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How compliance testing may impact 401(k) participants
How compliance testing may impact 401(k) participants

Your company's 401(k) plan may be subject to annual IRS compliance testing. Here are several ways this may impact you.

Updated over a week ago

Because the IRS gives 401(k) plans tax-favored status, they want to ensure all employees in a plan benefit fairly. The Actual Deferral Percentage (ADP) and Actual Contribution Percentage (ACP) tests are used to ensure that a plan is not operated in a way that favors owners and highly paid individuals, referred to as highly compensated employees (HCEs), or in a way that works to the detriment of rank-and-file employees, referred to as non-Highly compensated employees (NHCEs).

The ADP test is performed to determine if the plan is allowing HCEs to contribute via salary deduction in too great an amount when compared to NHCEs, while the ACP test looks at whether employer matching contributions favor HCEs when compared to NHCEs.


Highly compensated vs. non-highly compensated employees

The ADP and ACP compliance tests use HCEs in their calculations. When deciding who is an HCE due to compensation, we always look at the compensation for the prior year.

An HCE is:

  • An employee who made over $135,000 in 2022 (this limit may be changed by the IRS each year); AND

  • An employee who is in the top 20% when ranked by compensation; OR

  • Someone who owns more than 5% of the business in the current or prior year; OR

  • A family member of someone who owns more than 5% of the business.

A NHCE is simply everyone else.

Why does this matter to me as a participant?

While your employer is responsible for managing compliance testing for your company's 401(k) plan, there are certain scenarios when compliance testing may impact you. This generally will occur only if your employers plan fails certain tests and they need to make corrective action. In this case, they generally have two options:

  • Refunding excess contributions to HCEs; OR

  • Funding employer contributions (QNEC) to NHCEs.

Refund excess contributions

The first option for correcting a failed ADP test is for your employer to refund enough of the deferrals from the HCEs to reduce their average deferral rate to the percentage necessary to pass the test. In this case, you may receive a refund of some of your deferrals after the end of the year, typically in February or March. The amount will be taxable as ordinary income in the year distributed. Any gains you may have received are also calculated and refunded with the check.

If you receive a refund, your W-2 income will remain unchanged, but you will receive a 1099-R the following January to report the taxable amount. This will be used in preparing your tax return for the year in which you received the refund. For example, if excess contributions must be returned to HCEs for the 2023 plan year, these funds will typically be refunded in February 2024 and be reported on your 2024 tax return when it is prepared in 2025.

  • Unlike other cash distributions, these 401(k) refunds are not subject to early distribution penalties if they are made by the applicable date (March 15 for most plans) and the amounts cannot be rolled over to an IRA. By default, federal tax of 10% is withheld. However, you can elect to have additional tax withheld.

  • If the refund of the contributions has a match associated with it, that amount may be forfeited.

Employer contributions

The other option an employer can choose as corrective action for a failing test is to make qualified non-elective contributions (QNECs) to the 401(k) accounts of NHCEs. This effectively increases the deferral percentage or matching rate of NHCEs to bring a plan within allowable limits.

In this scenario, if you are a NHCE, you may receive additional contributions from your employer.

This article is for informational purposes and is not intended to be interpreted or construed as tax or investment advice. Please consult a qualified tax or investment professional.


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