important tax rules that govern “nonqualified deferred compensation” (“NQDC”).

Broad Scope of NQDC

The first, and perhaps most important, thing to note about NQDC is its broad scope. NQDC covers generally any promise of compensation made in one taxable year for a payment of such compensation in a later taxable year. Thus, NQDC could include compensation in the form of bonuses, elective salary deferral (outside the context of a 401(k) plan), separation or severance pay, nonelective supplemental deferred compensation, stock rights (e.g., stock options; stock appreciation rights), taxable expense reimbursements, equity-based deferred compensation (e.g., restricted stock units), and many other forms of deferred compensation that may not be labeled as “deferred compensation.”

Code Section 409A

Under Section 409A of the Internal Revenue Code, and the IRS tax regulations and other guidance issued thereunder (“Section 409A” or “409A”), rules are prescribed that must be met to avoid violations that can result in the imposition of significant federal tax penalties. The essence of Section 409A is a roadmap of rules that are designed to limit the discretion of employers and employees to change the timing and form of payment of NQDC once the legally binding promise to pay such compensation is made. It is important to note that Section 409A also covers NQDC arrangements between independent contractors (e.g., consultants) and their “service recipients.”

Compliance With 409A

In practice, Section 409A requires that NQDC either (A) satisfy an exception from 409A (e.g., special exceptions from 409A apply to (i) compensation paid within a short period after the employee (or independent contractor) “vests” in the compensation, and (ii) separation pay that is payable only upon an involuntary separation from service, is limited in amount, and is paid within a prescribed time period, or (B) complies with the substantive rules of 409A (which rules require that the compensation be paid only upon certain permitted payment trigger events and that the time and form of payment of such compensation be set forth when the deferred compensation promise is made, subject to limited opportunities thereafter to change the time or form of payment).

409A Noncompliance Penalties

A failure to comply with Section 409A will often result in income inclusion for the employee (or independent contractor) in a taxable year prior to the year the amount is otherwise scheduled to be paid, and the imposition on the employee (or independent contractor) of an additional income tax penalty equal to 20% of the amount included in income, as well as, in some cases, an interest tax penalty equal to the product of the applicable interest rate on underpayments of federal income tax plus one percentage point and the additional income tax that would have been due had the deferred compensation been included in income, as applicable, in an earlier tax year when first vested. Employers (or “service recipients” with respect to independent contractors) may be subject to tax penalties for violations of 409A due to the failure to timely report and, as applicable, withhold and remit taxes with respect to amounts included in income.

Thus, the tax stakes are high for employees (and independent contractors) who are covered by NQDC plans or arrangements that fail to comply with Section 409A. Moreover, given the broad scope of what constitutes NQDC and the need to comply with Section 409A in both form of documentation and in operation, it is strongly recommended that employees (and independent contractors), and employers (and service recipients), take all steps necessary to ensure that their NQDC plans and arrangements comply with, or are otherwise exempt from, the requirements of Section 409A.

Related Practice: Employment Services

Attorney: Bruce Wolff

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