Yes—There is Still Time for a Safe Harbor Plan for 2022!

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare.  We bring Case of the Week to you to highlight the most relevant topics affecting your business.  

A recent call with a financial advisor from Illinois is representative of a common inquiry related to safe harbor plans. The advisor asked: “My client, who has a traditional 401(k) plan, would like to change to a safe harbor plan for 2022. Is it too late to do that?”

Highlights of the Discussion

It still may be possible for your client to have safe harbor plan with a nonelective contribution for 2022. December 1st is a key deadline—but there is also another option if she misses that deadline. The Setting Every Community Up for Retirement Enhancement (SECURE) Act of 2019 relaxed the deadline for amending a 401(k) plan to add a safe harbor nonelective contribution.  

Under Section 103 of the SECURE Act, plan sponsors may amend their plans to add a three percent (3%) safe harbor nonelective contribution at any time before the 30th day before the close of the plan year. The SECURE Act also did away with the mandatory participant notice requirement for this type of amendment.  

Furthermore, amendments after that deadline would be allowed if the amendment provides 

1) a nonelective contribution of at least four percent (4%) of compensation for all eligible employees for that plan year,  

and  

2) the plan is amended no later than the close of following plan year. 

(See Issue Snapshot - Notice Requirement for a Safe Harbor 401(k) or 401(m) Plan) 

EXAMPLE: 

Safety First, Inc., maintains a calendar-year 401(k) plan. Based on the plan’s preliminary actual deferral percentage (ADP) test (which doesn’t look good), Safety First decides a safe harbor plan is a good idea for 2022. It’s too late to add a safe harbor matching contribution for 2022. However, the business could add a 3% safe harbor nonelective contribution for the 2022 plan year (without prior participant notice) as long as Safety First amends its plan document prior to December 1, 2022. While Safety First still could add a nonelective safe harbor contribution to the plan for 2022 after that date, the minimum contribution would have to be at least 4% of compensation, and the company would have to amend its plan document no later than December 31, 2023.  

Conclusion

Thanks to the SECURE Act, 401(k) plan sponsors have more flexibility to amend their plans for “safe harbor” status. Plan sponsors who are failing their actual deferral percentage (ADP) tests for the year may find this type of plan amendment attractive as a correction measure