Typically, a plan includes a mix of rank-and-file employees and owner/managers. However, some employees may be excluded from a 401(k) plan if they:
Have not attained age 21;
Have not completed a year of service; or
Are covered by a collective bargaining agreement that does not provide for participation in the plan, if retirement benefits were the subject of good faith bargaining.
Employees cannot be excluded from a plan merely because they are older workers.
Another design option you will have in establishing and operating a 401(k) plan is deciding on your business’s contribution (if any) to participants’ accounts in the plan.
Traditional 401(k) Plan
If you decide to contribute to your 401(k) plan, you have further options. You can contribute a percentage of each employee’s compensation for allocation to the employee’s account (called a nonelective contribution), or you can match the amount your employees decide to contribute (within the limits of current law) or you can do both.
For example, you may decide to add a percentage – say 50 percent – to an employee’s contribution, which results in a 50-cent increase for every dollar the employee sets aside. Using a matching contribution formula will provide additional employer contributions only to employees who make deferrals to the 401(k) plan. If you choose to make nonelective contributions, the employer makes a contribution for each eligible participant, whether or not the participant decides to make a salary deferral to his or her 401(k) account.
Under a traditional 401(k) plan, you may have the flexibility of changing the amount of nonelective contributions each year, according to business conditions.
Safe Harbor 401(k) Plan
Under a safe-harbor plan, you can match each eligible employee’s contribution, dollar for dollar, up to 3 percent of the employee’s compensation, and 50 cents on the dollar for the employee’s contribution that exceeds 3 percent, but not 5 percent, of the employee’s compensation. Alternatively, you can make a nonelective contribution equal to 3 percent of compensation to each eligible employee’s account. Each year you must make either the matching contributions or the nonelective contributions.
SIMPLE 401(k) Plan
Employer contributions to a SIMPLE 401(k) plan are limited to either:
A dollar-for-dollar matching contribution, up to 3 percent of pay; or
A nonelective contribution of 2 percent of pay for each eligible employee.
No other employer contributions can be made to a SIMPLE 401(k) plan, and employees cannot participate in any other retirement plan of the employer.
The maximum amount that employees can contribute to their SIMPLE 401(k) accounts is $10,000 in 2005. For years after 2006, annual cost-of-living updates can be found at www.irs.gov/ep.
An additional catch-up contribution is allowed for employees aged 50 and over. The additional contribution amount is $2,000 for 2005 and $2,500 for 2006.
Employer and employee contributions to all of an employer’s plans are subject to a per employee overall annual limitation - the lesser of:
In addition, the amount employees can contribute (elective deferrals) before taxes under a traditional or safe harbor 401(k) plan is limited to $14,000 for 2005 and $15,000 for 2006.
Traditional and safe harbor 401(k) plans can allow the following additional catch-up contributions for employees aged 50 and over:
$4,000 - 2005
$5,000 - 2006
Employee salary deferrals are immediately 100 percent vested – that is, the money that an employee has put aside through salary deferrals cannot be forfeited. When an employee leaves employment, he/she is entitled to those deferrals, plus any investment gains (or minus losses) on their deferrals.
In SIMPLE 401(k) plans and safe harbor 401(k) plans, all required employer contributions are always 100 percent vested. In traditional 401(k) plans, you can design your plan so that employer contributions become vested over time, according to a vesting schedule.
Realizing 401(k) plan tax benefits requires that plans provide substantive benefits for rank-and-file employees, not only for business owners and managers. These requirements are referred to as non-discrimination rules and cover the level of plan benefits for rank-and-file employees compared to owners/managers.
Traditional 401(k) plans are subject to annual testing to assure that the amount of contributions made on behalf of rank-and-file employees is proportional to contributions made on behalf of owners and managers. Safe harbor 401(k) plans and SIMPLE 401(k) plans are not subject to annual non-discrimination testing.
Investing 401(k) Monies
After you decide on the type of 401(k) plan, you can consider the variety of investment options. One decision you will need to make in designing a plan is whether to permit your employees to direct the investment of their accounts or to manage the monies on their behalf. If you choose the former, you also need to decide what investment options to make available to the participants. Depending on the plan design you choose, you may want to hire someone either to determine the investment options to make available or to manage the plan’s investments. Continually monitoring the investment options ensures that your selections remain in the best interests of your plan and its participants.
Many of the actions needed to operate a 401(k) plan involve fiduciary decisions - whether you hire someone to manage the plan for you or do some or all of the plan management yourself. Controlling the assets of the plan or using discretion in administering and managing the plan makes you or the entity you hire a plan fiduciary to the extent of that discretion or control. Thus, fiduciary status is based on the functions performed for the plan, not a title. Be aware that hiring someone to perform fiduciary functions is itself a fiduciary act.
Some decisions with respect to a plan that are business decisions, rather than fiduciary decisions. For instance, the decisions to establish a plan, to include certain features in a plan, to amend a plan and to terminate a plan are business decisions. When making these decisions, you are acting on behalf of your business, not the plan, and therefore, you would not be a fiduciary. However, when you take steps to implement these decisions, you (or those you hire) are acting on behalf of the plan and thus, in making decisions, are acting as fiduciaries.
