Month: July 2020

The mathematics of the annual testing for compliance with the rules requiring qualified plans to demonstrate nondiscrimination are spread though several sections of the tax law, rendering the calculations needed somewhat opaque. This note attempts to summarize some of the calculations so that plan sponsors might feel better empowered to assess the effect on compliance of both current and anticipated plan features.

Among the many compliance tests that qualified plans must meet in order to retain their qualified status are nondiscrimination tests which assure that the benefits of tax-deferred compensation do not accrue disproportionately to highly compensated employees (HCEs). There are several tests within this regime, but two of the more important tests, for our purposes, are the annual Actual Deferred Percentage (ADP) and Actual Contribution Percentage (ACP) calculations. While ADP considers only employee deferrals, ACP also includes employer contributions. Plan sponsors of non-exempt plans must conduct both tests, whether or not their results match.

The purpose of 401(k) nondiscrimination tests is to ensure that all employees are benefitting from plan participation. Otherwise, those who own the company and Highly Compensated Employees (HCEs) would stand to benefit disproportionately from being able to defer their income for tax purposes over Non-Highly Compensated Employees (NHCEs).  Because, for example, a plan to increase the share of compensation that only HCEs may defer could cause a non-exempt plan to fail one or more nondiscrimination tests, thereby exposing the plan sponsor to penalties and possible loss of the qualified status of the plan, it is worth considering the calculations used in the ADP and ACP tests and how those calculations might be affected by adding the feature of increased deferral rights for HCEs.

For purposes of this testing, an HCE is an individual who either:

• Owned more than 5% of the interest in the business at any time during the year or the preceding year, regardless of how much compensation that person earned or received, or
• For the preceding year, received compensation from the business of more than$125,000 (if the preceding year is 2019 and $130,000 if the preceding year is 2020), and, if the employer so chooses, was in the top 20% of employees when ranked by compensation.

One of the qualifications a plan must meet to be or remain a “qualified plan” within the meaning of Code Section 401 is that it not discriminate in favor of highly compensated employees. This condition is described at §401(a)(4):[[

(4) if the contributions or benefits provided under the plan do not discriminate in favor of highly compensated employees (within the meaning of section 414(q)). For purposes of this paragraph, there shall be excluded from consideration employees described in section 410(b)(3)(A) and (C) [providing definitions for, respectively, the “year of service” and “hours of service” generally allowed as conditions for vesting]

Actual Deferral Percentage – 26 C.F.R. §1.401(k) -2

The ADP test calls for employers to compare the average annual deferral rates of HCEs and NHCEs. This test excludes employer matching and measures only employee deferrals. See, Reg. §1.401(k)-2. The ADP test also measures employee compensation only in cash and stocks. Health insurance and other fringe benefits are excluded. The employer (usually the plan administrator handles this tax, but the employer is responsible). This equation is used, separately, for both HCEs and NHCEs:

Where

n= total number of either HCEs or NHCEs

D= total employee deferrals, both pretax and Roth, for each employee

C=each employee’s total annual compensation

 

Actual Contribution Percentage – 26 C.F.R. §1.401(m) -2

The ACP test follows a similar patter but uses different variables. This test also measures HCE and NHCE results separately:

Where

n=total number of either HCE or NHCEs

T=total of each employee’s deferrals, after tax contributions, and employer matching

C=each employee’s total annual compensation

 

The largest difference between the two is that the ADP test compares relative deferrals among HCEs and NHCEs but the ACP test compares the contributions of both groups that include employer matching.

The employer then compares the test outcomes to this table:

A plan must pass both tests or the employer must take prescribed corrective action. That corrective action is not within the scope of this memo.

Using these equations, an employer can calculate its plan’s compliance at given HCE deferral rates and evaluate the effect on compliance with the nondiscrimination rules.

To be sure, the compliance tests for qualified plans are numerous, and these notes do not address the many nuances and exceptions to nondiscrimination testing. Rather, I seek here to pull back the curtain on but two often baffling, and always important, tests for qualified plans.

