Top 10 Areas of Focus in IRS Investigations of Retirement Plans

July 15, 2019

The Internal Revenue Service (IRS) has primary jurisdiction over the qualified status of retirement plans, and this jurisdiction includes examining plans. At any point an IRS agent may contact a plan sponsor that its plan has been selected for audit. Audits are never pleasant, but to minimize the pain, a plan sponsor may consider a compliance self-review to ensure that the plan is operating correctly, its plan documents comport with plan operation, and plan records are complete and organized before the IRS comes knocking. Here are the top 10 issues of IRS focus in its audit of qualified plans.[1]

1. Eligibility, Participation, and Coverage

Section 410 of the Internal Revenue Code (Code) sets forth the minimum participation standards qualified plans must meet. In general, a qualified plan may not require an employee to complete a period of service extending beyond the later of one year of service or attainment of age 21 in order to participate in the plan. Further, an eligible employee must begin participation in the plan by the earlier of the first day of the plan year after meeting the age and service requirements or six months after meeting the requirements. A plan sponsor must provide for the calculation of service under one of the methods set forth in the Code and regulations, and must include under its plan service an employee has with all members of its group of related companies, i.e., its controlled group or affiliated service group. (We have observed that counting service with all members of a group of related employers is not always easy, since the entities may have different human resources systems that do not capture outside service. Plan sponsors may have to devise a manual method for counting this service.) A plan sponsor must keep track of service for an employee who terminates employment before becoming eligible under the plan, as it will have to count this service towards eligibility if the employee returns before the later of five years or a period equal to the number of years the employee had before he or she left.

A qualified plan must meet minimum coverage requirements under 410(b) of the Code. These requirements are met if (i) the plan benefits at least 70% of employees who are not highly compensated, (ii) the plan benefits a percentage of employees who are not highly compensated, which is at least 70% of the percentage of highly compensated employees who benefit under the plan, or (iii) the plan meets an average benefit percentage test. While a plan sponsor is free to exclude groups of employees under its plan, all employees (except for a few specific groups) within the related group of companies are included in testing for compliance with the minimum coverage requirements, so a plan sponsor must carefully consider which groups it will exclude.

2. Vesting

Section 411 of the Code sets forth the minimum vesting standards qualified plans must meet. Among other things, a participant’s right to a normal retirement benefit must be non-forfeitable upon his or her attainment of normal retirement age (if the participant attains such age while employed with the employer sponsoring the plan), and employer contributions must vest at least as quickly as they would under one of several specific vesting schedules. A plan sponsor must provide for the calculation of service under one of the methods set forth in the Code and regulations (i.e., the hours counting or elapsed time method), and must include under its plan service an employee has with all members of its group of related companies. A plan sponsor must keep track of service for a non-vested or partially-vested employee who terminates employment, as it will have to count this service towards vesting if the employee returns before the later of five years or a period equal to the number of years the employee had before he or she left.

A provision under Section 411 that may become problematic and challenging to administer is Section 411(a)(10), which sets forth requirements that must be met when a plan’s vesting schedule is changed. A change can occur when a plan sponsor specifically amends the vesting schedule, when two plans are merged and only the surviving plan’s vesting schedule is used, and when assets from one plan are transferred to another plan with a different vesting schedule. A plan will not comply with Section 411(a)(10) unless the vested percentage each participant had as of the date of the change is preserved, and each participant with at least three years of service as of the change may elect to apply the greater of the two vesting schedules to his benefit. These rules apply to both “old” and “new” money, that is, they apply to benefits accrued before the vesting change and to contributions made after the change.

3. Discrimination

A qualified plan must not discriminate in favor of highly compensated employees, defined under Section 414(q) of the Code, with respect to benefit amounts. A qualified plan also must not discriminate in favor of highly compensated employees regarding the availability of its benefits, rights, and features (such as the plan’s death and disability benefits, the plan’s loan provisions, and rights such as the right to direct investments and to a particular form of investment under a defined contribution plan). Most plan sponsors must perform some form of regular testing to ensure that this is the case. Employees in all members of a plan sponsor’s group of related companies must be included in much of this testing. We have seen, among other failures: the failure to use a consistent definition of highly compensated employee among all related employers; the failure to identify and test all plan benefits, rights, and features; and the failure to include employees of all related employers in testing where required.

