Retirement Plans for Small Businesses

Transcription

1 Retirement Plans for Small Businesses

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5 Mission Statement NATP is a partner for all tax professionals in helping them achieve business success through education, resources and other services pertinent to the tax preparation business. Who We Are The National Association of Tax Professionals (NATP) exists to serve professionals working in all areas of tax practice through tax education, federal tax research, tax updates and tax office supplies. NATP members work at offices that assist over 12 million people with tax preparation and planning. The average NATP member has been in the tax business for over 20 years and holds a tax/financial designation and/or a college degree. Formed as a nonprofit organization in 1979, NATP has grown to 25,000 members nationwide who include enrolled agents, certified public accountants, accountants, attorneys and financial planners. The national headquarters is located in Appleton, WI. Our Commitment to You This text has been prepared with due diligence; however, the possibility of mechanical or human error does exist. Any addendums for this text will be posted on NATP s website. The text is not intended to address every situation that may arise. Consult additional sources of information, as needed, to determine the solution of tax questions. This publication is designed to provide accurate and authoritative information on the subject matter covered. It is presented with the understanding that the National Association of Tax Professionals is not engaged in rendering legal or accounting services. This material is updated to At the time of updating, the most recent authorized forms are for Therefore, 2014 forms are used throughout the text for examples and illustrations. Addendums can be found at NATP i

6 Acknowledgment We would like to thank Bloomberg BNA Interactive Forms for the contribution made in providing the 2014 Interactive Forms for completing examples included in this text. COPYRIGHT The National Association of Tax Professionals (NATP), Appleton, WI. Reprinting any part of this text without written permission from NATP is prohibited. ii 2015 NATP

7 Course Description Experts estimate that Americans will need 70 to 90 percent of their preretirement income to maintain their current standard of living when they stop working. Numerous options are available to save for retirement with tax implications for each. Options include those that offer current tax savings and others where the retiree doesn t see a tax benefit until he or she starts drawing funds out of the plan. In addition, some plans require the employer to match contributions and others do not. In this course, learn about the different retirement plans available for small businesses and the tax reporting of each. Help taxpayers determine which type of retirement plan is the best choice for them. Objectives Upon completion of this course, you will be able to: Identify the features of SEPs, SIMPLE IRAs and 401(k) plans. Calculate the maximum contribution for various types of retirement plans. Compute the deduction for various types of retirement plan contributions. Identify the employer s responsibility for maintaining and funding retirement plans. Distinguish between the tax treatment of sole proprietors, partnerships and corporations with regard to retirement plans NATP iii

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9 Table of Contents Retirement Plan Basics... 1 Compensation... 2 Compensation Definitions... 2 HCE... 4 Leased employee... 4 Vesting... 5 SEP... 5 Establishing the Plan... 6 Operating the Plan... 8 Terminating the Plan SIMPLE IRA Plans Establishing the Plan Operating the Plan Terminating the Plan (k) Plans Types of 401(k) Plans Establishing the Plan Operating the Plan Terminating the Plan Employer Tax Treatment Sole Proprietor Partnership Corporation Retirement Plans Review Questions Retirement Plans Review Answers Appendix Index NATP v

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11 Retirement Plan Basics Retirement Plan Basics Retirement savings plans offer the employer and employee a tax-favored way to save for retirement. Retirement plans can help an employer attract and retain qualified employees as well as offer tax savings to the employer. An employer can deduct contributions made to the plan on behalf of employees. Trustees fees paid that are not deducted from contributions to the plan are also deductible. Earnings on the contributions are generally tax free until the employee receives distributions from the plan. There are other incentives for establishing a retirement plan, including: High contribution limits so employees can set aside large amounts for retirement. Catch-up rules that allow employees age 50 or older to set aside additional contributions. A tax credit for small employers for part of the ordinary and necessary costs of starting a simplified employee pension (SEP), savings incentive match plan (SIMPLE) or other qualified plan. The credit equals 50% of the cost to set up and administer the plan, up to a maximum of $500 per year for each of the first three years of the plan. Tax credit for certain low- and moderate-income individuals that make contributions to their plan. A Roth 401(k) program can be added to a 401(k) plan to allow participants to make after-tax contributions into a separate account. Distributions upon death, disability or after age 59 ½ from Roth accounts held for five years, including earnings, are generally tax-free NATP 1

12 Each type of retirement plan has its own features, requirements and maximum contribution limits. SEP, SIMPLE and 401(k) plans are a few of the common types of retirement plans. Generally, the following terminology has the same meaning in each type of plan. Compensation Each plan document should provide a general definition of compensation and may have several different definitions of compensation for different purposes. Many plans choose a safe harbor definition under 414(s). Compensation Definitions Section 414(s) provides several alternatives to define compensation for purposes of the contributions requirements. Alternative One Compensation as used for purposes of the annual addition limitation to defined contribution plans is defined under 415(c)(3). Items included in compensation under 415(c)(3) are listed in Reg (c)-2(b) as: Remuneration for personal services, including wages, salaries, fees, commissions, tips, bonuses, taxable fringe benefits and foreign earned income. Income included in the employee s gross income for amounts received under accident and health plans and as compensation for injuries or sickness. Amounts paid or reimbursed by the employer for moving expenses incurred by an employee to the extent that, at the time of payment, it is reasonable to believe the amounts are not deductible by the employee. Income included in the employee s gross income for the value of a nonqualified stock option in the tax year when it is granted. Amounts includable in the employee s gross income under a 83(b) election. Amounts that are includable in the employee s gross income under the rules of 409A or 457(f)(1)(A) or because the amounts are constructively received by the employee. Elective deferrals to 401(k) plans, 403(b) plans, SARSEPs, SIMPLE IRA plans and 457(b) plans NATP

