The Pension Protection Act of 2006 (the “PPA”) added automatic contribution arrangements to the Internal Revenue Code (the “Code”) for use in Code section 401(k), 457 and 403(b) plans. The Internal Revenue Service (the “IRS”) recently issued proposed regulations regarding certain aspects of these automatic contribution arrangements. The proposed regulations are effective for plan years beginning on or after January 1, 2008, and plan sponsors may rely on them until final regulations are issued.

The two automatic contribution arrangements that the proposed regulations cover are “qualified automatic contribution arrangements” (“QACAs”) and “eligible automatic contribution arrangements” (“EACAs”). This article will focus on the main issues addressed by the proposed regulations as they relate to QACAs and EACAs.

Qualified Automatic Contribution Arrangements

If a plan qualifies as a QACA, it will be considered a safe harbor plan, and will be exempt from certain non-discrimination (e.g., ADP and ACP) and top-heavy testing requirements to which it normally would be subject on an annual basis. In order to be a QACA, a plan must satisfy the automatic contributions, employer contributions, notice and plan year requirements.

Automatic Contributions

A QACA must provide that all employees who are eligible to participate in the plan will be automatically enrolled in the plan. The only exception provided in the proposed regulations applies to employees who were eligible to participate in the plan on the date the QACA was implemented and who had an affirmative election in effect (and that remains in effect) either to:

• have elective contributions made on his or her behalf in a specified amount or percentage of compensation (including 0%), or
• not have elective contributions made on his or her behalf.

Employees who were eligible to participate on the date the QACA was implemented, but made an affirmative election not to have elective contributions made on their behalf, may be a difficult category of excludable employees for plan sponsors to identify. It appears from the proposed regulations that in order for an employee to be in this category, he or she must have actually filed an election with the plan administrator indicating that he or she does not want to participate in the salary deferral portion of the plan. If the plan sponsor cannot determine whether a particular employee made such an affirmative election, the plan sponsor may want to automatically enroll the employee in order to avoid the possibility of the plan’s loss of QACA status.

In addition to being automatically enrolled in the plan, an eligible employee must have a certain percentage of his or her eligible compensation deferred into the plan (unless and until he or she elects otherwise). A QACA must provide that — at a minimum — an employee will have default elective deferrals made on his or her behalf in accordance with the following schedule:

Year of Participation — Minimum Required Deferral Rate

Initial Period (defined below) — 3%

2nd Year — 4%

3rd Year — 5%

4th Year (and all following years) — 6%

The proposed regulations define the “Initial Period” as the period beginning on the date the employee first participates in the QACA and ending on the last day of the following plan year. For example, assuming the plan utilizes a calendar year plan year, the Initial Period of an employee who begins participating in the QACA on January 1, 2008 will end on December 31, 2009. As stated above, these percentages are minimums. A plan can provide that a greater percentage will be deferred. For example, a plan could provide that 4% of eligible compensation would be deferred on behalf of an eligible employee during the employee’s Initial Period. The plan could also provide that the default deferral rate would remain at 4% until the end of the “2nd Year.” The plan would have to provide, however, that the automatic deferral percentage would be at least 5% in the “3rd Year.” Please note that the maximum percentage that can be automatically contributed on behalf of an eligible employee in a QACA is 10% of his or her eligible compensation. Of course, an eligible employee can affirmatively elect to have a greater percentage contributed on his or her behalf, subject to plan and Code limits.

The minimum required deferral rate set forth in the preceding table must be uniformly applied to all eligible employees who are automatically enrolled in the QACA, except as follows:

• The percentage of automatic contributions may vary based on the number of years an eligible employee has participated in the QACA.
• The rate of elective contributions of an employee in effect immediately prior to the QACA being initiated is not required to be reduced.
• The rate of elective contributions may be limited in order to prevent the plan and/or eligible employee from exceeding any Code-imposed limitations (e.g., the Code section 402(g) limit of $15,500 for 2008).
• The default election need not be applied during the six-month period after a participant receives a hardship distribution from the plan.

Employer Contributions

The proposed regulations also provide that in order to be a QACA a plan must provide that the employer will make either non-elective or matching contributions on behalf of non-highly compensated eligible employees as follows:

• The employer can make a non-elective contribution equal to at least 3% of such employees’ eligible compensation.
• Instead, the employer can make a matching contribution on their behalf equal to at least 100% of the first 1% of eligible compensation deferred on behalf of the eligible employees and 50% of the next 5% of such compensation deferred. As a result, the maximum required matching contribution made on behalf of an eligible employee is 3.5% (which is less than the 4% that would have to be contributed on behalf of the same employee in a traditional safe harbor plan).

The proposed regulations also state that the QACA may require eligible employees to have up to 2 years of service in order to become 100% vested in employer contributions. This is another advantage over the traditional safe harbor plan, in which employer contributions must be 100% vested at all times.

Notice

Under the proposed regulations, every eligible employee (not just those who are automatically enrolled in the QACA) must receive a notice regarding the QACA. This notice must be provided to the employee within a reasonable amount of time before he or she first becomes an eligible employee and prior to the beginning of each plan year thereafter. Under the proposed regulations, the “reasonable amount of time” requirement for the initial eligibility notice is deemed satisfied if the notice is provided no earlier than 90 days prior to the date the employee becomes an eligible employee and no later than the date on which he or she becomes an eligible employee (e.g., the first day of employment for immediate eligibility plans). The “reasonable amount of time” requirement for the annual notice is deemed satisfied if it is provided no more than 90 days and no less than 30 days prior to the beginning of each subsequent plan year.

In addition to providing the information required in a traditional safe harbor plan notice, the QACA notice must also include the following information regarding an eligible employee’s rights and obligations under the QACA:

• the level of elective contributions which will be made on the employee’s behalf if the employee does make an affirmative election to defer (or not to defer) compensation to the plan;
• the employee’s right under the QACA to elect not to have elective contributions made on his or her behalf (or to elect to have such contributions made at a different amount or percentage of eligible compensation); and
• how contributions under the QACA will be invested (including how such contributions will be invested if the eligible employee does not make an affirmative investment election).

The notice must be sufficiently accurate to inform the employee of his or her rights and obligations under the QACA, and be written in a manner calculated to be understood by the average employee to whom the QACA applies. On November 15, 2007, the IRS published a sample automatic contribution notice. Plan sponsors should review the sample notice (which can be found here) and revise it as necessary to ensure that it meets the needs of their plans. Please contact us if you would like assistance preparing this required notice.

The QACA notice can be combined with the plan’s notice regarding the Qualified Default Investment Arrangement (“QDIA”), if applicable, and can be provided to eligible employees pursuant to the regulations permitting the use of electronic media to provide certain notices. However, it cannot be combined with other plan communications, such as the Summary Plan Description or a Summary of Material Modifications.

Plan Year

Under the proposed regulations, the QACA must be in effect for the entire plan year in order to be a valid QACA. As a result, the QACA must be adopted (and the related notice must be distributed) prior to the beginning of the first plan year in which it is being implemented. However, under the PPA, the plan does not have to be amended until the end of the plan year that begins in 2009 as long as the plan is operated in accordance with all the rules related to the QACA during all relevant plan years prior to the adoption of such amendment.

Eligible Automatic Contribution Arrangement

An EACA must satisfy most of the rules under the proposed regulations that apply to the QACA. This section of the article will highlight some of the similarities as well as the differences between the QACA and the EACA.

Automatic Contributions

Like a QACA, the proposed regulations provide that an EACA must provide that all employees who are eligible to participate in the plan will be automatically enrolled in the plan. It is not clear, however, whether the proposed regulations also provide the narrow exception that applies to the QACA with regard to employees who were eligible to participate in the plan on the date the EACA was implemented (see discussion above). We are hopeful that the final regulations will clarify whether or not such employees must be automatically enrolled in the EACA.

Unlike the QACA, the EACA does not have to require either that a certain minimum percentage be deferred on behalf of eligible employees (e.g., 3% in the Initial Period under a QACA) or that the default annual percentage rate will be increased until such rate reaches 6%, and there is no maximum limitation on the percentage that can be automatically contributed. Therefore, a plan sponsor may elect to automatically enroll eligible employees at 2% (or, any other rate) without any annual increase in the percentage.

Finally, the same exceptions to the uniformity requirement for the QACA apply to the EACA. Specifically:

• The percentage of automatic contributions may vary based on the number of years an eligible employee has participated in the EACA.
• The rate of elective contributions of an employee in effect immediately prior to the EACA being initiated is not required to be reduced.
• The rate of elective contributions may be limited in order to prevent the plan and/or eligible employee from exceeding any Code-imposed limitations (e.g., the Code section 402(g) limit of $15,500 for 2008).
• The default election need not be applied during the six-month period after a participant receives a hardship distribution from the plan.

Employer Contributions

Although the proposed regulations require that the plan sponsor of a QACA must make certain employer contributions to the plan on behalf of eligible employees (either a non-elective contribution or a matching contribution), the proposed regulations do not have any such requirement for plan sponsors of an EACA. The plan sponsor can decide what employer contributions, if any, it will make without the threat of losing the EACA status of the plan. In addition, any employer contributions made to the plan could be subject to the standard vesting schedule applicable to such employer contributions (e.g., a 6-year graded vesting schedule for matching contributions).

Notice

In general, the notice provisions discussed above (including, the timing, content and distribution rules) also apply to the EACA, with the following exceptions:

• the safe harbor plan information is not required to be included in the EACA notice if the EACA is not intended to be a safe harbor plan; and
• the EACA notice must include, if applicable, information regarding the employee’s right to make a permissible withdrawal and the procedures to elect such a withdrawal (the rules regarding permissible withdrawals under an EACA are discussed below).

It is not clear in the proposed regulations whether the notice must be provided to all eligible employees (regardless of whether they are subject to the automatic enrollment provisions of the EACA) or only to those eligible employees who are subject to the automatic enrollment provisions. We are hopeful that the final regulations will provide clarification regarding this issue. In the meantime, sponsors of EACAs may want to provide the notice to all eligible employees.

Plan Year

The proposed regulations are not clear with regard to whether the EACA must be in effect for an entire plan year in order to be a valid EACA. We are hopeful that the final regulations will clarify whether this requirement applies to the EACA, or only the QACA.

Qualified Default Investment Arrangement

Unlike the QACA, the EACA is required by the proposed regulations to invest default elective deferrals in a QDIA (to the extent the plan is subject to ERISA). In other words, until an eligible employee makes an affirmative investment election regarding his or her elective deferrals which were automatically contributed under the EACA, such contributions must be invested in a QDIA. Our article regarding the QDIA final regulations recently issued by the Department of Labor can be found in our November 2007 issue.

Non-Discrimination Testing

In contrast to the QACA, the EACA is subject to the non-discrimination and top-heavy testing rules. However, the EACA has special rules regarding the timeframe for distributing any excess contributions and/or excess aggregate contributions to participants when the plan fails the non-discrimination tests.

A plan that is not an automatic contribution arrangement (and which is also not a safe harbor plan) must make such distributions within 2½ months after the relevant plan year. If the required distributions are not made within this timeframe, the distributions are subject to an excise tax. The proposed regulations provide that, for an EACA, these required distributions will not be subject to the excise tax so long as they are made within 6 months after the end of the relevant plan year.

In addition, the proposed regulations state that the distribution of excess contributions and/or excess aggregate contributions from any plan (whether or not it is an EACA) will:

• not be required to include “gap period income” (earnings attributable for the period after the end of the plan year); and
• be includible in the participant’s gross income in the year in which the distribution is made from the plan (not in the plan year in which such contribution was made).

Caution: These changes are effective January 1, 2008 and will impact the distribution of excess contributions and/or excess aggregate contributions made in 2009 and subsequent years. Therefore, any distribution of excess contributions and/or excess aggregate contributions in 2008 which relate to the 2007 plan year are not eligible for treatment under the new rules set forth in this section of the article.

Permissible Withdrawals

The proposed regulations provide that an EACA may, but is not required to, permit an eligible employee who has had default elective deferrals made on his or her behalf to elect to make a withdrawal (without spousal consent) of such default elective deferrals within 90 days after the date the first default elective deferral was made on his or her behalf. The employee is required to withdraw all default elective deferrals (adjusted for any gains or losses) made on his or her behalf, not just a portion of such deferrals. In addition, any matching contributions made with respect to the withdrawn default elective deferrals must be forfeited. Although the proposed regulations do not establish a timeframe for making the distribution and related forfeiture (if applicable), they should be made as soon as administratively feasible after the withdrawal request is made.

The amount of the withdrawal will be includible in the eligible employee’s gross income for the taxable year in which the withdrawal is made. Any portion of the default elective deferrals being withdrawn which are Roth contributions will not be includible in the eligible employee’s gross income when distributed. For example, a participant becomes eligible to participate in an EACA on November 1, 2008. Her employer makes non-Roth default elective deferrals on her behalf in November and December. In January 2009, she makes a request for a permissive withdrawal. The withdrawal will be includible in her taxable income for 2009 (not 2008) and will be reported on the Form 1099–R issued to her in January 2010. (The IRS has not yet issued the code that will be used to report this distribution on the Form 1099–R.)

Although the distribution is not subject to the 10% early withdrawal penalty tax or the mandatory federal and state withholding requirements, it may be reduced for any fees related to the withdrawal request. However, the plan cannot charge a fee for this type of distribution that is different than the fees it would charge for other types of distributions.

Other Automatic Contribution Arrangements

Finally, we want to point out that automatic contribution arrangements, including such arrangements in existence prior to January 1, 2008, that are not intended to be either a QACA or an EACA are not subject to most of the rules set forth in the proposed regulations. However, if such an arrangement is converted to a QACA or an EACA, then it would become subject to the proposed regulations from that point forward.

There is one notable exception to the above exemption from the rules. Specifically, the PPA provides that if an automatic contribution arrangement provides notice to eligible employees regarding their rights and responsibilities under the arrangement, then ERISA will preempt state law with regard to the arrangement. Therefore, it a plan sponsor of an automatic contribution arrangement wants to benefit from the PPA’s provisions for ERISA preemption of state law, it is required to provide a notice to eligible employees similar to the notice provided by the sponsor of a QACA or an EACA.

Conclusion

The proposed regulations provide much-needed guidance regarding QACAs and EACAs. However, not all issues have been addressed. We are hopeful that the IRS will provide further guidance and clarification of the rules related to these arrangements in the final regulations. Until then, plan sponsors may rely on the rules and guidelines set forth in the proposed regulations. Please feel free to contact us if you have any questions regarding the proposed regulations or the information in this article.