4. Top-Heavy Requirements

A plan is top-heavy in a plan year under Section 416 of the Code if (1) with respect to a defined benefit plan, the present value of the accrued benefits under the plan for key employees exceeds 60% of the present value of accrued benefits under the plan for all employees, and (2) with respect to a defined contribution plan, the aggregate of the accounts of key employees under the plan exceeds 60% of the aggregate of the accounts of all employees under the plan. All plans of the employer and its related companies in which a key employee participates, and all other plans that allow any such plans to meet the coverage rules under Section 410 of the Code or the nondiscrimination tests under Section 401(a)(4) of the Code are aggregated to determine top-heaviness. A top-heavy plan must provide for non-key employees a minimum benefit and accelerated vesting (unless the plan’s existing vesting schedule is better than the required three-year cliff or six-year graded vesting schedule under the Code).

A plan consisting solely of a cash or deferred arrangement under Section 401(k) of the Code that complies with the safe harbor requirements under Sections 401(k)(12) or 401(k)(13), including safe harbor matching contributions, are exempt from the top-heavy rules, as are government plans and collectively-bargained plans.

5. Contribution and Benefit Limits

Plan sponsors are well aware of the number of contribution and benefit limits under the Code. One such limit is the compensation limit under Section 401(a)(17) of the Code, which prohibits any plan from taking into account compensation in excess of that limit ($280,000 for 2019). Another is the limit under Section 401(a)(30) of the Code, which states that elective deferrals may not exceed the limit under Section 402(g) of the Code ($19,000 for 2019). Similarly, Section 414(v) of the Code limits catch-up contributions for participants age 50 and older ($6,000 for 2019). Section 415 provides that a defined benefit plan may not provide an annual accrued benefit that pays more than the lesser of a specific dollar limit ($225,000 for 2019) or 100% of a participant’s average compensation for his high three years. A defined contribution plan may not provide contributions and other amounts in excess of a specific dollar amount ($56,000 for 2019) or 100% of the participant’s compensation. The nondiscrimination rules under Code Sections 401(a)(4), 401(k) and 401(m) limit the amount of contributions (including elective deferrals) that may be made on behalf of a highly-compensated employee. In addition, tax deductibility of contributions a plan sponsor makes to a plan is limited under Section 404 of the Code (see below).

6. Funding and deductions

Defined benefit (as well as money purchase) plans must comply with the minimum funding rules under Section 412 of the Code. Sponsors of defined benefit plans must make a minimum contribution for any plan year in an amount based, in general, on whether the value of plan assets is less than, or is equal to or exceeds the present value of all benefits accrued or earned under the plan as of the beginning of the plan year. Sponsors must make this minimum contribution within eight-and-a-half months after the close of the applicable plan year.

Although defined contributions plans such as profit-sharing plans (including those with a cash or deferred arrangement, or “401(k) plans”) do not have to satisfy Section 412 of the Code, sponsors of defined contribution plans do have to make contributions according to plan provisions.

In order to deduct contributions under either a defined benefit or defined contribution plan for a year under Section 404 of the Code, a plan sponsor must make those contributions no later than the filing date of the plan sponsor’s tax return for the year in which contributions accrued, plus extensions. A plan sponsor will not be able to deduct contributions it makes in excess of the amount permitted under Section 404. For a defined benefit plan, this amount equals the greater of a calculation involving the plan’s funding target and other amounts for the plan year, or the sum of the minimum required contributions for the plan year. For a defined contribution plan such as a profit-sharing plan (including a 401(k) plan) as well as a money purchase plan, this amount equals 25% of the compensation otherwise paid or accrued during the year to the participants under the plan.

7. Distributions

Distributions under defined benefit plans (as well as money purchase plans and in some instances other defined contribution plans under which payment is made in the form of an annuity) must comply with the joint and survivor annuity and pre-retirement survivor annuity provisions of Section 401(a)(11) of the Code. This means that payment of a married participant’s benefit under a defined benefit plan must be made in the form of a qualified joint and survivor annuity if the participant is alive on the date payment begins, or in the form of a pre-retirement survivor annuity if the participant is deceased on such date. This requirement does not apply if the participant waives the applicable form of benefit with his or her spouse’s consent (assuming the plan permits such waiver). It also does not apply if the plan treats the participant as married only if the participant and his or her spouse have been married for one year at the time payments to the participant begin or at the time of the participant’s death, if earlier. Payment of an unmarried participant’s benefit must be made in the form of single life annuity, unless the plan permits and the participant elects an optional form of benefit.

Since distributions under defined contribution plans need not comply with Section 401(a)(11) of the Code, they are often paid exclusively as lump sums. Many defined contribution plans permit in-service withdrawal, including under circumstances of hardship. In-service withdrawal of pretax deferrals (including designated Roth contributions) may not be taken prior to a participant’s attainment of age 59½ or under circumstances other than the participant’s hardship, the termination of the plan, or eligibility for a qualified reservist distribution. In-service withdrawal of other amounts (such as matching contributions and non-elective employer contributions) generally may not be taken prior to the accumulation in the plan of such contributions for a fixed number of years (no fewer than two), or the attainment of a certain age or the occurrence of a certain event such as disability.