13 Retirement Plan Basics Alternative Two Compensation within the meaning of 415(c)(3), reduced by: Reimbursements or other expense allowances. Fringe benefits (cash and noncash). Moving expenses. Deferred compensation. Welfare benefits. Alternative Three Either of the first two alternatives, modified at the employer s discretion to decrease compensation by elective contributions that are made by the employer on behalf of its employees that are not includable in gross income under 125, 132(f)(4), 402(e)(3), 402(h) or 403(b). Alternative Four Either of the first two alternatives, modified to include all of the following: Elective contributions made by the employer on behalf of its employees that are not includable in gross income under 125, 402(e)(3), 402(h) and 403(b). Compensation deferred under an eligible deferred compensation plan under 457(b). Employee contributions under governmental plans. Alternative Five Any of the previous alternatives modified to exclude items of compensation only with respect to highly compensated employees (HCEs). Alternative Six Any other definition of compensation if it is reasonable, nondiscriminatory and does not favor HCEs. Reg (c)-2(c) specifically excludes these items from compensation NATP 3

14 Employer contributions to a qualified retirement plan, deferred compensation plan, SEP or SIMPLE IRA to the extent the contributions are not includable in the employee s gross income for the tax year in which contributed. Amounts realized from the exercise of a nonqualified stock option. Amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option. Amounts realized when restricted stock or other property either becomes freely transferable or is no longer subject to a substantial risk of forfeiture under 83. Other amounts that receive special tax benefits, such as group-term life insurance. Distributions from a funded deferred compensation plan. NOTE: Pass-through income to an S corporation shareholder is not compensation for making retirement plan contributions. HCE An HCE is defined by 414(q). An HCE is an individual who meets one of the following. Owned more than 5% of the interest in the business at any time during the year or preceding year, regardless of how much compensation they earned or received. For the preceding year, received compensation of more than $120,000 if the preceding year is 2015 ($115,000 for 2014) and was one of the top 20% paid employees. Leased employee According to 414(n), certain leased employees must be treated as employees for retirement plan purposes. A leased employee is considered an employee if the individual does all of the following [ 414(n)(2)]. Provides services to the business under an agreement with a leasing organization. Has performed services for the business substantially full-time for at least one year. Performs services under the business s primary direction or control. According to Notice 84-11, Q&A-7, a leased employee is considered to have performed services on a substantially full-time basis if they have worked the lesser of 1,500 hours of service or 75% of the average number of hours customarily worked by an employee of the business in the particular position NATP

15 Retirement Plan Basics A leased employee can be excluded from participation under the employer s retirement plan if the nondiscriminatory coverage requirements of 410(b) are met. Furthermore, a leased employee is not treated as an employee if all of the following conditions are met [ 414(n)(5)]. Leased employees are not more than 20% of the employer s nonhighly compensated work force. The employee is covered under the leasing organization s qualified pension plan. The leasing organization s plan is a money purchase pension plan that has all of the following provisions. Immediate participation. Full and immediate vesting. A nonintegrated employer contribution rate of at least 10% of compensation for each participant. Vesting Vesting is the process by which the right to a participant s accrued benefit becomes nonforfeitable. Generally, the years and hours of service determine the extent to which a participant s account is nonforfeitable. Plans that are eligible for a vesting schedule are beneficial to employers as they are great incentives to retain employees. SEP A SEP allows an employer to set up a SEP-IRA for each of their employees. Employers must contribute a uniform percentage of compensation for each employee, although they are not required to contribute every year. NOTE: Because the employer is required to make all the contributions, SEPs are ideal for sole proprietors with no employees. Most employers, including sole proprietors, can establish a SEP. SEPs have low start-up and operating costs and can be established using a two-page form. Furthermore, an employer can decide how much to contribute to the SEP each year, which offers them significant flexibility when net income varies NATP 5

