401(k) plans are named after the section of the Internal Revenue Code in which they appear, and apply to private sector employers. A Solo 401(k) plan, also called an Individual 401(k), a One-Participant plan, Self-Employed 401(k) or Self-Directed 401(k) plan, is a qualified retirement plan that was designed specifically for the self-employed or small business owner with no employees. To many peoples surprise, the Solo 401(k) plan is not a new type of retirement plan. The Solo 401(k) plan is not a term of art or even fond in the Internal Revenue Code. The Solo 401(k) Plan, in general, has the same rules and requirements as company 401(k) plan, but is not subject to the complex ERISA rules which make employee 401(k) plans so costly. In other words, the Solo 401(k) Plan is simply a 401(k) plan that is not subject to the ERISA rules because the adopting employer does not have any full-time employees, other than their spouse(s). The growth in the popularity of the Solo 401(k) plan began with the enactment of the Economic Growth and Tax Reconciliation Relief Act of 2001 (EGTRRA) which armed the Solo 401(k) plan with all the attractive features of the better known employer 401(k) plan.
The Solo 401(k) Plan has become the most popular retirement plan for the self-employed. This is exactly what the IRS envisioned when it created the Solo 401(k) Plan, also known as the Individual 401(k) or Self-Directed 401(k) Plan.
Solo 401(k) History
Pre-1978 – Deferred compensation arrangements (“cash or deferred arrangements,” known as CODAs) which allowed some compensation (and resulting tax liability) to be deferred, predate 401(k) plans by several decades and are viewed as their precursors.
In the 1950s, a number of companies, particularly banks, added to their profit-sharing plans a new feature that came to be called a “cash or deferred arrangement,” or CODA. Each year, when employees were awarded profit-sharing bonuses, they were given the option to deposit some or all of the bonus into the plan instead of receiving the bonus in cash. Even though the employee had the right to receive the bonus in cash, which normally would trigger immediate income tax, a CODA sought to treat any amount the employee contributed to the plan as if it were an employer contribution, and therefore tax-deferred.
In 1956, the IRS issued the first in a series of rulings allowing profit-sharing plans to include a CODA and still be eligible for the favorable tax treatment accorded employer contributions.
The Employee Retirement Income Security Act of 1974 (ERISA) contained sweeping changes in the regulation of pension plans, and created rules regarding reporting and disclosure, funding, vesting, and fiduciary duties. Although ERISA was aimed mostly at “assuring the equitable character” and “financial soundness” of Defined Benefit pension plans, the Act contained numerous provisions impacting Defined Contribution plans (like profit-sharing plans, and eventually 401(k) plans).
In 1962, after much deliberation, Congress enacted the Self-Employed Individuals Tax Retirement Act of 1962, extending some of the benefits of qualified plan participation to self-employed persons. Plans covering self-employed individuals were often called Keogh or H.R. 10 plans, after the principal sponsor and bill number in the House of Representatives.
The 1962 legislation required plans covering self-employed individuals to satisfy all of the qualification criteria for plans covering only common law employees and imposed numerous additional requirements and limitations.
Is the Solo 401(k) Plan Subject to ERISA?
The DOL regulations provide that a plan that covers only partners or a sole proprietor is not covered under Title I of ERISA. Pursuant to Department of Labor Regulations 2510.3-3(c) –
(1) An individual and his or her spouse shall not be deemed to be employees with respect to a trade or business, whether incorporated or unincorporated, which is wholly owned by the individual or by the individual and his or her spouse, an
(2) A partner in a partnership and his or her spouse shall not be deemed to be employees with respect to the partnership.
The provisions of Title I of ERISA, which are administered by the U.S. Department of Labor, were enacted to address public concern that funds of private pension plans were being mismanaged and abused. ERISA was the culmination of a long line of legislation concerned with the labor and tax aspects of employee benefit plans. The goal of Title I of ERISA is to protect the interests of participants and their beneficiaries in employee benefit plans.
The provisions of Title I of ERISA cover most private sector employee benefit plans. Employee benefit plans are voluntarily established and maintained by an employer, an employee organization, or jointly by one or more such employers and an employee organization. Pension plans–a type of employee benefit plan–are established and maintained to provide retirement income or to defer income until termination of covered employment or beyond. Other employee benefit plans are called welfare plans and are established and maintained to provide health benefits, disability benefits, death benefits, prepaid legal services, vacation benefits, day care centers, scholarship funds, apprenticeship and training benefits, or other similar benefits.
In general, ERISA does not cover plans established or maintained by governmental entities or churches for their employees, or plans which are maintained solely to comply with applicable workers compensation, unemployment or disability laws. ERISA also does not cover plans maintained outside the United States primarily for the benefit of nonresident aliens or unfunded excess benefit plans. In addition, ERISA does not cover plans involving self-employed business owners or entity’s with no full-time employees other than the business owner(s) and spouses(s) since the goal of Title I of ERISA is to protect the interests of participants and their beneficiaries in employee benefit plans of owners, for plans that only cover owners, there is no need for ERISA since there are no non-owner employees to protect.
Even though a Solo 401(k) plan is not subject to Title 1 of ERISA, the ERISA rules are still looked at as a reference because a Solo 401(k) Plan is still a qualified retirement plan.
