SECURE 2.0 Act

In late December, as part of budget appropriations for 2023, Congress passed and President Biden signed into law, the SECURE 2.0 Act.  For those interested in the full text, see Division T of HR 2617.  It can be found on pages 2046-2404 of the 4,155 page document.  SECURE 2.0 is an add-on to the original Setting Every Community Up for Retirement Enhancement (“SECURE”) Act of 2019, most of which went into effect in 2020.  SECURE 2.0 is filled with a ton of tax, retirement, and other provisions, many of which are extremely complex and will require additional guidance from the IRS on implementation.  Below are the provisions I noted that are most likely to impact some PWA clients, now, or in the future (I tried to sort these in order of most interest to least for the average client, so the more important ones are listed first.  This makes the list NOT follow the sections of the bill at all).

  • Rollover of unused 529 plans to Roth IRAs – SECURE 2.0 allows for penalty-free rollovers from a 529 plan to a Roth IRA for the beneficiary of the 529 under certain circumstances.  The lifetime limit is $35k per beneficiary, but annually, can’t be more than what the beneficiary could contribute to a Roth IRA (that may or may not include the need to have earned income… we’ll need more guidance on that).  The 529 account must have been open for at least 15 years to make such a transfer and the transferred amount must have been in the account for more than 5 years (i.e. you can’t contribute and then immediately convert…  this is really intended for leftover education savings after school is complete).  Interestingly, there are no income limits to making these rollover contributions, so we have another “backdoor Roth” type opportunity.
  • RMD begin date – Required Minimum Distributions from pre-tax retirement plans must start in the year that a taxpayer turns 72 (up from 70.5 due to SECURE 1.0).  SECURE 2.0 extends this to age 73 starting in 2023 and to 75 starting in 2033.
  • Missed RMD penalty reduced – from 50% to 25%, or 10% if the correction occurs in a timely manner (generally, within 2 years).  Starts in 2023.
  • Additional 401k catch-up contribution – for those ages 60-63, the catch-up contribution amount is increased to $10k (from the current $7500) or 50% more than the regular catch-up contribution, whichever is greater, starting in 2025.
  • Catch-up contributions must be Roth – Currently, catch-up contributions to a 401k/403b can be pre-tax or Roth as decided by the plan participant.  Starting in 2024, all catch-up contributions must be Roth, unless the participant’s previous year compensation is less than $145k (indexed for inflation).
  • Matching contributions can be Roth – Currently all 401k/403b employer matching is done on a pre-tax basis to a Traditional 401k.  Starting in 2023, plans can allow participants to direct whether they want the match to be contributed to the Traditional or Roth 401k/403b.  If Roth, the match will be considered taxable income in the year the contribution is made.
  • Student loan payments will count for 401k matching purposes – when employers offer a 401k match, if the employee doesn’t contribute to the plan, they don’t get the match.  SECURE 2.0 changes that by allowing employers to count student loan payments as contributions to 401ks for the purpose of calculating how much matching an employee will get.  Starts in 2024.  Another seemingly difficult one from an administration perspective.  I’m sure there will be more guidance on how the employee proves the loan payment to the employer and by what deadline to receive the match.
  • SIMPLE and SEP plans can be Roth – starting in 2023, both SIMPLEs and SEPs can allow Roth contributions (would need a SIMPLE Roth IRA and SEP Roth IRA, respectively.
  • Use of 401k funds in Federally Declared Disasters – up to $22k can be withdrawn penalty-free (but not tax-free) from a 401k for a federally declared disaster.  The amount is taxable over 3 years, to allow the impact to be spread rather than potentially bumping the taxpayer up in bracket in the year of the disaster.  The amount can also be re-contributed within three years and then no tax is due.  In addition, loans from 401ks get a boost if you live in a Federally declared disaster area.  Instead of the max loan being 50% of the vested balance or $50k (whichever is less), it becomes 100% of the vested balance or $100k (whichever is less).  Effective for disasters occurring after Jan 25, 2021.
  • IRA Catch-Up – the extra amount that you can contribute to an IRA if you’re over age 50 will now be indexed to inflation (was previously a flat $1k).  Starts in 2024.
  • Qualifying longevity annuity contracts (QLACs) can be larger – the are annuities that start payment after age 72.  Previously limited to 25% of account value or $125k max, up to $200k can now be purchased and is exempted from Required Minimum Distributions (RMD).  Start is in 2023.
  • Qualified Charitable Distribution (QCD) easing – SECURE 2.0 indexes the $100k annual QCD limit to inflation, and allows a one-time $50k QCD to a charitable gift annuity, charitable remainder unitrust, or charitable remainder annuity trust.  Starts in 2023.  Note, QCDs can still be made by those over 70.5 years of age, despite the RMD begin date being pushed back from the year you turn 70.5 to 72 (by SECURE 1.0) and now 73 or 75 (by SECURE 2.0).
  • Roth 401k RMDs eliminated – While there has never been a Required Minimum Distribution for Roth IRAs, Roth 401ks did have an RMD.  SECURE 2.0 eliminates this starting in 2024.
  • Retirement plan distributions for Long-Term Care insurance – Up to $2500 can be distributed per year penalty-free (but not tax-free) to pay the premiums for LTCI.  Starts in 2026.
  • Penalty-free “emergency” distributions from 401ks – Can withdraw up to $1k per year as an emergency expense without penalty.  Tax is due unless the amount is repaid within 3 years.  No additional emergency withdrawals are allowed until the amount is paid back or the 3 years has passed.  Starts in 2024.
  • Emergency Savings Accounts – SECURE 2.0 allows (but does not require) employers to offer Emergency Savings Accounts to non-highly compensated employees, linked to their retirement plan.  These would function like Roth 401k accounts (after-tax) with a max of up to $2500/yr in contributions, would qualify for matching, and would allow up to 4 penalty-free withdrawals per  year.  At termination, the remaining amount can be rolled to a Roth 401k or Roth IRA>
  • 401k auto-enrollment – if you start a new job, you may find that more employers are auto-enrolling employees in their 401k, unless they opt out.  SECURE 2.0 mandates this as part of new plan setups, with initial contributions ranging from 3-10% and auto-increase annually up to 10-15%.  Starts in 2024.
  • SIMPLE plan changes – contributions limits will increase by 10% starting in 2024.  Additionally, employers contribute more to employee SIMPLE accounts (up to the lower of 10% of compensation or $5k).
  • Nannie SEPs – Domestic employees can participate in Simplified Employee Pension (SEP) plans.  Starts in 2023.
  • Starter 401k plans – Employers without a 401k (or 403b) can sponsor a starter 401k (or safe-harbor 403b) that doesn’t require any onerous non-discrimination testing.  Employees would be auto-enrolled and can contribute up to the maximum amount that would allowed to an IRA for the given year.  Starts in 2024.
  • Saver’s Credit becomes Saver’s Match – the current Saver’s credit provides a tax credit of 50% of the first $2k contributed to a retirement plan for low income individuals / families.  SECURE 2.0 changes this to a Saver’s Match which is deposited into the saver’s retirement plan account (seems like a much more difficult plan from an administration standpoint, but perhaps it will provide a bit better incentive to contribute as the Saver’s Credit was not a popular program.  Starts in 2027.