16 Advantages of a SEP include: Can establish a SEP as well as make contributions as late as the extended due date of the tax return. Contributions to a SEP are tax deductible and earnings are deferred until withdrawn. The employer is not locked into making a contribution each year. The employer decides each year whether and how much to contribute to the employees SEP-IRAs. Generally, an employer does not have to file any documents with the government such as Form 5500, Annual Return/Report of Employee Benefit Plan, Form 5500-SF, Short Form Annual Return/Report of Small Employee Benefit Plan, or Form 5500-EZ, Annual Return of One-Participant (Owners and Their Spouses) Retirement Plan. Sole proprietors, partnerships and corporations, including S corporations, can set up SEPs. The employer can be eligible for a tax credit of up to $500 per year for each of the first three years for the cost of starting the plan. Administrative costs are low. Disadvantages of a SEP include: SEPs must cover part-time employees that have provided services to the employer for three out of the five preceding years if they are age 21 or older and made at least $600 ($550 for ) during the year. No aggressive allocation formulas are allowed. SEPs cannot invest in life insurance policies. Participants are not allowed to borrow money from their account. No delayed vesting schedule is allowed. This means that contributions to employee accounts are nonforfeitable. Depending on state law, assets in a SEP may not have the same degree of protection from creditors as qualified plans. Establishing the Plan A SEP can be established as late as the due date, including extensions if timely filed, of the business s income tax return for the year the business wants to establish the plan. Example Sparky Inc., a corporation, has a tax year ending on December 31, Sparky filed for an automatic 6-month extension. Sparky has until September 15, 2016, to establish the SEP plan, make the initial contribution and deduct the amounts as an expense on the 2015 tax return NATP

17 SEP There are a few simple steps to establish a SEP. Step 1: The first step is to contact a retirement plan professional or a representative of a financial institution that offers retirement plans and choose the IRS model SEP or another plan document offered by the financial institution. The IRS model SEP is chosen by completing Form 5305-SEP, Simplified Employee Pension Individual Retirement Accounts Contribution Agreement. Regardless of the SEP document used, when completed, the document should include: Name of employer. Requirements for employee participation (for example, years of service, age, compensation minimum). Signature of a responsible official. Written allocation formula for the employer s contribution. Choosing a financial institution for the SEP plan is an important decision for a business since that entity becomes a trustee to the plan. Trustees are generally banks, financial institutions, mutual funds and insurance companies that issue annuity contracts. Trustees work closely with employers and agree to: Receive and invest contributions. Provide each participant with a notice of employer contributions made each year and the value of their SEP-IRA at the end of the year. Step 2: Complete and sign Form 5305-SEP or another plan document if not using the IRS model form. This form or document becomes the plan s basic legal document that describes the employees rights and benefits. This form is used as a reference since it states the plan s terms and should not be sent to the IRS. The form should be kept with the employer s permanent records. Step 3: Give each eligible employee a copy of Form 5305-SEP, or other plan document if not using the IRS model form, and its instructions. Additionally, employees should be given certain information about SEP-IRAs. The model SEP is not considered adopted until each employee is provided with a written statement explaining the following items. A SEP-IRA can provide different rates of return and contain different terms than other IRAs the employee may have. The administrator of the SEP will provide a copy of any amendment within 30 days of the effective date, along with a written explanation of its effects. Participating employees will receive a written report of employer contributions made to SEP-IRAs by the later of January 31 of the year following the year for which the contribution was made or 30 days after the contribution is made NATP 7

18 Operating the Plan A SEP is easy to operate. The trustee takes care of depositing the contributions, investments, annual statements and any required filing with the IRS. An employer must ensure that the plan is kept compliant with current law and all eligible employees are allowed to participate. Participation SEP-IRAs are set up for each eligible employee. A SEP-IRA might have to be set up for a leased employee, but does not have to be set up for an excludable employee. An employer can choose to be less restrictive than the minimum requirements for eligible employees. The standard Form 5305-SEP has blank spaces for the age and years of service of eligible employees. The IRS does not update the form annually, but the limits in effect for the current year still apply. The asterisks indicate amounts that are increased by the annual cost-of-living adjustments. For 2015, the number before the first asterisk is $600, the second is $265,000 and the third is $53, NATP

19 SEP An eligible employee is an individual that meets all of the following requirements [ 408(k)(2)]. Age requirement has attained age 21. Service requirement has performed any services for the employer during at least three of the last five years. Compensation requirement has received at least $600 ($550 for ) in compensation from the employer. PRACTITIONER POINTER: A SEP must cover all employees that meet the three requirements above. This means that part-time employees can be eligible to participate in a SEP plan. Employers should understand that if they make contributions for themselves, they also have to make contributions for all their eligible employees. Certain employees can be excluded from coverage under a SEP including: Employees covered by a union agreement whose retirement benefits were bargained for in good faith by the employees union and the employer. Nonresident alien employees that have not received U.S. source wages, salaries or other personal services compensation from the employer. Compensation generally includes pay that an employee receives for a year s work. Employers must follow the definition of compensation included in the plan document. Compensation for SEPs follows the definition of compensation under 414(s) [ 408(k)(7)(B)]. Since the model IRS Form 5305-SEP does not specifically define which of the alternative definitions to use under 414(s), presumably the employer would pick one and use it consistently. Contributions An employer has an obligation to forward contributions to the trustee for any employees eligible to participate in the SEP plan. Contributions must be in the form of money (for example, cash or check) and an employer cannot contribute property. Unlike contributions to a traditional IRA, an employer is allowed to contribute under a SEP plan for employees over age 70½. An employer does not have to contribute every year. If an employer makes a contribution, the contribution must be based on a written allocation formula and must not discriminate in favor of HCEs. Furthermore, contributions must be made to the SEP-IRAs of all employees who actually performed personal services during the year for which the contributions are made NATP 9

