Hughes Hubbard & Reed LLP

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1 Hughes Hubbard & Reed LLP EMPLOYEE BENEFITS ADVISORY May 2001 Required GUST Amendments for Qualified Retirement Plans The deadline for adopting GUST amendments to qualified retirement plans and submitting them to the IRS is fast approaching. Although the IRS has previously extended this deadline several times, the IRS has announced that it will not be extending the deadline beyond the current deadline the last day of the plan year beginning on or after January 1, For calendar year plans, this deadline is December 31, (A later deadline may apply for plans which are prototype or volume submitter plans.) The GUST amendments reflect changes made to the tax laws in the last several years. Attached is a summary we have prepared of some of the more significant changes affecting qualified retirement plans. The summary updates our previous description of these changes by reflecting subsequent laws and IRS and DOL regulations. * * * If you have any questions about these changes or would like assistance in amending your plans, please contact Spencer L. Harrison at (212) or harrison@hugheshubbard.com, Gloria W. Nusbacher at (212) or nusbache@hugheshubbard.com, or James F. Delaney at (212) or delaney@hugheshubbard.com. This Advisory is for informational purposes only and is not intended as legal advice. One Battery Park Plaza 1775 I Street, N.W. 350 South Grand Avenue 201 South Biscayne Boulevard 47, Avenue Georges Mandel New York, NY Washington, D.C Los Angeles, CA Miami, FL Paris, France (212) (202) (213) (305)

2 Summary of Significant GUST Changes Affecting Qualified Plans I. Changes Affecting Both Defined Benefit and Defined Contribution Plans A. Military Leave. With respect to employees who return from military service with re-employment rights, (1) the period of the employee s military service must be credited as service for both vesting and benefit accruals; (2) if compensation is taken into account in determining plan benefits, compensation must be imputed for the period of military service; (3) the employee must be permitted a period of up to three times the length of the military service (but not more than five years) to make up any pre-tax or after-tax contributions he or she could have made during the period of military service; and (4) the employer must make any contributions which would have been made but for the period of military service. (Matching contributions may be conditioned on the employee first making any required contributions.) Employers do not have to make up any earnings or forfeiture allocations which may have been lost as a result of military service. These changes are effective for employees who return from military service on or after December 12, B. Highly Compensated Employees. Effective with the 1997 plan year, an employee is a highly compensated employee if he or she (1) is a 5% owner in either the current or the prior plan year, or (2) earned at least $80,000 (indexed for inflation) in the prior plan year and, if the employer elects, was in the employer s top-paid 20% of employees for such year. Non-calendar year plans may elect to use the calendar year beginning in the prior plan year in lieu of the prior plan year as the look-back year for applying the $80,000 test. An election to limit highly compensated employees to the top-paid 20% or to use a calendar year look-back year must apply to all of an employer s plans. C. Repeal of Family Member Aggregation Rule. Previously, a 5% owner or one of the top-paid 10 employees and certain of his or her family members were treated as a single employee for purposes of the $170,000 limit on compensation and discrimination testing. This rule has been repealed effective with the 1997 plan year. D. Leased Employees. Effective with the 1997 plan year, one of the tests for determining whether an individual is a leased employee is whether the individual is under the primary direction or control of the recipient employer. Previously, the test was whether the individual performs services of a type historically performed by employees of the recipient employer. 1

