As you may have heard, Congress recently passed the Setting Every Community Up for Retirement Enhancement 2.0 Act of 2022 (SECURE 2.0 Act) as part of a large omnibus funding bill.  This act contains a number of provisions that impact retirement plans and distributions that may impact you.  Some changes are immediate; others are deferred to 2024 or later years.  If you’re a business owner, some changes require amendments to your retirement plan to be effective.  The following is a summary of the major provisions of the law for your consideration:

Provisions Benefiting Individuals

Tax-free rollovers from 529 accounts to Roth IRAs.  After 2023, the Act permits beneficiaries of 529 college savings accounts to make up to $35,000 of direct trustee-to-trustee rollovers from a 529 account to their Roth IRA without tax or penalty.  The 529 account must have been open for more than 15 years, and the rollover is limited to the amount contributed to the 529 account (and its earnings) more than five years earlier.  Rollovers are subject to the Roth IRA annual contribution limits (currently $6,000 per individual) but are not limited based on the taxpayer's AGI.

Age increased for required distributions.  Under the Act, the age for required distribution increases, in two stages, from the current age of 72 to age 73 for those who turn age 72 after 2022, and to age 75 for those who attain age 74 in 2032.

Bigger catch-up contributions permitted.  Starting in 2025, the Act increases the current elective deferral catch-up contribution limit for older employees from $7,500 for 2023 ($3,500 for SIMPLE plans) to the greater of $10,000 ($5,000 for SIMPLE plans), or 50% more than the regular catch-up amount in 2024 (2025 for SIMPLE plans) for individuals who attain ages 60-63.  The dollar amounts are inflation-indexed after 2025.

More penalty-free withdrawals permitted.  The Act adds an exception after 2023 to the 10% early withdrawal penalty tax for one distribution per year of up to $1,000 used for emergency expenses to meet unforeseeable or immediate financial needs relating to personal or family emergencies.  The taxpayer has the option to repay the distribution within three years.  No other emergency distributions are permissible during the three-year period unless repayment occurs.

Similarly, plans may permit participants that self-certify having experienced domestic abuse to withdraw the lesser of $10,000, indexed for inflation, or 50% of their account free from the 10% tax on early distributions.  The participant has the opportunity to repay the withdrawn money from the retirement plan over three years and get a refund of income taxes on money that is repaid.  Also, the additional 10% early distribution tax no longer applies to distributions to terminally ill individuals.

Beginning December 29, 2025, retirement plans may make penalty-free distributions of up to $2,500 per year for payment of premiums for high quality coverage under certain long term care insurance contracts.

Also, retroactive for disasters after January 25, 2021, penalty free distributions of up to $22,000 may be made from employer retirement plans or IRAs for affected individuals.  Distributed amounts are included in gross taxable income over three years.  Distributions can be repaid to a tax preferred retirement account.  Additionally, amounts distributed prior to the disaster to purchase a home can be recontributed, and an employer may provide for a larger amount to be borrowed from a plan by affected individuals and for additional time for repayment of plan loans owed by affected individuals.

The Act also contains an emergency savings provision that allows employers to offer non-highly compensated employees emergency savings accounts linked to individual account plans that automatically opt employees into these accounts at no more than 3% of their salary, capped at a maximum of $2,500.  Employees can withdraw up to $1,000 once per year for personal or family emergencies without certain tax consequences.

Reduced penalty tax on failure to take RMDs.  For tax years beginning after December 29, 2022, the Act reduces the penalty for failure to take required minimum distributions from qualified retirement plans, including IRAs, or deferred compensation plans under Code Sec. 457(b) from the current 50% to 25% of the amount by which the distribution falls short of the required amount.  It reduces the penalty to 10% if the failure to take the RMD is corrected in a timely manner.

Tax-exempt disability retirement payouts for first responders.  The Act allows law enforcement officers, fire fighters, paramedics, and emergency medical technicians to exclude from gross income certain service-related disability pension or annuity payments (from a 401(a), 403(a), governmental 457(b), or 403(b) plan) after they reach retirement age.  The exclusion applies to amounts received for post-2026 tax years.

Return of excess contributions.  The Act specifies that earnings attributable to excess IRA contributions that are returned by the taxpayer's tax return due date (including extensions) are exempt from the 10% early withdrawal tax.  The taxpayer must not claim a deduction for the distributed excess contribution.  This applies to any determination of, or affecting, liability for taxes, interest, or penalties made on or after December 29, 2022.

Small Business Provisions

Bigger tax credit for start-up retirement plans.  The SECURE Act improves the small employer pension plan start-up cost credit in three ways for tax years starting after 2022.

First, it makes the credit equal to the full amount of creditable plan start-up costs for employers with 50 or fewer employees (up to an annual cap).  Previously only 50% of costs were allowed (which still applies to employers with 51 to 100 employees).

The Act also retroactively fixed a technical glitch that prevented employers who joined multi-employer plans in existence for more than three years from claiming the start-up cost credit.  Employers that joined a pre-existing multi-employer plan in 2000 or 2001 should contact us about filing amended returns claiming the credit.