20 NOTE: Employees who die or terminate employment before the contributions are made must receive a contribution into their SEP since they performed services for the employer during the year. Contributions to an employee s SEP-IRA account cannot exceed the lesser of 25% of the employee s compensation for the year or $53,000 for 2015 ($52,000 for 2014). Compensation should be defined in the plan document. As stated earlier, amazingly Form 5305-SEP does not actually define compensation, although the model plan documents for SIMPLE plans do define compensation very precisely. Through its online video portal, the IRS has stated that if you are using Form 5305-SEP, base employee allocations on total compensation. Unfortunately, this doesn t really say anything, so an employer may consider either modifying Form 5305-SEP to actually define compensation or to follow compensation as defined under 414(s). NOTE: An employer can contribute a different percentage of compensation each year, but it must be uniform among all plan participants. Employee salary reduction contributions (elective deferrals) cannot be made under a SEP. Thus, a SEP does not provide a catch-up contribution for employees age 50 or older. Example Samantha earned $22,000 in wages. The maximum contribution that can be made into her SEP-IRA is $5,500 ($22,000 x 25%). There is an annual compensation limit for contributions into a SEP. For 2015, an employer cannot consider the part of an employee s compensation over $265,000 ($260,000 for 2014) when calculating the contribution limit for an employee. Example Stern Corp. has an employee, Tabitha, who earned $272,000 for Stern elected to make a 15% contribution into every eligible employee s SEP-IRA account. Stern Corp. contributes $39,750 ($265,000 x 15%) into Tabitha s account. Even though the maximum amount that can be contributed for each employee is $53,000, the maximum amount of compensation that can be used to determine the calculation is $265,000 for Had Stern chosen to contribute 25% of compensation for 2015, the maximum SEP contribution would have been limited to $53,000, even though 25% of $265,000 is $66, NATP

21 SEP If an employer has more than one plan, the contributions into the other plan can be limited by the SEP contributions. If an employer makes contributions to a defined contribution plan, such as a 401(k) plan, the annual additions to an account are limited to the lesser of $53,000 ($52,000 for 2014) or 100% of the participant s compensation. In determining this limit, an employer must add all contributions made to all defined contribution plans maintained by the employer. A SEP is considered a defined contribution plan for this limit and SEP contributions must be added to the contributions of other defined contribution plans maintained by the employer. Example Lights Out Inc. maintains a SEP and 401(k) plan. Lights Out makes contributions of 10% to employee s SEP-IRAs and also makes matching contributions of up to 5% of the employee s compensation to the 401(k) plan. In 2015 Tucker, age 36, had compensation of $310,000. Tucker elected to contribute 10% of his earnings into the 401(k) plan maintained by Lights Out. Tucker contributed the maximum elective deferral allowed of $18,000. For 2015, Lights Out calculates the contributions into Tucker s SEP-IRA and 401(k) as follows: SEP contribution ($265,000 x 10%) $26, (k) match: Lesser of compensation ($310,000) or $53,000 $53,000 Less: SEP contribution (26,500) Elective deferral (18,000) Total 401(k) match 8,500 Total employer contribution $35,000 Even though the total 5% matching contribution would have been $13,250 ($265,000 x 5%), Lights Out can only contribute $8,500 into Tucker s 401(k) account because SEP contributions must be added to the other 401(k) contributions to determine the annual limitation. The combination of Tucker s elective deferral and employer contributions is $53,000. There are special rules for calculating the maximum SEP contribution for a self-employed taxpayer. If you are self-employed (a sole proprietor, or a working partner in a partnership or limited liability company), you calculate your self-employment (SE) tax using the amount of your net earnings from self-employment and following the instructions on Schedule SE, Self-Employment Tax. However, you must make adjustments to your net earnings from self-employment to arrive at your plan compensation, which is the amount you use to determine the plan contribution/deduction for yourself NATP 11

22 Since the deduction for contributions to a self-employed taxpayer s SEP-IRA and their net earnings depend on each other, the deduction for contributions to the SEP-IRA must be determined indirectly by reducing the contribution rate. The formula for determining the self-employed taxpayer s rate from the employee percentage is: Owner % = Employee % 1 + Employee % Example Johnny is self-employed and contributed 25% in his employees SEP-IRAs. Johnny s contribution rate is 20% [25% (1 +.25)]. When figuring the deduction for contributions made for a self-employed person s SEP- IRA, compensation is net earnings from self-employment, minus: The deduction for one-half of SE tax. The deduction for contributions to the self-employed person s SEP-IRA. Note that your plan compensation and the amount of your own plan contribution/deduction depend on each other - to compute one, you need the other (this is a circular calculation). To determine the maximum deductible amount by a self-employed taxpayer, the Deduction Worksheet for Self-Employed from Pub. 560, Retirement Plans for Small Business (SEP, SIMPLE, and Qualified Plans), can be used. Pub. 560 was not updated at the time this book was prepared. The 2014 version of the worksheet is presented in this material NATP