These notes discuss general principles only and are not intended as tax or legal advice.  The reader is encouraged to discuss his or her specific circumstances with a qualified practitioner before taking any action.

The mathematics of the annual testing for compliance with the rules requiring qualified plans to demonstrate nondiscrimination are spread though several sections of the tax law, rendering the calculations needed somewhat opaque. This note attempts to summarize some of the calculations so that plan sponsors might feel better empowered to assess the effect on compliance of both current and anticipated plan features.

Among the many compliance tests that qualified plans must meet in order to retain their qualified status are nondiscrimination tests which assure that the benefits of tax-deferred compensation do not accrue disproportionately to highly compensated employees (HCEs). There are several tests within this regime, but two of the more important tests, for our purposes, are the annual Actual Deferred Percentage (ADP) and Actual Contribution Percentage (ACP) calculations. While ADP considers only employee deferrals, ACP also includes employer contributions. Plan sponsors of non-exempt plans must conduct both tests, whether or not their results match.

The purpose of 401(k) nondiscrimination tests is to ensure that all employees are benefitting from plan participation. Otherwise, those who own the company and Highly Compensated Employees (HCEs) would stand to benefit disproportionately from being able to defer their income for tax purposes over Non-Highly Compensated Employees (NHCEs).  Because, for example, a plan to increase the share of compensation that only HCEs may defer could cause a non-exempt plan to fail one or more nondiscrimination tests, thereby exposing the plan sponsor to penalties and possible loss of the qualified status of the plan, it is worth considering the calculations used in the ADP and ACP tests and how those calculations might be affected by adding the feature of increased deferral rights for HCEs.

For purposes of this testing, an HCE is an individual who either:

• Owned more than 5% of the interest in the business at any time during the year or the preceding year, regardless of how much compensation that person earned or received, or
• For the preceding year, received compensation from the business of more than$125,000 (if the preceding year is 2019 and $130,000 if the preceding year is 2020), and, if the employer so chooses, was in the top 20% of employees when ranked by compensation.

One of the qualifications a plan must meet to be or remain a “qualified plan” within the meaning of Code Section 401 is that it not discriminates in favor of highly compensated employees. This condition is described at §401(a)(4):[[

(4) if the contributions or benefits provided under the plan do not discriminate in favor of highly compensated employees (within the meaning of section 414(q)). For purposes of this paragraph, there shall be excluded from consideration employees described in section 410(b)(3)(A) and (C) [providing definitions for, respectively, the “year of service” and “hours of service” generally allowed as conditions for vesting]

Actual Deferral Percentage – 26 C.F.R. §1.401(k) -2

The ADP test calls for employers to compare the average annual deferral rates of HCEs and NHCEs. This test excludes employer matching and measures only employee deferrals. See, Reg. §1.401(k)-2. The ADP test also measures employee compensation only in cash and stocks. Health insurance and other fringe benefits are excluded. The employer (usually the plan administrator handles this tax, but the employer is responsible). This equation is used, separately, for both HCEs and NHCEs:

Where

n= total number of either HCEs or NHCEs
D= total employee deferrals, both pretax and Roth, for each employee
C=each employee’s total annual compensation

Actual Contribution Percentage – 26 C.F.R. §1.401(m) -2

The ACP test follows a similar pattern but uses different variables. This test also measures HCE and NHCE results separately:

Where

n=total number of either HCE or NHCEs
T=total of each employee’s deferrals, after tax contributions, and employer matching
C=each employee’s total annual compensation

The largest difference between the two is that the ADP test compares relative deferrals among HCEs and NHCEs but the ACP test compares the contributions of both groups that include employer matching.

The employer then compares the test outcomes to this table:

A plan must pass both tests or the employer must take prescribed corrective action. That corrective action is not within the scope of this memo.

Using these equations, an employer can calculate its plan’s compliance at given HCE deferral rates and evaluate the effect on compliance with the nondiscrimination rules.

