SARSEP Fix-It Guide - Less than 50% of eligible employees made employee elective deferrals
|Mistake||Find the Mistake||Fix the Mistake||Avoid the Mistake|
6) Less than 50% of eligible employees made employee elective deferrals
|Review payroll records and ensure that 50% of eligible employees are actually making employee elective deferrals annually||Stop employee elective deferral contributions to the SEP-IRAs.||Annually review plan document for eligibility requirements and payroll records. If less than 50% of eligible employees made elective deferrals during any year, cease withholding employee elective deferrals and notify all employees|
Each year at least 50% of your eligible employees must choose to make employee elective deferrals into the SARSEP. If fewer than 50% of the eligible employees do so, the law disallows all employee elective deferrals made for that year and they must be withdrawn from the employees’ SEP-IRAs. By 2 ½ months (March 15 for calendar-year plans) of the following year, you must provide each affected employee:
- The amount of the disallowed deferrals to the employee’s SEP-IRA for the preceding year,
- The year the disallowed deferrals and earnings are includible in gross income,
- Information stating that the employee must withdraw the excess contributions (and earnings), and
- An explanation of the tax consequences if the employee doesn't withdraw the excess.
See the Instructions for Form 5305A-SEP for detailed information on how to treat disallowed deferrals.
This is a year-by-year rule. Each year the SARSEP doesn't meet the 50% rule, employee elective deferrals for that year cannot remain in the employees’ SEP-IRAs.
How to find the mistake:
Review the plan document and determine how many employees are eligible to participate in the plan. Review payroll records to ensure that at least 50% of the eligible employees are making elective deferrals each year.
How to fix the mistake:
Stop making employee elective contributions to the plan. If the plan isn't under IRS audit, you can file a VCP submission requesting that contributions made for previous years in which fewer than 50% of eligible employees elected to make salary reduction contributions remain in the employees’ SEP-IRAs.
In 2010 and prior years, three of the four employees eligible to make employee elective deferrals were contributing to the ABC SARSEP plan. In 2011, one of the contributing employees separated from service from ABC. In the same year, two other employees became eligible to make employee elective deferrals, but opted not to contribute to the plan. Thus, in 2011 and 2012, only two of the five eligible employees made employee elective deferrals.
Correction programs available:
ABC cannot correct this mistake under SCP, which is limited to insignificant operational problems. This mistake is an employer eligibility failure. To retain plan qualification, ABC must correct this mistake under VCP or Audit CAP.
Voluntary Correction Program:
ABC should file a VCP submission to the IRS under Revenue Procedure 2013-12 identifying the failure, using the model documents, including Schedule 3 and Forms 8950 and 8951. The fee for the VCP submission is $250.
Audit Closing Agreement Program:
Under Audit CAP, correction is the same as described above under “Corrective action.” ABC and the IRS enter into a Closing Agreement outlining the corrective action and negotiate a sanction based on the maximum payment amount.
How to avoid the mistake:
Annually review the plan document for eligibility requirements and payroll records for participating employees. Review plan and personnel files annually to ensure that when you do not meet the 50% rule, you send out notices timely.