23 SEP 2015 NATP 13

24 Example Billy operates a sole proprietorship with no employees and has a net profit of $85,000 from Schedule C, Profit or Loss From Business (Sole Proprietorships), for Billy has a model Form 5305-SEP plan and would like to contribute the maximum amount to his SEP-IRA in Billy completes the applicable worksheet to see how much he can contribute. The maximum deduction Billy is allowed on Form 1040, Line 28, is $15, NATP

25 SEP The deduction for contributions to a SEP depends on the tax year for which the SEP is maintained. If the SEP is maintained on a calendar year basis, the yearly contribution is deducted on the tax return for the year within which the calendar year ends. Example Gary is a sole proprietor who files an extension for his 2015 tax return. Gary sets up a SEP and makes his 2015 SEP contribution on October 15, The contribution made in 2016 may be deducted on Gary s 2015 tax return if designated as a 2015 contribution. If the tax return is filed and the SEP is maintained on a fiscal year or short year, deduct contributions made for a year on the tax return for that year. Example Smarty is a fiscal year corporation whose tax year ends June 30. Smarty maintains a SEP plan on a calendar year basis. Smarty deducts the SEP contributions made for the calendar year 2015 on its tax return for the year ending June 30, If an employer made SEP contributions that are more than the deduction limit (nondeductible contributions), the employer can carry over and deduct the difference in later years. The carryover when combined with the contribution in the later year is subject to the deduction limit for that year. Nondeductible contributions to a SEP can be subject to a 10% excise tax. Distributions Participants cannot take loans from their SEP-IRA. However, participants can take withdrawals at any time. Distributions from a SEP-IRA are subject to income tax in the year the participant receives a distribution. If the participant withdraws money from a SEP- IRA before age 59½, the 10% additional tax applies, unless another exception to early IRA distributions applies. Although SEPs are considered qualified plans for contributions purposes, they are treated as IRAs to the individual account holder for distribution and required minimum distribution (RMD) purposes. As with traditional IRAs, participants in a SEP-IRA must begin RMDs from their accounts by April 1 of the year following the year the participant reaches age 70½. RMDs must begin even if the participant is still an employee NATP 15

26 Example John is an employee covered by his employer s SEP-IRA plan. John s employer makes a contribution to a SEP-IRA on John s behalf. John is considered an active participant in a retirement plan for determining deductibility of traditional IRA contributions and eligibility for Roth IRA contributions. However, assuming John meets the income limitation requirements, John can still make a full contribution to either a traditional or Roth IRA. Once funded, John s SEP-IRA follows the IRA rules for early distributions and RMDs. Example John has a SEP-IRA and a traditional IRA. John is required to take RMDs. The total value of Johns SEP-IRA and traditional IRA on December 31 of the preceding year is the account balance used for calculating his RMD. Rollovers A SEP-IRA can be rolled over tax-free to another SEP-IRA, traditional IRA or to another employer s qualified retirement plan, provided the other plan allows rollovers. Sep IRA Traditional IRA Sep IRA Qualified Retirement Plan Communications Employees must receive certain disclosure documents from the employer and/or financial institution/trustee. The following is information the employee must receive. From the employer: A copy of Form 5305-SEP and its instructions (or other document that was used to establish the plan.) A written statement containing information about the terms of the SEP, how changes are made to the plan and when employees are to receive information about contributions to their accounts NATP

27 SIMPLE IRA Plans From the financial institution: An annual statement reporting the fair market value (FMV) of the account. Copy of the annual statement filed with the IRS containing contributions and FMV information (for example, Form 5498, IRA Contribution Information). If distributions are received, a copy of the form that is filed with the IRS for the individual s distribution (for example, Form 1099-R, Distributions From Pension, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.). Notification by January 31 each year when a minimum distribution is required, if applicable. Terminating the Plan SEPs are established with the intention of continuing indefinitely; however, the time can come when a SEP no longer suits the needs of the business. To terminate a SEP, notify the financial institution that a contribution will not be made next year and the contract or agreement is being terminated. It is not required, but an employer should notify their employees that the plan has been terminated. An employer is not required to give notification to the IRS that the SEP has been terminated. SIMPLE IRA Plans A SIMPLE plan is a retirement plan allowable for employers with 100 or fewer employees. A SIMPLE plan allows employees to contribute a percentage of their salary each paycheck and also requires employer contributions. SIMPLE plans are easy to set up. An employer completes a short form to establish a plan and ensure that individual SIMPLE IRAs are set up for each employee. A financial institution can do much of the paperwork. Furthermore, administrative costs are low. Employers can either allow employees to set up their own SIMPLE IRAs at a financial institution of their choice or require all SIMPLE IRAs to be maintained at one financial institution chosen by the employer, although they can later roll them over. Employees can decide how and where the money is invested and keep their SIMPLE IRAs when changing jobs. Additional advantages of a SIMPLE plan include: An employer can choose to match employee contributions for those that decide to participate or to contribute a fixed percentage of all eligible employees compensation NATP 17