Perhaps the biggest change is that certain employer contributions for a plan's first five years now may qualify for the credit.  The credit is increased by a percentage of employer contributions, up to a per-employee cap of $1,000: It is 100% in the plan's first and second tax years, 75% in the third year, 50% in the fourth, and 25% in the fifth.  For employers with between 51 and 100 employees, the contribution portion of the credit is reduced by 2% times the number of employees above 50.

In addition, no employer contribution credit is allowed for contributions for employees who make more than $100,000 (adjusted for inflation after 2023).  The credit for employer contributions also is not available for elective deferrals or contributions to a defined benefit pension plan.

Automatic salary deferral enrollment.  For plan years beginning after 2024, the Act provides that a plan that permits salary deferrals generally will not be treated as a qualified cash or deferred arrangement or annuity contract unless it includes an automatic contribution arrangement (EACA) that satisfies these requirements:

1.       it must allow permissible withdrawals within 90 days after the first elective contribution;

2.       automatic contributions must be 3% to 10% during a participant's first participation year, unless the participant elects out, automatically increasing by one percentage point each year to between 10% and 15% (but no more than 10% for plan years ending before 2025 for any non-"safe harbor" plan; and

3.       if the participant makes no investment election, automatically contributed amounts must be invested in accordance with DOL default investment rules.

Exceptions: Automatic enrollment is not required for SIMPLE 401(k) plans, plans established before December 29, 2022, governmental or church plans, plans maintained by an employer in existence for less than three years or with fewer than 11 employees.

New "starter 401(k) plans.  The Act establishes two new kinds of retirement plan designs for plan years beginning after 2023, which smaller employers may be inclined to offer to employees due to their eased costs and administrative burdens:

·         a new type of section 401(k) plan called a starter 401(k) deferral-only arrangement, which is a cash or deferred arrangement maintained by an eligible employer that automatically satisfies the actual deferral percentage (ADP) nondiscrimination test.  An employer can generally offer this type of plan only if it maintains no other plan in that year.  All employees who meet the plan's age and service requirements must be eligible to participate.

The contribution percentage must be from 3% to 15%, applied uniformly.  Employees may elect out or choose to contribute at a different level.  No matching or nonelective contributions are permitted.  Employee elective contributions for a calendar year may not exceed $6,000, adjusted for inflation, but catch-up contributions of up to $1,000, inflation indexed, are permitted for employees age 50 or over.

·         a new type of 403(b) plan called a safe harbor deferral-only plan, for which requirements similar to those described for starter 401(k) deferral-only arrangements apply.

Matching or nonelective Roth contribution option.  Before the Act, employers were not permitted to make matching or nonelective contributions on a Roth basis.  For contributions made after December 29, 2022, however, a Code Sec. 401(a) qualified plan, a Code Sec. 403(b) plan, or a governmental Code Sec. 457(b) plan may permit a participant to designate some or all employer matching contributions and nonelective contributions as designated Roth contributions.  This applies only to the extent that a participant is fully vested in these contributions.

Contribution changes for SIMPLE plans.  Employers with SIMPLE plans currently must either make contributions for employees of 2% of compensation or match employee elective deferral contributions up to 3%.  For tax years beginning after 2023, the Act permits an employer to make additional contributions to each employee of the plan in a uniform manner, of up to the lesser of up to 10% of compensation or $5,000 (indexed).

The Act also increases the SIMPLE annual deferral limit and the catch-up contribution at age 50 by 10%, compared to the limit that would otherwise apply in the first year this change is effective (tax years after 2023) for employers with no more than 25 employees.  Employers with 26 to 100 employees could provide for higher deferral limits, but only if they either provide a 4% match or a 3% employer contribution.  Similar changes to the contribution limits also apply for SIMPLE 401(k) plans.

Changes for Conservation Easements

Restriction for pass-throughs.  The Act disallows a charitable deduction for an otherwise-qualified conservation easement contribution made by a partnership, S corporation, or other pass-through entity, if the amount contributed exceeds 2.5 times the sum of each partner/member's basis in the contributing entity.  Exceptions apply where the contribution meets (1) a three-year holding period test, (2) substantially all of the contributing entity is owned by members of a family, or (3) the contribution relates to a certified historic structure (for which there is a new reporting requirement).

Correcting easement deeds.  The Act allows taxpayers to correct easement deed language for extinguishment clauses and boundary line adjustments, substituting safe-harbor language to be issued by IRS-but not for easements involving tax shelters, contributions to which the above pass-through disallowance applies, docketed Tax Court cases, or where penalties have been finalized.  The provision applies to contributions made after December 29, 2022.

We know that this amount of information is overwhelming, but there is much here that may affect you or your business.  While many of these changes will be items to review with your investment advisor or plan administrator, your BenderCPAs advisor can assist with how these changes may impact your tax picture for 2023 and beyond.  Please feel free to reach out if you wish to discuss further.