March 15, 2017
Authored by: Richard Arenburg and Denise Erwin
In today’s virtual world, we suspect most plan sponsors rely upon the self-certification process to document and process 401(k) distributions made on account of financial hardship. The IRS has recently issued examination guidelines for its field agents for their use in determining whether a self-certification process has an adequate documentation procedure. While these examination guidelines do not establish a rule that plan sponsors must follow, we believe most plan sponsors will want to ensure that their self-certification processes are consistent with these guidelines to minimize the potential for any dispute over the acceptability of its practices in the event of an IRS audit.
The examination guidelines describe three required components for the self-certification process:
(1) the plan sponsor or TPA must provide a notice to participants containing certain required information;
(2) the participant must provide a certification statement containing certain general information and more specific information tailored to the nature of the particular financial hardship; and
(3) the TPA must provide the plan sponsor with a summary report or other access to data regarding all hardship distributions made during each plan year.
The notice provided to participants by the plan sponsor or TPA must include the following:
(i) a warning that the hardship distribution is taxable and additional taxes could apply;
(ii) a statement that the amount of the distribution cannot exceed the immediate and heavy financial need;
(iii) a statement that the hardship distributions cannot be made from earnings; and
(iv) an acknowledgement by the participant that he or she will preserve source documents and make them available upon request to the plan sponsor or plan administrator at any time.
The participant certification statement for financial hardship distributions must contain the following information:
(i) the participant’s name;
(ii) the total cost of the hardship event;
(iii) the amount of the distribution requested;
(iv) a certification provided by the participant that the information provided is true and accurate; and
(v) more specific information with regard to the applicable category of financial hardship, as outlined in the examination guidelines that can be found at the following website link: https://www.irs.gov/pub/foia/ig/spder/tege-04-0217-0008.pdf.
In cases where any participant has received more than two financial hardship distributions in a single plan year, the guidelines advise agents to request source documents supporting those distributions if a credible explanation for the multiple distributions cannot be provided. Given the instructions being given to agents in this regard, plan sponsors may wish to consider limitations on the number of financial hardship distributions that a participant may take or to apply a more stringent process for approving requests for financial hardship distributions where more than two requests are made in any plan year.
Plan sponsors should be aware that this IRS memorandum only addresses substantiation of “safe-harbor” distributions and that if a plan permits hardship distributions for reasons other than the “safe-harbor” reasons listed in the regulations, the IRS may take the position that self-certification regarding the nature of those hardships is not sufficient.
The good news with these guidelines is that if a self-certification process with respect to “safe-harbor” hardship distributions adheres to these guidelines, plan sponsors should have less concern over using the self-certification process and there should be fewer, if any, disputes with IRS field agents over the need for plan sponsors to maintain or provide access to source documents.