What you need to know about SECURE 2.0 right now

For distributions required to be made after December 31, 2022, with respect to individuals who attain age 72 after such date

Summary

Under the SECURE Act of 2019, the required minimum distribution (RMD) age was increased from 70½ to 72 for employees born after June 30, 1949. Section 107 further increased the RMD age to 73 for employees born after December 31, 1950, and before January 1, 1960, and then increased to age 75 for employees born after December 31, 1958. There’s a technical glitch in this provision as employees born during 1959 are subject to both age 73 and age 75. We expect to see guidance that clarifies which RMD age applies to such employees.

John Hancock point of view

Increasing the RMD age delays the RMD start date, which means that funds may continue to grow in a retirement account for a longer period and, in turn, potentially enable retirees to improve their financial future.

For plan years beginning after December 29, 2022

Summary

This provision amends the law to allow for a de minimis financial incentive to be provided to employees who elect to contribute to the sponsor’s 401(k) or 403(b) plan. This incentive can’t be paid with plan assets and wouldn’t be deposited into the retirement account.

John Hancock point of view

These de minimis financial incentives could be used to further encourage unenrolled participants to participate in the retirement plan.

Effective December 29, 2022

Summary

The act codifies rules regarding recovery of inadvertent overpayments from qualified, 403(a), 403(b), and governmental plans (other than 457(b) plans). The act includes fiduciary relief for decisions to not recoup inadvertent overpayments (including failure to make the plan whole), subject to certain requirements (including that minimum funding rules are satisfied, if applicable), and, if such decision is made, any amount rolled over will continue to be an eligible rollover distribution. Plan fiduciaries can continue to recoup overpayments, subject to the following:

1 The recoupment process must commence within three years of the first overpayment.

2 Earnings on overpayments can’t be recouped.

3 Limitations are put on overpayments that are recouped by reducing future payments, including not reducing future payments by more than 10%.

4 Limitations are put on references to litigation in participant notifications and use of collection agencies.

5 The plan’s claims procedures must be available to contest recoupment.

The act retains that plan sponsors can amend plans retroactively to reflect plan operations and adds that plans can be amended to reduce future payments to recover the overpayment.

John Hancock point of view

The permanency of the overpayment recoupment rules should prove beneficial to both plan sponsors and participants. The three-year limitation on recoupment of overpayments should reduce participant financial hardship. In addition, the fiduciary safe harbor for not recouping is welcome news for plan sponsors who previously worried that failure to recoup could be a breach of fiduciary duty or result in loss of the plan’s tax qualified status.

For taxable years beginning after December 29, 2022

Summary

This provision reduces the excise tax from 50% to 25% on RMDs that aren’t taken in a timely manner. In addition, if the failure to take an RMD is corrected within a defined correction window, the excise tax on the failure is reduced even further to 10%.

John Hancock point of view

The reduction to the excise tax provides welcome relief to individuals in the event an RMD isn’t distributed in a timely manner. The previous 50% excise tax was extremely excessive because late RMDs are generally due to inadvertent oversight rather than an attempt to avoid the distribution.

For distributions made after December 29, 2022 (with special rules for earlier distributions)

Summary

The SECURE Act of 2019 introduced the qualified birth or adoption distribution (QBAD), which allowed plan sponsors to provide participants with additional access to amounts in their retirement plan accounts—within 12 months after the birth of a child or the date of finalization of adoption of an eligible adopted child. The original act and subsequent guidance, however, wasn’t clear about the timeframe in which amounts had to be recontributed and created uncertainty as to the timeframe for the repayment to qualify as a rollover distribution. SECURE 2.0 now restricts the recontribution period to three years beginning on the day after the date on which the QBAD was dispersed. In addition, the repayment period for distributions made prior to SECURE 2.0 ends on December 31, 2025.

John Hancock point of view

This provision brings clarity to the recontribution period that’s allowed. The QBAD must be recontributed to the plan within three years of the distribution in order to qualify as a rollover contribution, which is similar to other provisions in SECURE 2.0. This clarification should help provide financial assistance in the event of a birth or adoption while mitigating retirement plan leakage by allowing participants to recontribute over a three-year period.

For plan years beginning after December 29, 2022

Summary

401(k) and 403(b) plans can rely on employee certifications that:

• Their hardship withdrawal is being taken for one of the safe harbor hardship reasons.
• The withdrawal requested doesn’t exceed the amount needed to alleviate the hardship.
• The participant has no other reasonably available resources to alleviate the hardship.

A similar rule applies with respect to unforeseeable emergency withdrawals from a 457(b) plan. The IRS, by regulation, can limit the use of self-certification—such as in the unlikely case where the plan administrator has actual knowledge to the contrary—and address consequences of participant misrepresentations.