3 E. Commencement of Benefits to Age 70 ½ Employees. Effective January 1, 1997, distributions are no longer required to be made to employees (other than 5% owners) who are over age 70 ½ until they actually retire. However, because of IRS anti-cutback rules, employers will generally either have to continue making distributions beginning at age 70 ½ or give employees the option of deferring distributions to retirement. Under defined contribution plans, the need to continue age 70 ½ distributions can be avoided if the plan permits (or is amended to permit) in-service withdrawals to employees over age 70 ½. In addition, IRS regulations allow employers a one-time opportunity to adopt an amendment no later than December 31, 2001, eliminating age 70 ½ in-service distributions for any employees who reach age 70 ½ in a year after such an amendment is adopted. If a defined benefit plan ceases making age 70 ½ distributions, an actuarial adjustment will have to be made for the deferral of payments from age 70 ½ to actual retirement. If a plan continues to make in-service age 70 ½ distributions, these payments may now qualify as eligible rollover distributions since they are no longer required by law. Accordingly, the plan s direct rollover and withholding procedures may need to be revised. F. 30-Day Wait for Commencement of Benefits. Previously, the IRS required that the benefit commencement date for participants in a pension plan or a profit sharing plan subject to the IRS qualified joint and survivor annuity rules be no earlier than 30 days after the participant received an explanation of the plan s payment options. Effective September 1995, such plans may now permit participants to elect to reduce the 30-day waiting period to a seven-day waiting period and, effective with the 1997 plan year, defined benefit plans may let participants elect to have payment made retroactive to any date after termination of employment. G. Remittance of Employee Contributions. Effective February 3, 1997, employee contributions must be remitted to the plan as soon as they can reasonably be segregated from the employer s general assets, but not later than the 15th business day after the end of the month in which such amounts are withheld from pay. H. $5,000 Involuntary Cash Outs. Effective for plan years beginning after August 5, 1997, the threshold for involuntary cash outs may be increased from $3,500 to $5,000. This change is not required. Sponsors of defined benefit plans should consider the funding impact of increasing the involuntary cash out threshold. I. Code Section 415 Compensation. Effective with the 1998 limitation year, compensation for purposes of the Code Section 415 limits includes pre-tax contributions to 401(k) plans and cafeteria plans, and pre-tax contributions for qualified transportation fringe benefits. 2

4 J. Repeal of Code Section 415 Combined Plan Limit. Code Section 415 previously imposed a limit on the benefits of an employee who was a participant in both a defined benefit plan and a defined contribution plan maintained by the same employer. This limit has been repealed effective with the 2000 limitation year. K. Claims Procedures. The Department of Labor has revised its requirements for plan claims procedures effective for claims filed on or after January 1, The changes applicable to qualified plans relate primarily to claims for disability benefits. They include (1) shortened timeframes for notifying participants of disability benefit claims decisions and (2) a requirement that appeals of such claims be decided by a second plan fiduciary who is not a subordinate of the plan fiduciary making the initial determination and without giving deference to the initial determination. We understand that the Department of Labor has received a number of comments on the rules for disability benefit claims as they relate to qualified plans and is considering whether to change these rules. L. Proposed IRS Regulations Regarding Calculation of Age 70 ½ Required Minimum Distributions. The IRS has issued new proposed regulations regarding the calculation of required minimum distributions for participants over age 70 ½. The changes made by these proposed regulations would primarily affect defined contribution plans. The changes would simplify the calculation of lifetime distributions and generally result in smaller required distributions under defined contribution plans. Plan sponsors can elect to operate under the rules in these new proposed regulations beginning with distributions required for calendar year 2001 by adopting an IRS Model Amendment. II. Additional Changes Affecting Defined Benefit Plans A. Assumptions Used to Value Cash Outs. Defined benefit plans previously had to determine the amount of any cash out distributions using an interest rate assumption no less favorable to participants than a rate established by the Pension Benefit Guaranty Corporation ( PBGC ). Effective no later than the 2000 plan year, plans must determine the amount of any cash out using assumptions no less favorable to participants than a specified mortality table (currently based on GAM 83) and an interest rate based on the monthly average of the annual interest rate on 30-year Treasury securities. The employer can select whether the interest rate will change monthly, quarterly or annually and can use the 30-year Treasury rate for any one of the five months which precedes the monthly, quarterly, or annual period (or an average of the rate for two or more such consecutive months). These new assumptions apply to all cash outs (including those over $5,000) and generally result in significantly lower cash out amounts. Unlike most of the other GUST changes, the change to these new assumptions cannot be adopted retroactively. 3