To be sure, the compliance tests for qualified plans are numerous, and these notes do not address the many nuances and exceptions to nondiscrimination testing. Rather, I seek here to pull back the curtain on but two often baffling, and always important, tests for qualified plans.

These notes discuss general principles only and are not intended as tax or legal advice. The reader is encouraged to discuss his or her specific circumstances with a qualified practitioner before taking any action.

On July 6, 2020, the Department of Revenue Service (“DRS”) released initial guidance, in a Q&A format, addressing some of the issues concerning the impact of the federal Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136, on interpretation of Connecticut tax law. These notes provide a summary of some of the more important issues reviewed in the guidance.

Individual Income Tax

DRS observes that, because calculation of Connecticut state income tax begins with the individual’s federal adjusted gross income (“AGI”), which is then subjected to certain state law modifications to arrive at Connecticut adjusted gross income, and the federal economic impact payments are excluded from federal adjusted gross income, they are, therefore, not included in Connecticut adjusted gross income and not subject to Connecticut income tax.

Coronavirus Related Distributions from Qualified Retirement Accounts

Likewise, Connecticut law includes no modifications to include coronavirus-related distributions from qualified retirement accounts. Hence, insofar as federal law includes or excludes such distributions in or from income, Connecticut tax law will do the same.

Coronavirus-related distributions from a qualified retirement account, as allowed under the CARES Act, are, however, subject to the statutory 6.99% withholding unless the recipient submits a Form CT-W4P to the payor requesting that no or a lesser amount of Connecticut income tax be withheld.

Inclusion in Income of Loans Forgiven in Business or Individual Income Tax

Loans forgiven under the CARES Act Paycheck Protection Program are excluded from AGI under federal law. Because Connecticut law includes no modification of the federal treatment of AGI for state tax purposes with regard to PPP loan forgiveness, such forgiven loans are not included in Connecticut AGI for either individual income tax or corporation business tax purposes.

State Law Effects of CARES Act NOL Provisions

Corporations

Connecticut corporation business taxes are not affected by the federal carryforward and carryback rules.

Individuals

The carryback of federal net operating losses that affect an individual’s state tax liability must be done consistent with the 2014 Connecticut Superior Court opinion of Adams v. Sullivan. In that case, the court held that, because Connecticut law makes no provision for individual taxpayers to deduct federal Net Operating Losses (“NOLs”) from Connecticut AGI, those NOLs may offset Connecticut AGI for a given year only to the extent the taxpayer used those NOLs to offset federal AGI for that year. These NOLs are also subject to C.G.S. §12-727(b) (generally requiring that taxpayers filing a federal amended tax return also file with DRS a corresponding Connecticut tax return).

Note that individuals with a Connecticut source loss but with no corresponding federal loss are not affected by the NOL treatment changes of the CARES Act. Such individuals are still required to comply with Connecticut Regulation §12-711(b)(6).

Business Loss Limitation

The Tax Cuts and Jobs Act (P.L. 115-97) created a new Section l in Code Section 461. This section, among other things, disallows business losses of noncorporate taxpayers in excess of $250,000 ($500,000 for joint filers).  This threshold is subject to indexing for inflation.  Any amount disallowed is carried forward to the next tax year. This provision sunsets on December 31, 2025.

The CARES Act, however, repeals the excess business loss limitation for tax years 2018, 2019, and 2020. The Act also provides two additional important revisions to the law:

• NOLs incurred in a year beginning after December 31, 2017 and before January 1, 2021 can be carried back for up to five years preceding the year in which the loss was incurred and
• The CARES Act suspended the rule limiting NOL utilization to 80% of taxable income for tax years beginning before January 1, 2021

Because Connecticut law provides no specific statutory modifications to the excess business loss limitation, that calculation is applied to federal adjusted gross income calculations and thence to Connecticut AGI calculations under applicable state law.

The Department of Revenue Services is likely to update its guidance on this issue as more information becomes available.

These notes are intended only to review general principles and are not intended as legal or tax advice. The reader is encouraged to discuss his or her specific circumstances with a qualified professional before taking any action.