John Hancock point of view

Self-certification enables hardship withdrawals taken for one of the safe harbor reasons to be done electronically. The benefits include eliminating the need for plan administrators to review and approve hardship documentation and helping participants receive such hardship withdrawals faster.

For plan years beginning after December 31, 2022

Summary

Under current law, various retirement plan notices and disclosures must be distributed to all eligible employees, regardless of whether they made an election to participate in the retirement plan. Section 320 of SECURE 2.0 removes this requirement for unenrolled participants (i.e., those who are eligible but not enrolled), but only if such participants receive:

1 A summary plan description (SPD) on initial eligibility

2 An annual reminder notice regarding the participant’s eligibility, pertinent plan information, and any deadlines under the plan

3 Any other plan document to which the participant is otherwise entitled, on request

John Hancock point of view

Before adopting this optional provision, plan sponsors and their providers may want to first evaluate whether creating the new reminder notice and providing it to only a subset of their employee population (unenrolled participants) reduces or increases the complexity of their notice and disclosure burdens compared with the current practice of sending the same notices and disclosures to all eligible employees.

For distributions made after December 29, 2022

Summary

The current tax code imposes a 10% penalty for distributions taken from a retirement account prior to reaching age 59½. This provision allows penalty-free withdrawals to certain terminally ill patients.

• The individual’s physician must certify that the individual has a terminal illness or condition that can reasonably result in death within 84 months.
• The individual must otherwise be eligible for a distribution under the plan. The withdrawal may be repaid to the plan within three years, following the rules for QBAD withdrawals.

John Hancock point of view

This provision exempts a distribution to a terminally ill individual from the 10% early withdrawal penalty tax but doesn’t create a new in-service withdrawal type for otherwise restricted amounts such as 401(k) or safe harbor contribution accounts. This means that, in order to take advantage of this penalty-free withdrawal, the terminally ill individual must be otherwise eligible for a distribution under the plan.

For disasters occurring on or after January 26, 2021

Summary

The act provides permanent disaster withdrawal rules for DC plans (including 401(k), profit-sharing, money purchase, 403(b), and governmental 457(b) plans) and IRAs that opt to permit disaster withdrawals. The maximum withdrawal amount is $22,000 per disaster.

• Plans of affiliated employers will need to monitor this across all plans.
• The taxable withdrawal amount is included in income over three years, unless the participant elects otherwise.
• The withdrawal is exempt from the 10% early withdrawal penalty tax, direct rollover requirements, and mandatory 20% federal tax withholding.
• Repayment is permitted within three years after the date of withdrawal to a plan or IRA (a different repayment period applies to unused first-time home buyer withdrawals).
• Loan terms can be modified to increase the maximum loan amount (up to $100,000), permit the use of a participant’s fully vested account as loan collateral, and suspend loan repayments for up to one year.

John Hancock point of view

Having disaster withdrawal rules in place before disasters occur will enable participants to access their vested accounts.

Effective on December 29, 2022

Summary

The SECURE Act of 2019 permits a single Form 5500 to be filed for a group of plans (i.e., DC plans that have the same trustee, named fiduciary, plan administrator, and investment options). SECURE 2.0 clarifies that, in such a case, an independent auditor’s report is required only for individual plans that have 100 or more participants.

John Hancock point of view

This is welcome clarification that participation in a group of plans won’t change the independent auditor’s report requirement, which will continue to apply on a plan-level basis. This will allow employers that have fewer than 100 participants to be part of a group of plans without having to obtain an independent auditor’s report. In addition, this will be of interest to TPAs, who may be able to complete a single Form 5500 covering their clients participating in a group of plans without that causing their smaller clients to become subject to the independent auditor’s report requirement.

For plan years beginning after December 29, 2022

Summary

The design of a retirement plan can’t discriminate in favor of older employees. A hybrid DB plan that uses a variable interest crediting rate would generally use the plan’s prior year interest crediting rate (but not below zero) in testing the design of the plan for the current year. The act clarifies that the interest crediting rate to be used for this purpose (as both the rate in effect and as the projected interest crediting rate) is a reasonable projection of such variable interest crediting rate, but not greater than 6%.

John Hancock point of view

This change is focused on the accrual rules used to determine the design of the plan but doesn’t affect the interest crediting that goes into actual benefits. This could result in some sponsors redesigning their plan to have more generous pay credits for older workers.