Those persons or entities that are fiduciaries are in a position of trust with respect to the participants and beneficiaries in the plan. The fiduciary’s responsibilities include:
Acting solely in the interest of the participants and their beneficiaries;
Acting for the exclusive purpose of providing benefits to workers participating in the plan and their beneficiaries, and defraying reasonable expenses of the plan.
Carrying out duties with the care, skill, prudence, and diligence of a prudent person familiar with such matters.
Following the plan documents;
Diversifying plan investments.
These are the responsibilities that fiduciaries need to keep in mind as they carry out their duties. The responsibility to be prudent covers a wide range of functions needed to operate a plan. And, since all these functions must be carried out in the same manner as a prudent person would carry them out, it may be in your best interest to consult experts in the various fields, such as investments and accounting.
In addition, for some functions, there are specific rules that help guide the fiduciary. For example, if your plan provides for salary reductions from employees’ paychecks for contribution to the plan, then these contributions must be timely deposited. The law states that this must be accomplished as soon as it is reasonably possible to do so, but no later than the 15th business day of the month following the payday. If you can reasonably make the deposits in a shorter time frame, you need to make the deposits at that time.
With these responsibilities, there is also some potential liability. However, there are actions you can take to demonstrate that you carried out your responsibilities properly as well as ways to limit your liability.
The fiduciary responsibilities cover the process used to carry out the plan functions rather than simply the end results. For example, if you or someone you hire makes the investment decisions for the plan, an investment does not have to be a “winner” if it was part of a prudent overall diversified investment portfolio for the plan. Since a fiduciary needs to carry out activities through a prudent process, you should document the decision-making process to demonstrate the rationale behind the decision at the time it was made.
In addition to the steps above, there are other ways to limit potential liability. The plan can be set up to give participants control of the investments in their accounts. For participants to have control, they must have sufficient information on the specifics of their investment options. If properly executed, this type of plan limits your liability for the investment decisions made by participants. You can also hire a service provider or providers to handle some or most of the fiduciary functions, setting up the agreement so that the person or entity then assumes liability.
Hiring a Service Provider
Even if you do hire a financial institution or retirement plan professional to manage the whole plan, you retain some fiduciary responsibility for the decision to select and keep that person or entity as the plan’s service provider. Thus, you should document your selection process and monitor the services provided to determine if a change needs to be made.
Some items to consider in selecting a plan service provider:
Information about the firm itself: affiliations, financial condition, experience with 401(k) plans, and assets under their control;
A description of business practices: how plan assets will be invested if the firm will manage plan investments or how participant investment directions will be handled, and proposed fee structure;
Information about the quality of prospective providers: the identity, experience, and qualifications of the professionals who will be handling the plan’s account; any recent litigation or enforcement action that has been taken against the firm; the firm’s experience or performance record; if the firm plans to work with any of it's affiliates in handling the plan’s account; and whether the firm has fiduciary liability insurance.
Once hired, these are additional actions to take when monitoring a service provider:
Review the service provider’s performance;
Read any reports they provide;
Check actual fees charged;
Ask about policies and practices (such as trading, investment turnover, and proxy voting); and
Follow up on participant complaints.
(For more information, see Understanding Retirement Plan Fees and Expenses and a sample fee disclosure form at www.dol.gov/ebsa. Click on "Publications," then "Compliance Assistance Pension Publications" to access 401(k) Plan Fees Disclosure Form.
Prohibited Transactions and Exemptions
There are certain transactions that are prohibited under the law to prevent dealings with parties that have certain connections to the plan, self-dealing, or conflicts of interest that could harm the plan. However, there are a number of exceptions under the law, and additional exemptions may be granted by the U.S. Department of Labor, where protections for the plan are in place in conducting the transactions.
For example, there is an exemption that permits you to offer loans to participants through your plan. If you do, the loan program must be carried out in such a way that the plan and all other participants are protected. Thus, the decision with respect to each loan request is treated as a plan investment and considered accordingly.
Finally, persons handling plan funds or other plan property generally must be covered by a fidelity bond to protect the plan against fraud and dishonesty.
Disclosing Plan Information to Participants
Plan disclosure documents keep participants informed about the basics of plan operation, alert them to changes in the plan’s structure and operations, and provide them a chance to make decisions and take timely action with respect to their accounts.
The summary plan description (SPD) – the basic descriptive document - is a plain-language explanation of the plan and must be comprehensive enough to apprise participants of their rights and responsibilities under the plan. It also informs participants about the features and what to expect of the plan. Among other things, the SPD must include information about:
When and how employees become eligible to participate in the 401(k) plan;
The contributions to the plan;
How long it takes to become vested;
When employees are eligible to receive their benefits;
How to file a claim for those benefits; and
Basic rights and responsibilities participants have under the federal retirement law, the Employee Retirement Income Security Act (ERISA).
