SEP and SIMPLE

The longer I work in the Employee Plans section of the Internal

Revenue Service, and the more I meet folks like you and others trying

to save for retirement, the more enthusiastic I become in wanting every

person in America to have the ability to save for retirement.

We do have a huge coverage gap in this country. We have a

tremendous private pension system, with tens of millions of American

families benefiting from defined benefit plans, 401(k) plans, other

retirement plans, and also from IRAs that are outside the employer-

sponsored plan system. However, we also have tens of millions of

families not participating in any of those systems. They're not eligible for

a 401(k) or retirement plan because their employer – and it is in a

voluntary system – has chosen not to adopt a plan.

Recent statistics inform us that more than half – more than half – of the

American working population do not have access to a retirement plan.

When the statisticians take a deeper look into these numbers, a lot of

these workers are employed by firms with fewer than 50 employees.

The estimate is that 17 million workers are in the category of working for

an employer with fewer than 50 employees but not covered by an

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employer-sponsored plan.

And that brings us to today's discussion. There are two popular plan types

available to small business employers that they can adopt and cut into this 17

million number. The first one is called a SEP, or a Simplified Employee

Pension plan. The SEP plan allows plan sponsors to contribute to traditional

IRAs set up for the employees. And a self-employed business can adopt a

SEP.

The other plan I will discuss today is the SIMPLE IRA plan. "SIMPLE" stands

for Savings Incentive Match Plan for Employees. The SIMPLE IRA plan is

ideally suited as a start-up retirement plan for small business employers who

currently do not sponsor a retirement plan.

What I'm gonna do today is take you on a tour of both plans, providing to you

the similarities and differences when it comes time to choose and establish

one of these plans. Then the tour will continue to discuss about the

participation requirements of both plans. And finally, as the title suggests, we'll

get into the pitfalls or the recurring errors that we find in our examinations of

these plans. I will do my best to describe each error and then share with you

how to find, fix, and avoid these common errors.

By the end of this presentation, I hope that you will leave the session, contact

your clients about choosing and establishing one of these plans, and then

assist them in ensuring their plan does not have the recurring errors we

discuss here today. And before I move on, if you do not have a retirement plan

for yourself or your employees, lead by example and adopt one of these plans

when you return to your office.

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We'll start with choosing between a SEP and a SIMPLE IRA plan. A

SEP plan is available to any sized business, while a SIMPLE IRA is

generally limited to small businesses with 100 or fewer employees. A

growing business with a SIMPLE IRA plan needs to watch that 100-

employee limit closely as they expand.

To adopt a SEP or a SIMPLE IRA, we make it very easy. During this

presentation, I'm going to be saying "we make it very easy" a lot, reason

being we really want these employers to adopt these plans, so we

provide a lot of ways to make things easy for them to establish, monitor,

and run these plans.

So for a SEP, there is a Form 5305-SEP, called Simplified Employee

Pension – Individual Retirement Accounts Contribution Agreement. All

they have to do is adopt that, it's on our website, and it's done. For

SIMPLE IRA plans, they can adopt the 5305-SIMPLE if they want the

employer to choose where the money is initially deposited, or they can

use the Form 5304-SIMPLE to set up the SIMPLE IRA plan that allows

each employee to choose where the IRA is established.

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A couple of notes about these forms. First, these forms are not filed with the

IRS. The employer keeps the form in its records. Second, with regard to the

Form 5305-SEP, our exam agents are noticing a recurring error in their recent

audits. If you choose to use the Form 5305-SEP, you cannot have any other

retirement plan, except for another SEP. When an employer adopts a SIMPLE

IRA plan, the employer cannot have any other retirement plan regardless of

the method used to start the plan.

An employer can also establish a SEP or SIMPLE IRA with a prototype plan

through a mutual fund, bank, and insurance company. This financial institution

will send a plan in to us, the IRS. We approve it. Then they'll go out and try to

sell it to you and your clients to have a prototype plan, and that's what that is

called. There is also an individually designed SEP or SIMPLE IRA plan, but we

don't see too much of those. Those are very rare.

The reason why people use a prototype document or an individually designed

plan rather than the models, the employer can customize their SEP or SIMPLE

IRA more the way they would like it.

For both of these plan types, there are no filing requirements. You do not file a

Form 5500-series return. Employee contributions are not allowed with SEP

plans. SIMPLE IRA plans do allow employee contributions, which I will detail

when we reach the operating portion of the tour.

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The next stop arrives at explaining the procedures to set up these

plans, and for the most part the procedures are very similar for both

plans. First the employer needs to select a financial institution to serve

as the trustee of respective IRAs that will hold each employee's

retirement plan assets. These accounts will receive the contributions

you make to the plan.

Now, I mentioned the election period. That is a 60-day period

immediately preceding January 1st, the beginning of the next plan year.

So in essence, that would be November 2nd to December 31st.

However, the dates of this period are modified if you set up a SIMPLE

IRA plan in midyear or if the 60-day period falls before the first day an

employee becomes eligible to participate in the SIMPLE IRA plan.

Again, to make things easy, if you set up your SIMPLE IRA plan either

using the Form 5304-SIMPLE or the Form 5305-SIMPLE models, you

can give each employee a copy of the signed form and that'll satisfy this

notification requirement.

The timing to set up these plans is different. You can establish a SEP

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for a year, as late as the due date, including any extensions, of your business

income tax return for the year you want to establish the plan.

Setting up a SIMPLE IRA plan is a little more complex. You can set up a

SIMPLE IRA plan effective on any date from January 1st through October 1st

of the year. To have a SIMPLE IRA in place for January 1st, 2016, it must be

adopted by November 2nd, 2015, to accommodate the 60-day election period.

If you previously maintained a SIMPLE IRA plan, you can set up a SIMPLE

IRA plan effective only on January 1st of a year.

One difference here would be if the employer chooses to adopt the plan using

the 5304-SIMPLE, which allows each participant to select the financial

institution for receiving his or her SIMPLE IRA plan contributions. Financial

institutions authorized to hold and invest SEP and SIMPLE IRA plan

contributions are banks, savings and loan associations, insurance companies,

certain regulated investment companies, federally-insured credit unions, and

brokerage firms.

The next required item to do for both plans is execute a written agreement to

adopt a plan, and that's what we just discussed. You can use the Form 5305-

SEP, 5304-SIMPLE, 5305-SIMPLE, or prototype plan.

The next requirement is to notify the eligible employees about the plan. For a

SEP plan, the employer is required to notify each eligible employee that the

SEP was adopted, the requirements for receiving an allocation, and how the

employer contribution will be allocated.

You must also provide the following to each employee: the Form 5305-SEP, if

that's what you use to adopt the plan; a statement that IRAs other than the one

the employer contributes to may provide different rates of return and contain

different terms; a statement that the administrator of the SEP will provide a

copy of any amendments within 30 days of the effective date, along with a

written explanation of its effects. And the administrator will give written

notification to the participant of any employer contributions made to the

participant's IRA by January 31st of the following year.

For SIMPLE IRA plans, they're required to have an annual notice for all eligible

employees. The employer must notify each employee before the beginning of

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the election period of the following: the employee's opportunity to make or

change a salary reduction choice under the SIMPLE IRA plan; the employee's

ability to select a financial institution that will serve as trustee of the

employee's SIMPLE IRA if that's applicable; your decision to make either

matching contributions or nonelective contributions; a summary description

(and the financial institution usually provides that); and written notice that the

employee can transfer his or her balance without cost or penalty if you are

using a designated financial institution.

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I'm now going to discuss the participation requirements of these plans,

and I'll start with the SEP plans. An eligible employee for a SEP plan is

an individual who meets all of the following requirements: has reached

age 21; has worked for the employer in at least three of the last five

years; and received at least $600.00 in compensation from the

employer during the year.

