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I. Taxation of Distributions

A. A participant who receives a distribution from a qualified plan (including distributions made pursuant to a QDRO) is taxed on the entire amount of the distribution (other than any amount attributable to any after-tax contributions) as ordinary income at the time the distribution is received. IRC § 402(a) and 72.

1. employer contribution

2. pre-tax contributions by the employee

3. any earnings on employer and employee contributions

B. Withholding – Plans generally must withhold 20% from a distribution

C. Additional 10% penalty may be imposed on the amount of any premature distributions, subject to certain exceptions:

1. The 10% penalty does not apply to distributions which are

a) made on or after the date on which the employee attains age 59½;

b) made to a beneficiary (including the employee's estate) on or after the death of the employee;

c) attributable to the employee's disability within the meaning of IRC § 72(m)(7); or

d) part of a series of substantially equal periodic payments made for the life (or life expectancy) of the employee or the joint lives (or joint life expectancies) of the employee and his designated beneficiary.

II. Rollovers – Way to defer taxation on distribution

A. Eligible Rollover Distributions (IRC §402(c)) – Distributions which are payable as a lump sum or in installment payments for a specified period of less than 10 years are eligible for rollover. Participants may elect to have the amount of such distributions directly rolled over into another appropriate plan – another qualified plan, a 403(b) plan, a governmental 457(b) plan or an IRA, IRC §401(a)(31). Distributions which are made pursuant to a QDRO are also eligible for rollover if the requirements of IRC § 402(c)(6) are met.

1. Types of rollover

a) Direct rollover – Plan may provide a check to the participant that is payable to the IRA or plan trustee or custodian or the plan may transfer the payment directly to the trustee or custodian via wire transfer.

b) 60-day rollover – Participant who receives a distribution may defer taxation on the distribution if it is rolled over within 60 days of its receipt.

2. Examples of distributions which are not eligible for rollover

a) annuity payments that are made over the lifetime of the participant and/or his beneficiary or for a specified period of 10 years or more;

b) required minimum payments to participants who reach age 70 1/2 ;

c) corrective distributions of excess deferrals and excess contributions from 401(k) plans;

d) hardship distributions;

e) distributions to non-spouse beneficiaries;

f) distributions attributable to defaulted loans.

B. Automatic Rollover Distribution

1. Treas. Reg. §1.401(a)(31)-1, Q&A 7 permits a plan to provide for a default rollover distribution to an IRA if a participant fails to make an affirmative election of a direct rollover (Note: the participant must have consented to the distribution first). This situation may arise when the participant has consented to a distribution but failed to request a lump sum or installment payments. Because the rollover notice must be provided 30 days prior to the date of the distribution, a plan must give a participant at least 30 days to elect a cash distribution or rollover before facilitating the default rollover.

2. If a plan provides for this default rollover procedure, the plan must establish an IRA on behalf of such participants. The plan administrator's choice of an IRA custodian or trustee is a fiduciary action, Notice 2000-36. The plan administrator responsible until the earlier of: (1) the date the participant takes control of the IRA (e.g., makes investment decisions or transfers the funds to another IRA); or (2) one year after the benefit is transferred to the IRA, ERISA §403(c)(3)(A).

3. Absent an affirmative election to receive a distribution, involuntary cash-out distributions generally must be automatically rolled over into an IRA.

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