The SPD should include an explanation about the administrative expenses that will be paid by the plan. This document must be given to participants when they join the plan and to beneficiaries when they first receive benefits. SPDs must also be redistributed periodically during the life of the plan.
A summary of material modification (SMM) apprises participants of changes made to the plan or to the information required to be in the SPD. The SMM or an updated SPD must be automatically furnished to participants within a specified number of days after the change.
An individual benefit statement (IBS) shows the total plan benefits earned by a participant and information on their vested benefits. The IBS must be provided when a participant submits a written request, but no more than once in a 12-month period, and automatically to certain participants who have terminated service with the employer. In addition, many plans choose to provide on a quarterly basis individual account statements that show the assets in a participant’s account, how it is invested, and any increases (or decreases) in investments during the period covered by the statement.
A summary annual report (SAR) is a narrative of the plan’s annual return/report, the Form 5500, filed with the Federal government (see Reporting to Government Agencies for more information). It must be furnished annually to participants.
A blackout period notice gives employees advance notice when a blackout period occurs, typically when plans change record keepers or investment options, or when plans add participants due to corporate mergers or acquisitions. During a blackout period, participants’ rights to direct investments, take loans, or obtain distributions are suspended.
Reporting to Government Agencies
In addition to the disclosure documents that provide information to participants, plans must also report certain information to government entities.
Form 5500 series
Plans are required to file an annual return/report with the Federal government. Depending on the number and type of participants covered, most 401(k) plans must file one of the two following forms:
Form 5500, Annual Return/Report of Employee Benefit Plan, or
Form 5500-EZ, Annual Return of One-Participant (Owners and Spouses) Retirement Plan
For 401(k) plans, the Form 5500 is designed to disclose information about the plan and its operation to the IRS, the U.S. Department of Labor, plan participants, and the public.
Most one-participant plans (sole proprietor and partnership plans) with total assets of $100,000 or less are exempt from the annual filing requirement. A final return/report must be filed when a plan is terminated regardless of the value of the plan’s assets.
Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc. is given to both the IRS and recipients of distributions from the plan during the year. It is used to report distributions (including rollovers) from a retirement plan. See Form 1099-R and the Form 1099-R and 5498 Instructions for additional information.
Distributing Plan Benefits
Benefits in a 401(k) plan are dependent on a participant’s account balance at the time of distribution.
When participants are eligible to receive a distribution, they typically can elect to:
Take a lump sum distribution of their account,
Roll over their account to an IRA or another employer’s retirement plan, or
Purchase an annuity.
Although 401(k) plans must be established with the intention of being continued indefinitely, you (as an employer) may terminate your plan when it no longer suits your business needs. For example, you may want to establish another type of retirement plan in lieu of the 401(k) plan.
Typically, the process of terminating a 401(k) plan includes amending the plan document, distributing all assets, and filing a final Form 5500. You must also notify your employees that the 401(k) plan will be discontinued. Check with your plan’s financial institution or a retirement plan professional to see what further action is necessary to terminate your 401(k). .
Even with the best intentions, mistakes in plan operation can still happen. The U.S. Department of Labor and IRS have correction programs to help 401(k) plan sponsors correct plan errors, protect participants and keep the plan’s tax benefits. These programs are structured to encourage you to correct the errors early. Having an ongoing review program makes it easier to spot and correct mistakes in plan operations. See the Resources section for further information.
Have you determined which type of 401(k) plan best suits your business?
Have you decided whether to make contributions to the plan, and, if so, whether to make nonelective and/or matching contributions? (Remember, you can may design your plan so that you may change your rate of contributions if necessary due to business conditions.)
Have you decided to hire a financial institution or retirement plan professional to help with setting up and running the plan?
Have you adopted a written plan that includes the features you want to offer, such as whether participants will direct the investment of their accounts?
Have you notified eligible employees and provided them with information to help in their decision-making?
Have you arranged a trust fund for the plan assets or will you set up the plan solely with insurance contracts?
Have you developed a record keeping system?
Are you familiar with the fiduciary responsibilities?
Are you prepared to monitor the plan’s service providers?
Are you familiar with the reporting and disclosure requirements of a 401(k) plan?
For help in establishing and operating a 401(k) plan, you may want to talk to a retirement plan professional or a representative of a financial institution that offers retirement plans – and take advantage of the help available in the following Resources section.
To Find Out More…
Expanded information on the topics addressed in this publication is available on the IRS and U.S. Department of Labor’s (DOL’s) Employee Benefits Security Administration Web sites, www.irs.gov/ep and www.dol.gov/ebsa. For the IRS, go to the IRS Web address and click on "More Topics" in the "Topics" section and then click on "Types Of Retirement Plans." For DOL, go to the DOL Web address and click on "Publications" and "Compliance Assistance Pension Publications."
The Web sites feature this publication as well as additional information on 401(k) plans and other retirement plans, as listed below. Publications can be ordered by calling the appropriate agency’s toll free number – for the IRS, 1.800.TAX-FORM (1.800.829.3676) or for DOL, 1.866.444.EBSA (3272).
Related materials available
For small businesses:
Related materials available from the IRS: