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Volume XI, Number 268

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Good News for Retirement Plan Sponsors: IRS Issues Updated Guidance Enhancing Plan Correction Programs

On July 15, 2021, the Internal Revenue Service (“IRS”) updated its Employee Plans Compliance Resolution System (“EPCRS”) by issuing Revenue Procedure 2021-30 (PDF). The EPCRS changes and revisions, which generally became effective on July 16, 2021, are beneficial to plan sponsors, participants and the retirement plan community.

The IRS has long provided a basic structure for the EPCRS and its underlying programs consisting of: (a) the Self Correction Program (“SCP”) – which allows plan sponsors to self-correct certain failures using pre-approved methods without making a submission to the IRS; (b) the Voluntary Compliance Program (“VCP”) – which requires a submission to the IRS; and (c) the Audit Closing Agreement Program (“Audit CAP”). When the IRS periodically publishes an update to EPCRS, such as Rev. Proc. 2021-30, the revisions are of interest to plan sponsors as they are mostly improvements and expansion of the programs to reflect changes in existing practices.

Noteworthy changes made by the IRS in Rev. Proc. 2021-30 include the following:

I. New Exceptions to Recoupment of Overpayments

The sponsor of a qualified plan that pays participants excess benefits to which they are not entitled (“overpayments”) is generally required to make the plan whole by either recovering the overpayments from participants or making corrective contributions to the plan. While EPCRS provides limited exceptions or exemptions to the requirement of recovering overpayments, the updated EPCRS introduces two new exceptions for defined benefit plans:

  • Funding exception correction method. Under the funding exception correction method, if the plan’s certified or presumed adjusted funding target attainment percentage (“AFTAP”) determined under Code Section 436 at the date of correction is equal to at least 100% (or, in the case of a multiemployer plan, the plan is not in critical, critical and declining, or endangered status), no action is required to recover excess amounts that have already been paid to participants.

  • Contribution credit correction method. Under the contribution correction method, the amount of overpayments may be reduced (but not below zero) by a “contribution credit.” The contribution credit equals: (A) the cumulative increase in the plan’s minimum funding requirements attributable to the overpayments beginning with (1) the plan year for which the overpayments are taken into account for funding purposes, through (2) the end of the plan year preceding the plan year for which the corrected benefit payment amount is taken into account for funding purposes; and (B) certain additional contributions in excess of minimum funding requirements paid to the plan after the first of the overpayments was made. If the amount of the overpayments is reduced to zero after the contribution credit is applied, no action is required to recover excess amounts already paid to participants. If, however, a net overpayment remains after the application of the contribution credit, the plan sponsor must take further action to reimburse the plan for the remainder of the overpayments.

II. Increased Small Overpayments and Excess Amount De Minimis Threshold

EPCRS does not require correction of small excess contributions or recovery of small overpayments. EPCRS raised the maximum amount of such small overpayments from $100 to $250.

III. Elimination of Anonymous VCP Submissions and the Creation of an Anonymous VCP Pre-Submission Conference

Effective January 1, 2022, instead of requiring a plan span sponsor that prefers to remain anonymous to make a submission regarding proposed corrections, the IRS made provisions for anonymous pre-submission conferences. This change allows plan sponsors to anonymously seek preliminary guidance on the issues underlying the proposed correction(s) without having to complete a full submission.

IV. SCP Correction Period for Significant Failures Extended by a Year

For failures where the plan is not operated in accordance with its terms (“operational failures”), the IRS identifies two classes of operational failures – “significant” and “insignificant.” Under EPCRS, sponsors can now use SCP to correct significant operational failures occurring in the three years (extended from two years) prior to the year in which the failure occurred, provided the other requirements of SCP are satisfied. Insignificant failures can still be self-corrected at any time.

V. Extension of Safe Harbor for Automatic Enrollment Failures

The IRS previously provided a safe harbor for correction of missed deferral failures for employees subject to automatic enrollment features in Section 401(k) or 403(b) plans. Under this safe harbor, which was set to sunset on December 31, 2020, no qualified non-elective contribution was required if certain requirements were met. EPCRS extends the sunset of the safe harbor correction method to December 31, 2023.

VI. Expansion of Ability under SCP to Correct Operational Errors by Retroactive Plan Amendment

One possible correction for an operational failure is to retroactively amend the plan so that its terms align with the way the plan was operated. Correction by plan amendment is a remedy available under VCP, and under SCP in limited circumstances. Prior to Rev. Proc. 2021-30, one of the requirements for retroactive correction by plan amendment under SCP was that the plan amendment had to result in an increased benefit, right, or feature, and that increase had to apply to all participants eligible to participate under the plan. EPCRS eliminates that requirement, thus expanding the ability to self-correct under SCP through retroactive plan amendments.

Additional changes may be forthcoming as the IRS also requested comments on Revenue Procedure 2021-30.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 210
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About this Author

Senior Counsel

Avi Bernstein brings more than 25 years of experience to bear when working with public and private companies and nonprofit organizations on their employee benefits and executive compensation issues. He helps his clients design and administer a variety of plans—including qualified and nonqualified retirement plans, non-qualified deferred compensation plans, medical and disability plans, severance plans, incentive and equity compensation plans, cafeteria plans, health reimbursement account plans, and flexible spending account plans—while minimizing legal risks and...

212-351-4797
Member of the Firm

TZVIA FEIERTAG is a Member of the Firm in the Employee Benefits & Executive Compensation practice, in the Newark office of Epstein Becker Green. She has worked exclusively in the area of employee benefits for more than 16 years, advising employers of all sizes, including Fortune 500 companies, other public and private companies, and start-ups, on all aspects of ERISA compliance and the day-to-day operation of employee benefit plans.

Specifically, Ms. Feiertag’s experience includes:

  • ...

973-639-8270
Gretchen Harders, epstein becker green, new york, Patient Protection Affordable
Member

GRETCHEN HARDERS is a Member of the Firm in the Employee Benefits practice, in the firm's New York office.

Ms. Harders' practice focuses on all aspects of executive compensation and employee benefits law. Ms. Harders counsels a broad range of clients on executive compensation and employee benefit issues, tax-qualified and non-qualified plans, 401(k) plans, the Patient Protection and Affordable Care Act, deferred compensation, executive incentive compensation plans, executive employment and severance agreements, Section 409A...

212-351-3784
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