After-Tax 401ks & Rollovers To Roth IRAs

The IRS recently clarified rules surrounding rollovers of qualified plans (401ks, 403bs, etc., all of which I’ll refer to as “401k”s for the rest of this post for simplicity) to IRAs which can have a dramatic impact on a plan participant’s ability to save for retirement in some situations. For those of you who want to read the official IRS notice, it is Notice 2014-54, released on September 18, 2014. For everyone else (which is probably everyone), I’ll summarize what changed and what it means for you. First some background…

Virtually everyone understands the pre-tax portion of a 401k. You defer a portion of your salary as a deposit to your 401k and that amount is not taxed in the period it’s earned. Instead, it grows tax-deferred until retirement, at which time you can withdraw it (usually after age 59 ½ without penalties) and pay tax at withdrawal. Another, newer type of 401k is a Roth 401k. In a Roth 401k, you are taxed on the income that you defer to your 401k, but it grows tax free and is not taxed at all (under current laws) at withdrawal in retirement. If your tax rate is the same at the time of deferral as it is in retirement, then both types of 401ks produce the same amount of after-tax money in retirement. For most people who are into their mid-earning years, the premise that they’ll earn less in retirement and have more ability to control what portion of their retirement savings is subject to tax each year means they’ll probably be in a lower tax rate in retirement. This means they’d favor the pre-tax “Traditional” 401k. While the generalization is true, in general, like much of financial planning, the details of choosing between a Traditional 401k and a Roth 401k are complicated and really need to be evaluated on a case-by-case basis. Regardless of whether you contribute to a Traditional 401k, a Roth 401k, or a combination of the two, the IRS limits contributions at $17,500 per year (indexed to inflation and likely to increase to $18,000 for 2015) + $5,500 more if you’re over age 50. If your employer makes contributions to your 401k via matching, profit sharing, or direct contributions, a second limit applies. That is that your contributions plus your employer’s contributions cannot exceed $52,000 for 2014 (again indexed to inflation).

In addition to the Traditional and Roth 401ks, there is less well-known and less-popular type of 401k called the After-Tax 401k. Many plans do not allow an After-Tax 401k due to the difficulty in accounting for so many types of contributions. For those that do allow it, in this type of 401k, contributions are taxed in the year you earn them (they don’t go into the account pre-tax like a Traditional 401k), but at withdrawal in retirement, you only pay tax on the growth since you’ve already paid tax on the amounts you contributed. This is much less powerful from a tax perspective than pre-tax in (Traditional 401k) or tax-free out (Roth 401k), but is still advantageous in some cases because it means the growth (interest, dividends, and gains) is not taxed each year as it is earned and so that growth can continue to compound tax-deferred until withdrawal. The After-Tax 401k is not subject to the $17,500 employee contribution limit, but is subject to the $52,000 total contribution limit. This means that if you’re maxing out your Traditional/Roth 401k, and your employer isn’t contributing $34,500, and your plan allows an After-Tax 401k, there is room for you to contribute to your After-Tax 401k. Unfortunately, the tax on the growth of an After-Tax 401k is assessed at ordinary income tax rates rather than at lower, capital gain rates as an ordinary taxable brokerage account would be taxed. So, in general, an efficiently managed taxable brokerage can be a better option than an After-Tax 401k, especially when considering the liquidity advantage that comes with being able to access your money at any point for any purpose. This has been the root cause of the limited popularity and use of an After-Tax 401k.

Once you leave your employer, you can withdraw from your 401k and rollover the money to an IRA. Traditional 401ks go to Traditional IRAs and Roth 401ks go to Roth IRAs, all preserving their tax status. With After-Tax 401ks, it’s more complicated. If After-Tax 401k money is rolled over to a Traditional IRA, a portion of the Traditional IRA becomes “basis”, which is not taxed again at withdrawal and every withdrawal will be part growth (taxed) and part return of basis (not-taxed). If it’s rolled over to a Roth IRA though, the tax treatment used to be unclear. Many tax practitioners and plan administrators thought that the IRS would consider Traditional 401k money and After-Tax 401k money together in one rollover, assessing a prorated amount of tax if one were to try to roll pre-tax money to a Traditional IRA and after-tax to a Roth. This treatment would be consistent with the way the IRS taxes conversions from Traditional IRAs to Roth IRAs. If there are both pre-tax and after-tax (basis) dollars in a Traditional IRA, and you attempt to convert a portion of that Traditional IRA to a Roth IRA, you’d be taxed pro-rata on the amount. Others came up with complicated multi-step schemes to try to isolate the After-Tax portion of a 401k in its own account, such that it could be converted to a Roth tax-free. IRS guidance on Sep 18 clarified that effective immediately, After-Tax 401k dollars can be rolled over directly to a Roth IRA without any tax being due as long as it’s done at the same time as Traditional 401k money is rolled over to a Traditional IRA.

I find it hard to believe that this treatment will be around forever, but at least for now, this has opened the door for massive amounts of money to be tucked away in an After-Tax 401k and then rolled directly to a Roth IRA at the time service with that employer is terminated. Here’s an example of how it could work for someone earning $200k per year, maxing out her Traditional 401k with an 8.75% ($17,500) contribution, receiving a 3% ($6,000) employer contribution, and working for three years before moving on to another opportunity at a different employer:



The person above would be able to stash away $85,500 in a Roth IRA after only 3 years while otherwise earning too much per year to be able to directly contribute to a Roth IRA. It’s clearly not for everyone since you need to have a lot of free cash flow in order to take advantage of the large contributions and your plan needs to include After-Tax 401k contributions as an option. If it can work for you, and you’re looking to tuck away large amounts of tax-advantaged money, this is a really big deal.

So here’s what to do: If you’re maxing out your $17,500 401k contribution each year and looking to put more than that away for retirement, send your 401k plan administrator a note (or call) and ask, “Does my 401k plan allow after-tax (non-Roth) contributions after I’ve hit my $17,500 maximum pre-tax contribution each year?” If the answer is “yes”, you can start to take advantage of this immediately.

One final note to keep in mind… tax rules are always changing. There’s nothing to say the IRS won’t change its mind or that Congress won’t pass a law to stop this treatment of After-Tax 401ks. That’s true of any tax law or IRS interpretation of that law. It’s prudent to monitor the tax landscape and adjust decisions accordingly. Contact your financial advisor before and while attempting something like this or if you have questions about it.

401k’s: Just Because You’re Not Writing A Check…

Just because you’re not writing a check, doesn’t mean you’re not paying for administration and access to your 401k. I’ve seen recent polls indicating that 50-75% of 401k participants believe they’re not paying anything for their 401k. They couldn’t be more wrong. There are two broad types of fees that plans participants and/or their employers incur: investment fees and administrative fees. All plans incur investment and administrative expenses, most plans pass those expenses onto investors in the plan as fees, and some plans do it in a way that is very difficult for the average investor to notice.

Investment fees are those charged by the investment funds themselves as a ways of generating a profit on their funds as well as offsetting the cost to create, maintain, and distribute the funds. These fees are passed onto investors in the fund (whether it’s through a retirement plan or an individual investment) through the fund’s expense ratio. You can find the fund’s expense ratio in the Fact Sheet or Prospectus for the fund. If the fund is publicly traded with a 5-letter ticker symbol, you can also look it up at (snip from Morningstar for a particular mutual fund is shown below with the expense ratio highlighted).

If a fund has an expense ratio of 1%, it means that over the course of each year, 1% of the fund’s total holdings are paid to the investment company and eliminated from the fund. Another way of looking at this is that the fund’s investors each pay 1% of their fund assets each year to the investment company (e.g., if you have $100k in the fund, you pay $1k per year to the fund through the expense ratio). Because this payment takes place inside the fund, it doesn’t appear on any statements or in account histories. It simply erodes the value of the fund over time, either creating larger losses than would otherwise have been incurred or reducing gains. All funds have an expense ratio, but many funds have different classes set up with different expense ratios. The more money a retirement plan has to put in the fund, the better the class they have access to and therefore the lower the cost to participants. As will be explained below though, the lowest cost class of a fund, or the lowest cost fund for a particular type of asset (large cap U.S. stocks for example) is not always the one chosen by the plan administrator.

Administrative fees are those fees charged by a third party administrator (i.e. not you and not your employer) to do the plan recordkeeping, fulfill legal requirements, provide disclosures, file government-required forms, accept payroll deposits, payout withdrawal/loan requests, and likely provide a plan website where participants can interact with the plan. Purely administrative fees paid by plan participants as either a flat amount per quarter/year or as a percentage of account value per quarter/year are usually fully disclosed on account statements and in transaction histories. In some cases, these fees are no bourn by the plan participants, but are instead paid directly by the employer. In this case, the fees are not typically disclosed to participants since they don’t directly pay the fees. In many cases, the administrative fees are not paid by the investor directly or by the employer directly, but are instead paid by the investment companies that provide the funds in the plan in the form of a commission. In these cases, the plan administrator typically selects investment funds that have a fairly high expense ratio for participation in the plan (either higher cost classes of certain funds, or higher cost funds of certain asset classes. The investment companies earn more on these funds than they would if lower-fee funds were selected, so they provide a portion of the difference to the administrator to compensate them. In this case, the administrative fees are not shown on participant statements or in account histories. They’re harder to track, and process is more convoluted (reminds me of the healthcare system of payments – but that’s another blog post for another day), but it should still be clear that the investor is paying the administrative costs nonetheless. As an extreme example, one of the worst 401k plans I’ve seen has only investment funds in it with expense ratios well over 2%. Some of the best plans have funds with expense ratios as low as 0.02%. You could argue that this means 1.98%+ of those fund fees are in excess of what they could be and that the investment company and the plan administrator are sharing those profits. If you use that 401k plan and you slowly build assets to over $500k with an average balance of $100k in the plan over 20 years, you are paying 1.98% in excess fees per year * $100k average annual balance * 20 years = $39,600 in excess fees! In many plans, there are good funds from an expense standpoint and there are bad funds. Cherry-picking the good ones and then using other retirement accounts (a spouse’s 401k/403b, IRAs, Roth IRAs, etc.) to fill in the rest of your retirement asset allocation is a good way to minimize the fund/admin expenses that you pay, and something that any good financial advisor should help you do (or do for you as is the case with PWA clients).

Recent law changes by the Department of Labor have increased the disclosures required by 401k plans so that you, as the plan participant, and your employer as the sponsor of the plan, can get a better idea of the fees that are being charged directly and indirectly. These disclosures become mandatory this month for most employers and quarterly statements will include fee information going forward by the end of the year. As part of the process, many plans are introducing new fund selections and/or changing the way they deal with administrative fees in the plan (e.g. billing them directly per participant rather than using the commission method described above). Please communicate any plan changes and send any fee disclosure documents to your PWA advisor so that we can recommend any changes you should make to your plan investments as a result.

Having access to a very diversified set of investment options in a tax advantaged retirement plan is something that is worth paying for. However, you and/or your financial advisor should know how much you’re paying for it and make sure that you’re not getting ripped off and are taking advantage of the best low-cost investment vehicles available to you.