1978 – The Revenue Act of 1978 included a provision that became Internal Revenue Code (IRC) Sec. 401(k) (for which the plans are named), under which employees are not taxed on the portion of income they elect to receive as deferred compensation rather than as direct cash payments. The Revenue Act of 1978 added permanent provisions to the IRC, sanctioning the use of salary reductions as a source of plan contributions. The law went into effect on Jan. 1, 1980. Regulations were issued in November of 1981.
1981 – The IRS issued proposed regulations on 401(k) plans that sanctioned the use of employee salary reductions as a source of retirement plan contributions. Many employers replaced older, after-tax thrift plans with 401(k)s and added 401(k) options to profit-sharing and stock bonus plans.
Although a tax code provision permitting cash or deferred arrangements (CODAs) was added in 1978 as Section 401(k), it was not until November 10, 1981 that the IRS formally described the rules for these plans. In the years immediately following the issuance of these rules, large employers typically offered 401(k) plans as supplements to their Defined Benefit plans, with few employers offering them to employees as stand-alone retirement plans. November 10, 1981 marks the birth of the modern 401(k) plan. After that date, companies began to add 401(k) contributions to their profit-sharing plans, convert after-tax thrift-savings plans to 401(k) plans, or create new 401(k)-type DC plans.
Within two years, surveys showed that nearly half of all large firms were either already offering a 401(k) plan or considering one.
Over the years, most notably in 1974 and 1981, the rules for plans covering self-employed individuals were liberalized and elaborated, and rules applicable to all plans, including those covering only common law employees, were tightened by subjecting them to some of the restrictions originally applicable only to plans covering self-employed persons.
In 1982, Congress adopted a unified system for all qualified plans, including those covering self-employed persons, finding the logic of a unified system so obvious that only a single sentence was sufficient to justify the change: “Congress believed that the level of tax incentives made available to encourage an employer to provide retirement benefits to employees should generally not depend upon whether the employer is an incorporated or unincorporated enterprise.
In 2001, the Economic Growth and Tax Relief Reconciliation Act (EGTRRA) took another step to spur saving through 401(k) and other DC plans. EGTRRA increased the annual Defined Contribution plan contribution limit, albeit not higher than the $45,475 limit in place in 1982. In addition, the restrictions placed on employee deferrals were loosened as the limit on pre-tax contributions was increased and additional “catch-up” contributions were allowed for employees age 50 and older. With the goal of preserving retirement accounts even when job changes occur, EGTRRA increased the opportunities for rollovers among various savings vehicles (401(k) plans, 403(b) plans, 457 plans, and IRAs). In addition, EGTRRA permitted 401(k) plans to offer a “Roth” feature for after-tax contributions.
Prior to 2002, most self-employed individuals tended to use a SEP IRA or SIMPLE IRA as a retirement vehicle. However, in 2002 the Economic Growth and Tax Reconciliation Act of 2001 (EGTRRA) became effective and generally provided the small business owner with no employees or the self-employed the same advantages/benefits of a conventional 401(k) Plan.
EGTRRA include various reforms that contributed to the growing popularity of the Solo 401(k) Plan versus the SEP IRA and SIMPLE IRA. Below is a list of several key EGTRRA provisions that led to growth in popularity of the Solo 401(k) Plan:
1. EGTRRA increased the deductible profit sharing contribution limit from 15 percent to 25 percent of employees compensation and changed the application of deferrals so that they are not counted against the employer’s maximum deductible contribution amount.
2. EGTRRA increased the annual contribution limit per plan participant to the lesser of an annual maximum dollar amount of 100 percent of the participant’s compensation. Prior to EGTTRA, an eligible participant of a Solo 401(k) Plan was not eligible to make employee deferrals.
3. EGTRRA created the designated Roth contribution option for 401(k) and 403(b) plans. This provision allowed plan participants to designate all or a portion of their employee deferrals as Roth (after-tax) contributions.
EGTRRA modified Internal Revenue Code Section 4975(f)(6) to allow for the expansion of the loan feature to apply to unincorporated business (a sole proprietorship). Legislation passed in August 2006, the Pension Protection Act (PPA), also aims to foster retirement savings and 401(k) plan participation. Among its many provisions, the Act makes the EGTRRA pension rule changes permanent and, additionally, makes some of the rules governing pension plans more flexible. For example, the PPA encourages employers to automatically enroll employees in their 401(k) plans and allows employers to offer appropriate default investments. These measures seek to increase participation in 401(k) plans and facilitate the best use of these plans’ options by workers.
The marketing for this type of plan is aimed at business owners who do not have any employees, other than themselves and perhaps their spouse. Many of the advantages of these Solo 401K plan generally vanish if the employer expands the business and hires more employees since the employer would now be required to adopt a conventional Solo 401K Plan and must include the new employee(s) in the plan. No matter what the plan is called, it must meet the rules of the Internal Revenue Code. If employees are hired and they meet the eligibility requirements of the plan and the Code, they must be included.
Thus, the Solo 401(k) Plan is an IRS approved plan that was initially established into law in 1962 but was greatly enhanced by the 2002 EGTRRA law. Now, the Solo 401(k) Plan is the most popular retirement plan for the self-employed or small business owner.
As of 2013, The 401(k) plan retirement system now holds $2.8 trillion in assets on behalf of more than 50 million active participants and millions of former employees and retirees. The number of workers covered by 401(k) plans continues to expand, which has been a result of rules attempted to encourage more employers, small and large, to open 401(k) plans by making them as simple and accessible as possible.