Effective as of December 29, 2022

Summary

DB plan sponsors pay an annual amount to the Pension Benefit Guaranty Corporation (PBGC) that comprises a flat premium based on the number of participants and a variable premium that depends on the funded status of the plan. This variable rate has been indexed for many years, and the act freezes that indexing at its current rate. The $52 per $1,000 variable rate premium for 2023 will continue unchanged for future plan years, but the indexing of the flat premium will continue.

John Hancock point of view

Underfunded pension plans have seen a dramatic increase in the premiums required by the PBGC over the past several years due to the indexing of the variable rate. This freeze will limit further escalation.

For contributions made after December 29, 2022

Summary

With this provision, plan sponsors of 401(k), 403(b), and governmental 457(b) plans may offer participants the ability to designate employer matching or nonelective contributions as Roth contributions. Student loan matching contributions can also be designated as Roth contributions. Matching and nonelective contributions designated as Roth contributions may not be excluded from the employee’s income, but future earnings on the designated Roth contributions won’t be taxed if distributed as a qualified Roth distribution. These optional Roth employer contributions are available for fully vested employer matching and nonelective contributions. Currently, some plans offer an in-plan Roth conversion feature, whereby participants may convert previously contributed employer contributions to Roth contributions through separate employee-initiated elections. This provision extends this ability to employer contributions by allowing the acceleration of the Roth election to take effect at the time the employer contributions are contributed to the plan, rather than effectuating a separate in-plan Roth conversion election later.

John Hancock point of view

From a practical standpoint, it may take time for plan sponsors and service providers to offer this feature. Plans that have a vesting schedule (especially a graded schedule) will need to consider how and when to offer their participants the ability to make this election and whether to make changes to the plan’s vesting schedule to facilitate these elections. 

In addition, employer payroll and service providers will need to establish administrative processes for soliciting and processing employees’ elections and withholding requirements of any employee-elected matching or nonelective contributions as taxable income. Another consideration is how sponsors will likely want to communicate the availability of this election to their employees and provide employees with resources that explain the tax implications.

Section 102—for taxable years beginning after December 31, 2022

Section 111—for taxable years beginning after December 31, 2019 (effective retroactively)

Summary

Currently, the three-year start-up credit for employers with up to 100 employees is 50% of qualified start-up costs, with an annual limit of $5,000 (or, if less, $250 times the number of non-highly compensated employees, with a minimum of $500). 

Section 102 of SECURE 2.0 increases the 50% limit to 100% for employers with up to 50 employees, subject to the same annual dollar limit. The 50% limit remains the same for employers with 51 to 100 employees. For this purpose, qualified start-up costs are generally defined as ordinary and necessary costs needed to set up and administer the plan or to educate employees about the plan.

An additional credit for eligible employer contributions (except in the case of DB plans) is available to eligible employers for five years. The additional credit amount will be based on an applicable percentage of the amount contributed by the employer on behalf of employees (excluding salary deferrals), up to $1,000 per employee (excluding employees with wages that exceed $100,000—indexed for inflation). The applicable percentages are as follows:

• First year: 100%
• Second year: 100%
• Third year: 75%
• Fourth year: 50%
• Fifth year: 25%
• Sixth year and thereafter: 0%

Employers with 50 or fewer employees are eligible for the full credit, but the credit is phased out for employers with between 51 and 100 employees.

Section 111 of SECURE 2.0 is paired with Section 102, clarifying that a small employer that joins a multiple employer plan (MEP) or pooled employer plan (PEP) is eligible for the full start-up credit, provided that the small employer is otherwise eligible. This applies, regardless of how many years the MEP was previously in existence.

John Hancock point of view

The expanded tax credit provides a strong incentive for small employers that may be otherwise hindered by the administrative burdens and costs involved in establishing a retirement plan for employees.

This viewpoint is intended for plan sponsors and financial professionals only.

The content of this document is for general information only and is believed to be accurate and reliable as of posting date, but may be subject to change. John Hancock and our representatives do not provide investment, tax, or legal advice. Please consult your own independent advisor as to any investment, tax, or legal statements made. 

John Hancock Retirement Plan Services LLC offers administrative and/or recordkeeping services to sponsors and administrators of retirement plans. John Hancock Trust Company LLC provides trust and custodial services to such plans. Group annuity contracts and recordkeeping agreements are issued by John Hancock Life Insurance Company (U.S.A.), Boston, MA (not licensed in NY), and John Hancock Life Insurance Company of New York, Valhalla, NY. Product features and availability may differ by state. Securities are offered through John Hancock Distributors LLC, member FINRA, SIPC. 

John Hancock Investment Management Distributors LLC is the principal underwriter and wholesale distribution broker-dealer for the John Hancock mutual funds, member FINRA, SIPC.

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