Section 401(a)(14) of the Code provides that, absent an election by the participant otherwise, any qualified plan must begin to make payments to the participant no later than the 60th day after the latest of the close of the plan year in which (1) the participant attains age 65 or the plan’s normal retirement age, if earlier, (2) occurs the 10th anniversary of the participant’s participation in the plan, or (3) the participant terminates service with the employer. Even where a participant elects otherwise (that is, he or she elects to defer the beginning of payments), the plan must begin to pay a participant his or her benefits no later than his or her required beginning date. A participant’s required beginning date is generally April 1 after the close of the plan year containing the later of his or her attainment of age 70½ or termination of service with the employer.

The plan must issue Form 1099-R for distributions of at least $10 to a participant in a year.

8. Trust Activities

A plan sponsor may fund its qualified plan under a trust, a custodial account, an annuity contract, or certain insurance company contracts. Most common among these is a trust. In order for a trust forming part of a pension, profit-sharing or stock bonus plan to be qualified under Section 401(a) of the Code, it must be created or organized in the United States and maintained at all times as a domestic trust in the United States. It must be established and used for the purpose of distributing to an employer’s employees and/or their beneficiaries the amount (including earnings) accumulated under the plan. It must be impossible under the trust instrument at any time before satisfaction of all liabilities with respect to the employees and/or their beneficiaries for any part of the trust to be used for, or diverted to, purposes other than for the exclusive benefit of the employees and/or their beneficiaries. The plan of which the trust is a part must meet the full array of qualification requirements under Section 401(a) of the Code, including coverage, nondiscrimination, vesting, and distribution requirements. If the plan is a defined benefit plan, forfeitures must not be applied to increase the benefits any employee would otherwise receive under the plan.

On audit, the IRS will want to confirm that a plan’s fiduciaries have operated the trust according to fiduciary standards, which includes (1) operating the plan solely in the interest of participants and beneficiaries and for the exclusive purpose of providing benefits and paying plan expenses, (2) acting prudently and diversifying the plan’s investments to minimize risk, (3) following the terms of plan documents to the extent they are consistent with ERISA, and (4) avoiding conflicts of interest.

9. Plan Documents

The IRS will examine the plan document and adopted amendments to determine whether they meet current qualification requirements and were adopted timely. The rules for timely adoption of legally required amendments have changed over the years. Prior to January 1, 2017, sponsors of individually designed plans could amend their plans on a retroactive basis under a five-year remedial amendment cycle that was determined by the last digit of the sponsor’s employer identification number. In some cases, intermittent, or interim amendments, had to be adopted within this time period. Currently, a legally required amendment must be adopted by the last day of the second calendar year after the required change is published in the IRS’s Required Amendment List. The rules relating to discretionary amendments remain the same, that is, they must generally be adopted by the last day of the plan year in which they become effective. (Discretionary amendments are those that are not legally required, such as design change amendments.)

We have observed that the IRS has found during audits, amendments that were adopted late, as well as plan language and amendments that were incorrectly drafted. Relatedly, we have seen that various plan documents (the plan document itself, the SPD, election forms, the recordkeeper’s plan administration manual) do not always reflect the same plan provisions.

10. Returns and Reports

Plan sponsors must file Form 5500 annually within seven months after the end of a plan year. The sponsor may obtain an extension for this filing by submitting Form 5558 to the IRS on or before the Form 5500 due date. Plan sponsors must file Form 8955-SSA, Annual Registration Statement Identifying Separated Participants with Deferred Vested Benefits, with the IRS within seven months after the end of the plan year (though an extension may be requested).


Morgan Lewis can assist plan sponsors with compliance self-reviews. If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Lisa Barton

Marla Kreindler
Dan Salemi
Julie Stapel

New York
Craig Bitman

Bob Abramowitz
Amy Kelly
Bob Lichtenstein
Mims Maynard Zabriskie
David Zelikoff

John Ferreira
Matt Hawes
Randall McGeorge
R. Randall Tracht

Washington, DC
Rosina Barker
Althea Day
Greg Needles
Michael Richman
Jonathan Zimmerman


[1] Refer to our May 20, 2019, LawFlash, Top 10 Areas of Focus in DOL Investigations of Retirement Plans for a list of issues that the Department of Labor is concerned with in its audit activities.