28 An employer can be eligible for a tax credit of up to $500 per year for each of the first three years for the cost of starting a SIMPLE plan. Employers are not required to file annual financial reports (for example, Form 5500). Disadvantages of a SIMPLE plan include: No option for graduated vesting to improve employee retention. Employer contributions are required each year, even if the business did not make a profit. Cannot impose restrictions on the withdrawal of funds. Compliance with notice requirements can be difficult. Establishing the Plan A business must meet two requirements before establishing a SIMPLE plan. First, the business must have 100 or fewer employees who earned $5,000 or more during the preceding calendar year. A business must take into account all employees employed at any time during the calendar year regardless of whether they are eligible to participate. Employees include self-employed taxpayers who receive earned income and leased employees. NOTE: Once a SIMPLE plan is established, an employer must continue to meet the 100-employee limit each year the plan is maintained. The second requirement is that the business cannot currently have another retirement plan unless the employer maintains a qualified plan for employees under a collective bargaining agreement. An employer can set up a SIMPLE plan effective on any date from January 1 through October 1 of a year, provided the employer did not previously maintain a SIMPLE plan. This rule does not apply to a business that is a new employer coming into existence after October 1 of the year the SIMPLE plan is set up, if the plan was set up as soon as administratively feasible after the business comes into existence. Furthermore, if the business previously maintained a SIMPLE plan, the SIMPLE plan can only be effective on January 1 of a year. NOTE: A SIMPLE plan cannot have an effective date that is before the date the plan is adopted NATP

29 SIMPLE IRA Plans Example XYZ partnership forms on February 15. XYZ meets with its tax advisor in November and discusses setting up a retirement plan for its employees. It is too late for XYZ to establish a SIMPLE plan for the current year. If XYZ wants to establish a SIMPLE plan, it must wait until the next year. Had XYZ formed in November, it could still set up a SIMPLE plan for the current year if it set up the plan as soon as administratively feasible. There are three steps in establishing a SIMPLE plan. Step 1: Contact a retirement plan professional or a representative of a financial institution that offers retirement plans. Many financial institutions have a pre-approved or prototype SIMPLE plan form an employer can review. Choosing a financial institution for the SIMPLE plan is an important decision for a business since that entity becomes a trustee to the plan. Trustees are generally banks, mutual funds and insurance companies that issue annuity contracts. Trustees work closely with employers and agree to: Receive and invest contributions. Provide each participant with a notice of employer contributions made each year and the value of their SIMPLE-IRA at the end of the year. Step 2: Choose a model form or other plan document offered by the financial institution. If the financial institution offers a model SIMPLE plan document, either of two IRS forms are usually used. Which form depends on whether the employer decides to select the financial institution that receives the contributions or allow employees to select their financial institutions. Form 5304-SIMPLE, Savings Incentive Match Plan for Employees of Small Employers (SIMPLE) Not for Use With a Designated Financial Institution, is used if employees are allowed to select the financial institutions that receives their contributions. Form 5305-SIMPLE, Savings Incentive Match Plan for Employees of Small Employers (SIMPLE) for Use With a Designated Financial Institution, is used if the employer requires that all contributions under the plan be initially deposited with a designated financial institution. Step 3: Complete and sign the selected IRS form or other plan document. This form or document becomes the plan s basic legal document that describes the employees rights and benefits. This form is used as a reference since it states the plan s terms and should not be sent to the IRS. Keep the original form with the employer s permanent records. Do not mail or file the form with the IRS NATP 19

30 Operating the Plan Participation An employer s choice of which employees to cover should be included in the selected plan document. An employer can choose to cover all employees without restriction. At a minimum, the employer must cover employees that received at least $5,000 in compensation during any two years prior to the current calendar year and are reasonably expected to receive at least $5,000 during the current calendar year [ 408(p)(4)]. NOTE: If less restrictive eligibility requirements are used, an employer cannot impose any other conditions for participating in the SIMPLE plan. Certain employees can be excluded from coverage under a SIMPLE plan. Employees covered by a union agreement whose retirement benefits were bargained for in good faith by the employees union and the employer. Nonresident alien employees that have not received U.S. source wages, salaries or other personal services compensation from the employer. Compensation Compensation generally includes pay an employee receives for a year s work. Employers must follow the definition of compensation included in the plan document. Forms SIMPLE and 5305-SIMPLE define compensation as the sum of wages, tips, and other compensation from the employer subject to federal income tax withholding [as described in 6051(a)(3)]. This includes amounts paid for domestic service in a private home, local college club, or local chapter of a college fraternity or sorority, and the employee s salary reduction contributions made under this plan. If applicable, elective deferrals under a 401(k) plan, a SARSEP, or a 403(b) annuity contract and compensation deferred under a 457 plan required to be reported by the employer on Form W-2 [as described in 6051(a)(8)] are also included. For SIMPLE contributions for self-employed individuals, compensation means the net earnings from self-employment determined under 1402(a), without regard to 1402(c)(6), prior to subtracting any contributions made pursuant to this plan on behalf of the individual. Your net earnings from self-employment are the amount you report on Line 4 of Short Schedule SE or Line 6 of Long Schedule SE (Form 1040) before you subtract any SIMPLE IRA plan contributions you make for yourself NATP

