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Hardship Distributions from 401k Plans Addressed by IRS Working Paper

distributions from 401k plansThe US Internal Revenue Service (IRS) has issued new guidelines for substantiating hardship distributions from 401k plans, referred to as Employee Plans (EP). The memorandum from the Treasury Department “sets forth substantiation guidelines for EP examinations. Employees examining whether a section 401(k) plan hardship distribution is ‘deemed to be on account of an immediate and heavy financial need’ under safe-harbor standards set out in § 1.401(k)-1(d)(3)(iii)(B) of the Income Tax Regulations.

As a general rule, employees are permitted to receive a distribution from elective contributions from their plan on account of a hardship, hence the term “hardship distribution.”

EXISTING RULES FOR HARDSHIP DISTRIBUTIONS

A distribution is made on account of hardship only if the distribution is made on account of an immediate and heavy financial need of the employee and is necessary to satisfy the financial need. § 1.401(k)- 1(d)(3)(i)of the Income Tax Regulations.

“A distribution is deemed to be on account of an immediate and heavy financial need” under § 1.401(k)-1(d)(3)(iii)(B) of the Income Tax Regulations if it is for one or more of the following:

  1. Expenses for medical care deductible under section 213(d) for the employee or the employee’s spouse, children or dependents (as defined in section 152) or primary beneficiary under the plan;
  2. Costs directly related to the purchase of a principal residence;
  3. Payment of tuition, related educational fees, room and board expenses for up to the next 12 months of post-secondary education for the employee or the employee’s spouse, children or dependents (as defined in section 152) or primary beneficiary under the plan;
  4. Payments necessary to prevent the eviction of the employee from the employee’s principal residence or foreclosure of the mortgage on that residence;
  5. Payments for burial or funeral expenses for the employee’s deceased parents, spouse, children or dependents (as defined in section 152) or primary beneficiary under the plan; or
  6. Expenses for the repair of damages to the employee’s principal residence that would qualify for the casualty deduction under section 165. Substantiation that a distribution is for one of the above items is required to determine that a hardship distribution is deemed to be on account of an immediate and heavy financial need.

Administrative Guidelines If during an examination, you are reviewing distributions to determine whether they are made on account of a deemed immediate and heavy financial need, you should take the steps described below.

Step 1.

  • Determine whether the employer or third-party administrator, prior to making a distribution, obtains: (a) source documents (such as estimates, contracts, bills and statements from third parties); or (b) a summary (in paper, electronic format, or telephone records) of the information contained in source documents.
  • If a summary of information on source documents is used, determine whether the employer or third-party administrator provides the employee notifications required on Attachment I prior to making a hardship distribution.

Step 2.

  • If the employer or third-party administrator obtains source documents under Step 1(i)(a), review the documents to determine if they substantiate the hardship distribution.
  • If the employer or third-party administrator obtains a summary of information on source documents under Step 1(i)(b), review the summary to determine whether it contains the relevant items listed on Attachment I.
  • If the notification provided to employees in Step 1(ii) or the information reviewed in Step 2(ii) is incomplete or inconsistent on its face, you may ask for source documents from the employer or third-party administrator to substantiate that a hardship distribution is deemed to be on account of an immediate and heavy financial need.
  • If the summary of information reviewed in Step 2(ii) is complete and consistent but you find employees who have received more than 2 hardship distributions in a plan year, then, in the absence of an adequate explanation for the multiple distributions and with managerial approval, you may ask for source documents from the employer or third-party administrator to substantiate the distributions. Examples of an adequate explanation include follow-up medical or funeral expenses or tuition on a quarterly school calendar.
  • If a third-party administrator obtains a summary of information contained in source documents under Step 1(i)(b), determine whether the third-party administrator provides a report or other access to data to the employer, at least annually, describing the hardship distributions made during the plan year.

If you determine that all applicable requirements in Step 1 and Step 2 are satisfied, the plan should be treated as satisfying the substantiation requirement for making hardship distributions deemed to be on account of an immediate and heavy financial need.

Timothy Kelly
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