5 B. Code Section 415 Limit on Annual Benefits. Changes have been made to the actuarial assumptions used to calculate the Code Section 415 limit for participants who commence benefits before age 62 or after their Social Security retirement age or who receive a form of payment other than a single life annuity or qualified joint and survivor annuity (such as a lump sum). If a participant commences benefits before age 62, the Code Section 415 dollar limit, as reduced for commencement at age 62, is further reduced using (1) the plan s interest rate and mortality assumptions (or factors) for early retirement, or (2) 5% and the mortality table which must now be used for cash outs (the GAM 83 table), whichever results in the lower limit. The Code Section 415 dollar limit is similarly increased if benefits commence after a participant s Social Security retirement age. If a participant s benefit is payable in a form of payment other than a single life annuity or qualified joint and survivor annuity (such as a lump sum), it must be converted to a life annuity in order to apply the Code Section 415 limits. This must now be done using (1) the plan s interest rate and mortality assumptions for the form of payment, or (2) 5% (or, for a form of payment other than a life annuity, the 30-year Treasury rate required for cash outs), and the GAM 83 mortality table, whichever results in the greater amount. This change is effective for the 1995 limitation year. However, a plan which was in existence on December 7, 1994, may elect to defer the effective date until any date prior to the 2000 limitation year and apply the new rules only to benefits accrued after that date. III. Additional Changes Affecting Defined Contribution Plans A. 401(k) Plan Testing. In addition to the change in the definition of highly compensated employee noted above, a number of changes have been made with respect to the actual deferral percentage ( ADP ) limit applicable to 401(k) elective deferrals of highly compensated employees and the actual contribution percentage ( ACP ) limit applicable to employee after-tax contributions and matching contributions of highly compensated employees. 1. Prior Year Data. Effective with the 1997 plan year, an employer may apply the ADP and ACP limits for any year by reference to the relevant contribution percentage for non-highly compensated employees for the prior year (rather than the current year). Plans are allowed to switch to the current year method from the prior year method at any time. However, after the 2001 plan year, a plan will generally be permitted to change to the prior year method from the current year method only once every six years unless, as the result of a business acquisition, the sponsoring employer maintains both a plan which uses the prior year method and a plan which uses the current year method. 4

6 2. Correction of Excess Contributions. Effective with the 1997 plan year, any contributions which must be returned as a result of the ADP or ACP limit must be allocated to highly compensated employees on the basis of the dollar amount of their contributions rather than their contribution percentages. 3. Employees under Age 21 or with less than One Year of Service. Effective with the 1999 plan year, if a plan allows employees who are under age 21 or have less than one year of service to participate, it will generally be able to exclude any such employees who are not highly compensated employees in determining the ADP and ACP limits. 4. Safe Harbors (Exemptions from Testing). Effective for any plan year beginning on or after January 1, 1999, a plan will be exempt from ADP testing if: a. each eligible employee is given a notice of his or her rights under the plan within a reasonable period of time before the plan year (or, in the case of new participants, before they first become eligible); b. the employer provides each non-highly compensated employee with an annual non-elective contribution of at least 3% of compensation or a matching contribution of at least 100% of the first 3% and 50% of the next 2% of compensation; c. the employer contribution is immediately 100% vested; and d. the employer contribution is subject to the same restrictions on distribution that apply to 401(k) contributions, except that they cannot be available for hardship distributions. Matching contributions will also be exempt from ACP testing if (i) the foregoing requirements are met; (ii) matching contributions are not made with respect to contributions in excess of 6% of compensation; (iii) the rate of matching contributions does not increase as the rate of employee contributions increases; and (iv) the rate of matching contributions is not greater for any highly compensated employee at any rate of contribution. There is no safe harbor for after-tax employee contributions and these contributions remain subject to the ACP test. B. Exemption from 50 Employee Rule. Effective with the 1997 plan year, defined contribution plans are exempt from the requirement that plans benefit at least 50 employees (or, if less, 40% of the employer s employees). 5

