To help ensure that companies extend their 401(k) plans to low-paid employees, an IRS rule limits the maximum deferral by the company's highly compensated employees (HCEs) based on the average deferral by the company's non-highly compensated employees (NHCEs). If the less compensated employees save more for retirement, then the HCEs are allowed to save more for retirement. This provision is enforced via "non-discrimination testing". Non-discrimination testing takes the deferral rates of HCEs and compares them to NHCEs. In 2008, an HCE was defined as an employee with compensation greater than $100,000 in 2007, or as an employee that owned more than 5% of the business at any time during the year or the preceding year.[32] In addition to the $100,000 limit for determining HCEs, employers can elect to limit the top-paid group of employees to the top 20% of employees ranked by compensation.[32] That is, for plans with the first day of the plan-year in the 2007 calendar year, HCEs are employees who earned more than $100,000 in gross compensation (also known as 'Medicare wages') in the prior year. For example, most testing done in 2009 was for the 2008 plan-year, which compared 2007 plan-year gross compensation to the $100,000 threshold in order to determine who was an HCE and who was an NHCE. The threshold was $125,000 for 2019, and is $130,000 for 2020.[28]
There are subtle differences between what is considered an IRA rollover, and what is considered an IRA transfer. The important thing to know - with either one for the rollover to be tax-free, the funds must be deposited in the new account no later than 60 days from the time they were withdrawn from the old one (unless it's a trustee-to-trustee transfer, as discussed in more detail below).

Generally, a 401k participant may begin to withdraw money from his or her plan after reaching the age of 59 without penalty. The Internal Revenue Code imposes severe restrictions on withdrawals of tax-deferred or Roth contributions while a person remains in service with the company and is under the age of 59. Any withdrawal that is permitted before the age of 59 is subject to an excise tax equal to ten percent of the amount distributed (on top of the ordinary income tax that has to be paid), including withdrawals to pay expenses due to a hardship, except to the extent the distribution does not exceed the amount allowable as a deduction under Internal Revenue Code section 213 to the employee for amounts paid during the taxable year for medical care (determined without regard to whether the employee itemizes deductions for such taxable year).[11] Amounts withdrawn are subject to ordinary income taxes to the participant.


“The ability to rollover retirement assets can lead to a simpler retirement strategy with more control over investment choices. If an individual has had multiple employers throughout their working career, he or she most likely have multiple retirement accounts. It can become easy to lose track of those accounts. Rolling those accounts over to another IRA or potentially even a Roth IRA can drastically simplify an overall portfolio. While funds are in a 401(k)/403(b), investment options are limited to what the company has approved. Once a rollover is completed, a client has access to a much larger pool of investment options.” — Ben Koval, Financial Planner, Decker Retirement Planning
ROBS plans, while not considered an abusive tax avoidance transaction, are questionable because they may solely benefit one individual – the individual who rolls over his or her existing retirement 401(k) withdrawal funds to the ROBS plan in a tax-free transaction. The ROBS plan then uses the rollover assets to purchase the stock of the new business. A C corporation must be set up in order to roll the 401(k) withdrawal.
Employees who are eligible for a rollover IRA can do one rollover in a 12-month period — no matter how many IRAs or 401(k) accounts they have. According to IRA rollover rules, completing a rollover is a simple process. There are two ways to do a rollover — a direct transfer between custodians or by having your current custodian send you a check and completing the rollover yourself within 60 days.
In direct transfers, the IRS withholds no taxes. Rather, the entire amount transfers directly from one account to another. However, if the account holder receives a check he or she deposits into the IRA, the IRS insists upon a withholding penalty. Custodians or trustees must withhold 10 percent on checks from IRA distributions and 20% on distributions from other retirement accounts, whether or not the funds are for a rollover. At tax time, this amount appears as tax paid by the tax filer.

To help ensure that companies extend their 401(k) plans to low-paid employees, an IRS rule limits the maximum deferral by the company's highly compensated employees (HCEs) based on the average deferral by the company's non-highly compensated employees (NHCEs). If the less compensated employees save more for retirement, then the HCEs are allowed to save more for retirement. This provision is enforced via "non-discrimination testing". Non-discrimination testing takes the deferral rates of HCEs and compares them to NHCEs. In 2008, an HCE was defined as an employee with compensation greater than $100,000 in 2007, or as an employee that owned more than 5% of the business at any time during the year or the preceding year.[32] In addition to the $100,000 limit for determining HCEs, employers can elect to limit the top-paid group of employees to the top 20% of employees ranked by compensation.[32] That is, for plans with the first day of the plan-year in the 2007 calendar year, HCEs are employees who earned more than $100,000 in gross compensation (also known as 'Medicare wages') in the prior year. For example, most testing done in 2009 was for the 2008 plan-year, which compared 2007 plan-year gross compensation to the $100,000 threshold in order to determine who was an HCE and who was an NHCE. The threshold was $125,000 for 2019, and is $130,000 for 2020.[28]

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