IRS Clarifies Remedial Amendment Period for Compliance With Final Hardship Withdrawal Regulations – But Operational Changes Still Required by January 1, 2020
As we previously reported here, the Bipartisan Budget Act of 2018 and the Tax Cuts and Jobs Act of 2017 made several changes to the hardship withdrawal rules for 401(k) and 403(b) plans. Two years in the making, the IRS issued final regulations on September 23, 2019 to implement these changes. Many of the changes are already effective, but certain mandatory provisions take effect January 1, 2020.
As explained in more detail below, Rev. Proc. 2020-9, issued on December 12, 2019, establishes the deadline for amending 401(k) plans to comply with the new hardship rules. Non-governmental 403(b) plans are subject to similar rules under Rev. Proc. 2019-39, which the IRS issued on September 30, 2019.
As a matter of plan design, 401(k) and 403(b) plans may allow a participant to request an in-service withdrawal if the participant has an “immediate and heavy financial need” and the withdrawal is necessary to meet that need. Historically, the hardship withdrawal regulations have included several “safe harbor” life events that were “deemed” to create an immediate and heavy financial need. These events include, among other things, medical expenses, costs related to purchasing a home, possible eviction or foreclosure, funeral expenses, certain tuition expenses, and expenses related to damage to an employee’s home (a “casualty loss”).
The new rules, which were first proposed in 2018, affect several technical aspects of administering a hardship withdrawal. Here are the most important changes:
- For hardship withdrawals occurring on or after January 1, 2020, plans are prohibited from suspending employee pay deferral contributions following a hardship withdrawal. Under the previous regulation, this suspension was required for at least six months following the hardship withdrawal.
- Further, for hardship withdrawals occurring on or after January 1, 2020, an employee must represent in writing (which includes “electronic medium” such as an online application form) that the employee has insufficient cash or other liquid assets “reasonably available” to satisfy the need. A plan administrator may rely on that representation unless the plan administrator has actual knowledge to the contrary.
- For plans that offer participant loans, employers are no longer required to force participants to take available loans before requesting a hardship withdrawal. This change is optional and can be made for the 2019 plan year. If desired, however, plan sponsors may continue to require participants to take available loans before requesting a hardship distribution. (Although the loan requirement has changed, participants who are eligible for other in-service distributions must still receive those distributions before receiving a hardship withdrawal.)
- For 401(k) plans, the available sources of hardship distributions have been expanded to include earnings on elective deferrals, as well as safe harbor matching contributions, qualified nonelective contributions (QNECs), qualified matching contributions (QMACs), and earnings on these amounts. This change is optional and is effective for the 2019 plan year. This change generally does not apply to 403(b) plans.
- The previous “safe harbor” events continue to apply. However, two changes were made:
- The IRS added a new safe harbor event for federally-declared disasters. This new safe harbor, which is optional and effective for the 2019 plan year, applies if the employee incurs expenses or losses because the employee’s principal residence, or principal place of employment, is in a federally-declared disaster area.
- The IRS also clarified the existing safe harbor for “casualty losses.” A “casualty loss” is generally the expense of repairing damage to a participant’s primary residence if the expense is tax-deductible under Section 165 of the Internal Revenue Code. Congress modified Section 165, however, and limited the tax deduction to losses attributable to a federally-declared disaster. In the final hardship rule, the IRS clarified that this new restriction under Section 165 does not apply to hardship withdrawal requests. For hardship withdrawal purposes, a casualty loss can occur regardless of whether the loss is attributable to a federally-declared disaster.
Recommended Action Steps for 2020
Employers should consider taking the following actions now:
- Work with third-party administrators and recordkeepers to do the following:
- Ensure that no employees are subject to a suspension of elective deferrals for hardship distributions on and after January 1, 2020.
- Ensure that the plan’s hardship withdrawal request forms include the new employee attestation requirement regarding lack of readily available funds to satisfy the hardship need.
- Determine when to “lift” any current suspensions of employee pay deferral contributions resulting from 2019 hardship withdrawals. Some employers have already removed these suspensions, while others are removing them effective January 1, 2020. Another option is to allow these 2019 suspensions to remain in place until they expire. Employers should explain to employees the process for resuming elective deferral contributions after the suspension is removed.
- Consider amending the plan to align with the new changes. As explained below, no amendment is immediately required, even though plans must change certain aspects of administration. Regardless of the legal deadline for amending your 401(k) or 403(b) plan, however, most of our clients are amending their plan now to align with the new requirements.
Recent Changes to Plan Amendment Deadlines
Plan sponsors have additional time to amend a retirement plan whenever the amendment is required by law. However, the extended time limit typically varies depending upon several factors, including whether the employer’s plan is a “pre-approved” or an “individually-designed” plan.
On December 12, 2019, the IRS issued Rev. Proc. 2020-9, which simplifies the deadline to amend 401(k) plans for compliance with the final hardship regulations. In short, under Rev. Proc. 2020‑9, the amendment deadline is December 31, 2021 for both pre-approved and individually designed 401(k) plans. Additionally, this deadline broadly applies to all amendments that relate to a plan’s hardship distribution provisions (and are effective no later than January 1, 2020).
The IRS also recently issued similar guidance for 403(b) plans in Rev. Proc. 2019-39. Under Rev. Proc. 2019-39, non-governmental 403(b) plans generally have until December 31, 2021 to adopt plan amendments required under the final hardship withdrawal regulations.
Although employers generally have until December 31, 2021 to finalize plan amendments relating to the final hardship withdrawal rules, it is important to keep in mind the operational changes that are required by January 1, 2020. In addition, many employers are amending their plans now in order to ensure alignment between the plan document and the plan’s administration.
If you have any questions about this Client Alert, please contact the author or any member of Miller Johnson’s Employee Benefits Practice Group.