7 C. Contributions for Disabled Employees. Previously, contributions could be made only on behalf of disabled employees who were not highly compensated employees. Effective with the 1997 year, an employer may make contributions on behalf of all participants who are totally and permanently disabled (as defined by the IRS) if certain conditions are satisfied. D. Code Section 415 Dollar Limit. The Code Section 415 dollar limit on annual additions to a participant s account ($35,000 for 2001) will now be indexed for inflation in increments of $5,000. E. Hardship Withdrawals of 401(k) Contributions No Longer Eligible for Rollover. Effective January 1, 1999 (or, at the employer s election, January 1, 2000), hardship withdrawals of 401(k) contributions are no longer eligible rollover distributions. As a result, they are no longer eligible to be rolled over to an IRA or qualified plan and are subject to voluntary income tax withholding (rather than mandatory 20% withholding). This change is limited to hardship withdrawals of 401(k) contributions and does not apply to hardship withdrawals of other types of contributions, such as matching or profit sharing contributions. F. Elimination of Certain Installment or Annuity Forms of Payment Permitted. Effective September 6, 2000, IRS regulations generally permit a defined contribution plan to eliminate installment or annuity forms of payment (other than the required normal form of annuity in the case of a money purchase pension plan). No such amendment can apply to participants until at least 90 days after they have been provided a summary of material modifications which describes the amendment. G. Limit on Mandatory 401(k) Investment in Employer Securities. Effective with respect to elective deferrals made after the 1998 plan year, a plan generally cannot require that elective deferrals in excess of 1% of compensation be invested in employer securities. This limitation does not apply to participant-directed investments or to ESOPs. H. Employer Securities - SEC Rule 16b-3. Plans which are invested in publicly traded employer securities and which have limited transactions by executive officers in order to satisfy the exemptive conditions of SEC Rule 16b-3 may wish to liberalize the limitations in light of the 1996 changes to that rule. I. 401(k) Plans for Tax-Exempt Organizations. Effective with respect to the 1997 plan year, non-governmental tax-exempt organizations are permitted to maintain 401(k) plans. 6

8 IV. Additional Changes Affecting Small Employers and Partnerships A. Repeal of Aggregation Rules Applicable to 10% Owner-Employees. Previously, under Code Section 401(d), all businesses which were 50% owned by one or more 10% owner-employees were treated as a single employer for discrimination testing. Effective with the 1997 plan year, these rules have been repealed. B. SIMPLE 401(k) or IRA. Effective with the 1997 plan year, an employer with under 100 employees may establish a Savings Incentive Match Plan for Employees ( SIMPLE ). SIMPLE plans are exempt from ADP and ACP testing and top heavy testing. A SIMPLE plan may be established either as a 401(k) plan or an IRA. An employer generally may establish a SIMPLE plan only if it has no other qualified plan. Under a SIMPLE plan, employees must be permitted to make pre-tax contributions of up to $6,000 (indexed) annually. Additionally, the employer must either make an annual non-elective contribution equal to 2% of compensation or a 100% matching contribution up to 3% of compensation, and these contributions must be immediately 100% vested. C. Matching Contributions for Partners. Previously, matching contributions made on behalf of partners were treated as elective deferrals, and thus subject to the annual dollar limit and the ADP limit applicable to 401(k) elective deferrals. Effective with the 1998 plan year, matching contributions made on behalf of partners will not be treated as 401(k) elective deferrals (provided they are not used for ADP testing). D. S Corporations. Effective with the 1998 tax year, a plan maintained by an S corporation may invest in the stock of the corporation, although this will result in unrelated business income tax ( UBIT ) unless the plan is an ESOP. (The plan is treated as a single shareholder for purposes of the 75 shareholder limit applicable to S corporations.) An ESOP maintained by an S corporation is exempt from the requirement that distributions be available in employer securities (and, thus, may mandate cash distributions). However, certain other advantages available to ESOPs are not available to ESOPs maintained by an S corporation. 7