Hardship Distributions: Lost Retirement Savings or Safety Valve for Employees?

Below is a great article written by Jerry Kalish:

Hardship distribution provisions in 401(k) plans used to be one of those matters on which plan sponsors didn't spend a whole lot of time. But because of the economy, that's not the case anymore. As a result, two points of view about hardship distributions have evolved.

One one hand, there is the view that hardship distributions act as "leakage" from 401(k) accounts, the result of which is lost retirement savings. It's a view that recently gained traction from the release of a report by the Government Accountability Office, "401(k) Plans: Policy Changes Could Reduce the Long-term Effects of Leakage on Workers' Retirement Savings."

The GAO report suggests that:
* Congress should consider changing the requirement for the six-month contribution suspension following a hardship withdrawal to help participants recover more fully from a hardship situation.
* The Secretary of Labor should consider promoting greater participant education on the importance of preserving retirement savings.
* The Secretary of the Treasury should consider clarifying and enhancing loan exhaustion provisions to ensure that participants do not initiate unnecessary leakage through hardship withdrawals.

Both the Labor Department and the Treasury Department agreed to take actions to follow the GAO's suggestions.

The other view is that hardship distributions act as a "safety valve." While hardship provisions, like loans, are allowed by law, employers are not required to provide for them in a 401(k) plan. Many do offer hardship distributions, however, because they provide a sense of security to participants as they balance their retirement savings and current financial needs. The hardship distribution acts as a safety valve in case they ever need the money.

Both views have currency (pardon the pun.) And until the economy improves, hardship distributions will continue to be a fact of life for many 401(k) plan sponsors. With that in mind, here's a brief rundown on the rules and how to avoid compliance problems:

* The hardship withdrawal must be for an "immediate and heavy financial need."
* The participant has no other way to meet the need.
* The withdrawal cannot exceed the amount needed.
* The participant must have first obtained all distribution or nontaxable loans available under the 401(k) plan.
* The participant cannot contribute to the 401(k) plan for six months following the withdrawal.

Under the provisions of the Pension Protection Act of 2006, an employee's needs may include the need of the employee's nonspouse, nondependent beneficiary. Hardship withdrawals are subject to income tax and the 10% withdrawal penalty if the participant is younger than 59-and-a-half years old.

The IRS, which regulates the tax aspects of retirement plans, was concerned enough about hardship distributions not being done properly that it discussed the matter in its summer 2009 edition of "Retirement News for Employers."

To properly handle hardship distributions, consider these basic, yet very practical, seven steps:
1. Review the terms of your plan.
2. Ensure that the employee complies with the plan's procedural requirements.
3. Verify that the employee's specific reason for hardship qualifies for a distribution using the plan's definition of what constitutes a hardship.
4. If the plan, or any of your other plans in which the employee is a participant, offers loans, document that the employee has exhausted them prior to receiving a hardship distribution.
5. Check that the amount of the hardship distribution does not exceed the amount necessary to satisfy the employee's financial need.
6. Make sure that the amount of the hardship distribution does not exceed any limits under the plan and is made only from the amounts eligible for a hardship distribution.
7. If the plan has a provision that the employee taking a hardship distribution is suspended from contributing to the plan for at least six months, make sure to enforce that provision.

Until the economy improves, don't expect the leakage to slow down.

Integrity Financial Corporation’s flagship 401k client is the Association of Washington Business (AWB) in Olympia. AWB is Washington state’s premier advocate for the business community and is recognized as The State’s Chamber of Commerce. This plan has a BrightScope Rating of 76, placing it in the top 15% of all plans in its peer group. www.brightscope.com

Integrity Financial Corporation helps business owners and individuals build a financial legacy through well designed executive compensation and retirement plans. Our clients can expect to receive personalized service and expertise, built on a foundation of trust. Call us at 425-454-1254 for the Seattle or Bellevue area, or at 1-800-794-401k.

Please visit our website at www.ifclegacy.com to have an independent fiduciary 401k advisor at Integrity Financial Corporation analyze and evaluate your company's 401k plan.

Source: 401khelpcenter.com & ebn.benefitnews.com