31 SIMPLE IRA Plans NOTE: The calculation of net earnings from self-employment for a SIMPLE plan is slightly different than the calculation for a SEP. Contributions NOTE: A SIMPLE IRA must be set up for an employee before the first date a contribution is required to be deposited into the employee s IRA. Employees can make salary reduction contributions in any amount to a SIMPLE plan up to the legal limits. The maximum amount that an employee can contribute is the lesser of the employee s compensation or $12,500 per year for Employees age 50 or over at the end of the year are allowed to make catch-up contributions. The additional catch-up contribution limit is $3,000 for However, the total of the regular and catch-up contributions cannot exceed the employee s compensation. NOTE: An employee s salary reduction contributions to a SIMPLE plan count towards the overall annual limit for contributions to other qualified plans. Employees can change their contribution levels during the plan s election period. The election period must be at least 60 days long and employees must receive prior notice about an upcoming election opportunity. SIMPLE plans that have already been established must have an annual election period that extends from November 2 to December 31. The dates of the annual election period are modified if the 60-day period falls before the first day an employee becomes eligible to participate in the SIMPLE plan. Also, a plan can have more election periods each year in addition to the 60-day election period. Employers must make matching contributions. They have two options to satisfy this requirement. Matching contribution. Nonelective contribution NATP 21

32 Under the matching contribution formula, an employer must match each employee s salary reduction contributions on a dollar-for-dollar basis up to 3% of the employee s compensation. An employer can choose a matching contribution less than 3%, however, the matching contribution must be at least 1%. The employer must notify the employees within a reasonable time before the 60-day election period for the calendar year. The employer cannot choose a percentage less than 3% for more than two years during the five year period that ends with and includes the year for which the choice is effective. Employer contributions for a self-employed individual must be the same type and rate as the contributions made for common-law employees. A self-employed individual must either: Match salary reduction contributions dollar-for-dollar up to 3% of net earnings from self-employment. Make a nonelective contribution of 2% of net earnings from self-employment that do not exceed $265,000 for Example Tipper is self-employed and had Schedule C income of $40,000. Line 4 of Schedule SE is $36,940 ($40,000 x 92.35%). Tipper chose to contribute 10% of her earnings into her SIMPLE IRA. Additionally, Tipper had an employee, Logan, who earned $25,000 and elected to defer 5% of his salary into his SIMPLE IRA. Tipper is required to make a 3% matching contribution. Tipper s total contributions for Logan and herself are as follows: Tipper: Salary reduction contributions ($40,000 x 10%) $4,000 Employer matching contribution ($36,940 x 3%) 1,108 Total $5,108 Logan: Salary reduction contributions ($25,000 x 5%) $1,250 Employer matching contribution ($25,000 x 3%) 750 Total $2,000 Instead of matching contributions, an employer can choose to make nonelective contributions of 2% of compensation on behalf of each eligible employee that has at least $5,000 (or a lower amount the employer selected) of compensation for the year. If an employer chooses nonelective contributions, they must make nonelective contributions whether or not the employee chooses to make salary reduction contributions. The maximum amount of employee compensation that is taken into account to figure the contribution is $265,000 for 2015 ($260,000 for 2014) NATP

33 SIMPLE IRA Plans Example Better Cut Lawn Service is a Schedule C business owned by Lisa with Jane as an employee. Jane earned wages of $36,000 and chose to contribute 1% to her SIMPLE IRA. Lisa s Schedule C income was $50,000 and she chooses to contribute 10% of her net earnings to a SIMPLE IRA. Lisa s net earnings for self-employment tax is $46,175 ($50,000 x 92.35%). Lisa makes the 2% nonelective contributions for herself and Jane. The total contribution for Jane is $1,080. The total contribution for Lisa is $5,924. Jane: Salary reduction contributions ($36,000 x 1%) $360 Employer matching contribution ($36,000 x 2%) 720 Total $1,080 Lisa: Salary reduction contributions ($50,000 x 10%) $5,000 Employer matching contribution ($46,175 x 2%) $ 924 Total $5,924 Employee contributions must be deposited in the financial institution serving as trustee for the plan within 30 days after the end of the month in which the amounts would otherwise have been payable to the employee in cash. The employer contributions must be made by the due date, including extensions, for filing the business s federal income tax return for the year. Employee and employer contributions are always 100% vested in a SIMPLE plan. Distributions Participants in a SIMPLE plan cannot take loans from their SIMPLE IRA. SIMPLE contributions and earnings can be withdrawn at any time. Distributions are subject to income tax in the year received. If a withdrawal is made before the participant reaches age 59½, a 10% additional tax applies. If the withdrawal occurs within two years of beginning participation, the 10% tax is increased to 25%. Similar to SEPs, a SIMPLE IRA is required to make distributions to a participant by April 1 of the year following the year the participant reaches age 70½. After the initial year, the participant must receive a distribution each year by December 31 of that year NATP 23

