Almost every employer-sponsored retirement plan (whether it’s a pension plan or a 401(k) plan) must satisfy certain nondiscrimination tests set forth in the internal revenue code. The IRS mandates these tests to ensure that if an employer is getting retirement plan tax deductions, then the plan should be designed so that benefits are not skewed towards Highly Compensated Employees (HCEs). This post deals with a particular test required under section 401(a)(26) of the internal revenue code that may be particularly difficult for cash balance plans to pass in 2009 and 2010.
The 401(a)(26) test is a two pronged test. It mandates that:
- A minimum number of employees (the smaller of 50 people or 40% of the group) receive benefit accruals in the plan; and
- These accruals must be “meaningful”.
According to the IRS, “meaningful” means a benefit accrual of at least ½ % of pay per year, payable at normal retirement age.
Most employers can easily satisfy the first prong of the test by ensuring that a minimum number of employees are covered under the plan. It’s the second prong of the test that is often overlooked.
For cash balance plans, the “meaningful” measurement requires a benefit projection using the plan’s interest crediting rate. The IRS guidance doesn’t refer to a ½% cash balance credit; it’s a credit big enough to generate a ½% retirement benefit.
Since many cash balance plans’ interest crediting rates are tied to the 10-year or 30-year Treasury rates (which are at near-historic lows), the projection of accruals to normal retirement age is lower than it may have been in prior years. This is especially true for young participants in professional service cash balance plans who are already receiving a lower benefit accrual rate than the (usually older) owners. The end result is that the plan may fail the 401(a)(26) test because not enough young (non-owner) employees are earning “meaningful” benefits.
The simplest way to fix this testing failure is to increase the annual pay credit rate for the non-owner employees. Usually this is a relatively inexpensive plan amendment, but care must be taken to make sure that your actuary is monitoring the situation each year. This also highlights the importance of thoughtful cash balance plan design and not setting up a plan that only provides minimal benefits to non-owners, in case there are unintended consequences down the road.
Good point. There are times when you’d appear to fail the ½% test – but on further review it’s OK.
The IRS guidance is aimed at some genuinely abusive plan designs. We’re still seeing them by some that claim to be cash balance leaders, even though the memo came out in 2002.
As recently as 2009, we saw a proposal that failed both the ½% test and the IRS’s 2004 followup at http://www.irs.gov/pub/irs-tege/directive.pdf. In the followup, the IRS said “Adverse determination letters should be issued with respect to plan designs similar to
those identified in this memorandum”. I don’t know if that was mentioned in the sales process.
If the participants are shareholders/partners, then the 1/2% standard doesn’t apply. What is “meaningful” seems to be a facts and circumstances determination, relative to the size of accruals for other participants.
Under IRS #401 (A) (26) if an employers plan should fall below 50 or not meet the requirments of the means test, What are the reprocutions? Also, what section can you find this information on the IRS website?
Worst case is disqualification of the plan. But there’s probably some wiggle room because the IRS letter at http://www.irs.gov/pub/irs-tege/directive.pdf isn’t the law, it’s just the IRS interpretation of the law. The plan is more at risk if it’s on the wrong side of that.