34 Year turning 70 1/2 (Year 1) RMD 1 Take RMD 1 in Year 1 or by April 1 of Year 2 Following Year (Year 2) RMD 2 Take RMD 2 in Year 2 by December 31 Take RMD 1 also by April 1 in Year 2 if not taken in Year 1 Rollover SIMPLE IRA contributions and earnings can be rolled over tax-free from one SIMPLE IRA to another. A tax-free rollover may also be made from a SIMPLE IRA to another type of IRA (for example, traditional IRA) or qualified plan after two years of beginning participation in the original plan. SIMPLE IRA Traditional IRA after 2 years SIMPLE IRA Qualified Retirement Plan after 2 years Communication If an employer adopts a SIMPLE plan, the employer must notify each employee of the following information before the beginning of each election period. The employee s opportunity to make or change a salary reduction choice under the SIMPLE plan. The employer s decision to make either matching contributions or nonelective contributions. A summary description provided by the financial institution. Written notice that the employee s balance can be transferred without cost or penalty if they use a designated financial institution NATP

35 401(k) Plans The summary description is a plain-language explanation of the plan and is comprehensive enough to inform participants of their rights and responsibilities under the plan. It also informs participants about the features of the plan. A summary description must include: The names and addresses of the employer and trustee. A description of the requirements for eligibility to participate. The benefits provided. The time and method for making salary elections. The procedure for and effects of withdrawals and rollovers. An employer can satisfy the summary description requirement by providing employees with the most recent copy of Forms 5304-SIMPLE or 5305-SIMPLE along with the financial institution s procedures for withdrawals and transfers. Terminating the Plan To terminate a SIMPLE plan, an employer notifies the financial institution that they are not going to make a contribution for the next calendar year and the contract or agreement is going to be terminated. An employer must also notify their employees that the SIMPLE plan is being discontinued. An employer does not need to notify the IRS that the SIMPLE plan has been terminated. 401(k) Plans Section 401(k) plans have become a widely accepted retirement savings vehicle for small businesses. It is estimated that over 50 million American workers have employer-based 401(k) plans with total assets over $3 trillion. Employees can choose to defer a portion of their salary in which deferrals are accounted separately for each employee. Deferrals can be made on a pre-tax or after-tax basis if the plan allows. Many 401(k) plans provide for employer matching or other contributions. Generally, employer contributions and pre-tax deferrals (plus earnings) are not taxed until distributed. Section 401(k) plans can vary significantly in their complexity and design. Many financial institutions and other organizations offer prototype 401(k) plans to ease the administrative burden of establishing and maintaining these plans for employers NATP 25

36 The following are advantages of a 401(k) plan. A well-designed 401(k) plan can help attract and keep talented employees. It allows participants to decide how much to contribute to their accounts. Employer matching contributions are deductible. A 401(k) plan benefits a mix of rank-and-file employees, owners and managers. Contributions and earnings generally are not taxed until they are distributed. A 401(k) plan can allow participants to take their benefits with them when they leave. Disadvantages of a 401(k) plan include: The plan must meet certain requirements to maintain their tax-favored status and the administrative functions of complying with the requirements can be costly. Form 5500 is required to be filed annually. Fiduciaries of a 401(k) plan have significant liability. An employer can be committed to making a contribution even if profits are low. Generally, the plan must comply with top-heavy rules, which can require a minimum contribution. Types of 401(k) Plans There are three basic types of 401(k) plans a traditional 401(k) plan, a safe harbor 401(k) plan and a SIMPLE 401(k) plan. In all of these plans, participants can make contributions through salary reductions. Traditional 401(k) Plans A traditional 401(k) offers the maximum flexibility among the three types of plans. Employers have discretion over whether to make contributions for all participants, to match employees deferrals, to do both or to do neither. The contributions can be subject to a vesting schedule. Annual nondiscrimination testing is required to ensure that benefits for rank-and-file employees are proportional to benefits for owners/managers NATP

37 401(k) Plans Safe Harbor 401(k) Plans A safe harbor 401(k) plan is intended to encourage plan participation among the rank-andfile employees and to ease administrative burden by eliminating the nondiscrimination tests ordinarily applied to a traditional 401(k) plan. This plan is ideal for businesses with highly compensated employees whose contributions would be limited in a traditional 401(k) plan. A safe harbor 401(k) plan allows employees to contribute a percentage of their salary each paycheck and requires employer contributions. In a safe harbor 401(k) plan, employer contributions are mandatory and always 100% vested. SIMPLE 401(k) Plans A SIMPLE 401(k) plan is technically a 401(k) plan, but has more characteristics of a SIMPLE plan than a 401(k). In order to establish a SIMPLE 401(k) plan, the employer: Must have 100 or fewer employees. Cannot have any other retirement plan. Needs to annually file Form Under a SIMPLE 401(k) plan, an employee can elect to defer compensation. But unlike a regular 401(k) plan and similar to a SIMPLE plan, the employer must make either: A matching contribution up to 3% of each employee s pay. A non-elective contribution of 2% of each eligible employee s pay. The amount of allowable deferrals is the same as a SIMPLE plan. Employees can defer $12,500 and an additional $3,000 if over age 50. The main differences between a SIMPLE plan and a SIMPLE 401(k) plans is that the SIMPLE 401(k) plan can offer loans to participants and must file Form Establishing the Plan To deduct a contribution for a tax year, the plan generally must be adopted by the last day of the tax year. Thus, for calendar year employers, a traditional 401(k) plan must be established by December 31 in order to take a deduction for that tax year NATP 27