Two items tonight with this definition. First, employees also include a

self-employed individual, and the $600.00 amount is for this year, 2015.

Cost-of-living adjustments could change this amount from year to year.

Around mid-October they release any cost-of-living adjustments. You

can go to our website to see any changes to any amounts such as this.

To further explain the SEP requirement, allow me to introduce Sephora.

Sephora is a freshman at Huxley University, where she is getting her

degree in hippology. Does anybody what hippology is? It's the study of

a horse. Now, Huxley University and a horse, what movie am I

referencing? No Marx Brothers fans here, huh? Horse Feathers. The

prize goes back in the hopper, sorry.

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Sephora worked for Barney's Barns during her summer break in school in the

year 2011, 2012, and 2013, but never more than 34 days in any year. Sephora

turned 21 in July 2014. In August 2014, Sephora began working for Barney's

on a full-time basis, and she earned $18,000.00 in 2014. So Sephora is an

eligible employee for Barney's Barns' SEP for 2014 because she met the

minimum age requirement, 21; she worked for Barney in three of the five

preceding years; and she met the minimum compensation requirement for

2014.

For a SIMPLE IRA plan, the requirements are different. Any eligible employee

would be one who, one, earned at least $5,000.00 in compensation during any

two years before the current calendar year and, two, expects to receive at

least $5,000.00 during the current calendar year. As in a SEP, an individual

can be a self-employed individual. Employers cannot impose any other

conditions for participating in a SIMPLE IRA plan, such as an age requirement.

Now, both the SEP and the SIMPLE IRA can have less restrictive

requirements if they choose. For instance, an employer could have a minimum

age of 18 in a SEP, or in a SIMPLE IRA they could make the compensation

$2,000.00, they could make it $1.00. It's their choice.

Both plans can also exclude certain classes of employees. And these are, one,

employees covered by a union agreement and whose retirement benefits were

bargained for good faith by the employees' union and the employer; and two,

nonresident alien employees who do not have U.S. wages, salaries, or other

personal services compensation from the employer. This should be “to note”

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Our tour trolley now stops at the operating/maintaining features of these

plans, and, again, I'll begin with SEP plans. Let's begin with the

contribution amounts and limitations. Remember, no employee

contributions are permitted in SEP plans. Employer contributions for

each eligible employee is based only on the first $265,000.00 of

compensation. Employers must contribute a uniform percentage of pay

for every eligible employee. And for 2015, contributions are limited to

the lesser of $53,000.00 or 25 percent of compensation.

For self-employed individuals, figuring your own SEP IRA contribution

gets a little bit more complicated. Compensation is your net earnings

from self-employment, less deductions due to contributions to your own

SEP IRA, and one-half of your self-employment tax. And, again, to

make things easy, we have a Publication 560, called Retirement Plans

for Small Business. And this provides detailed explanations and

worksheets for these rules, and what I suggest is you use this

publication to determine your self-employed contribution amounts.

There is no requirement that a SEP contribution is made in every year.

When you do contribute, however, you must contribute to the SEP IRAs

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of all eligible participants, including employees who die or terminate

employment before the contributions are made. Also, contribution to SEP

accounts are always 100 percent vested or owned by the employee.

Employer contributions to a SEP must be made by the due date, including any

extensions, for filing your federal income tax return for that year. Once you

send the SEP contributions to each eligible employee's IRA, that employee

makes all the investment decisions for his or her own account. SEP

contributions can be invested in stocks, mutual funds, money market funds,

savings accounts, and other similar types of investments. Employees can

move their SEP IRA assets from one traditional IRA to another.

Employees could take a distribution from their SEP IRA at any time.

Withdrawals are taxable in the year received. If the participant makes a

withdrawal before age 59.5, there is a 10 percent additional tax that generally

applies. We do have a publication on our website – it's Publication 5036 – that

provides a list of the exceptions to that 10 percent additional tax on early

distributions. I advise you to go there to look at that to see if any exceptions

apply.

I know the financial institutions my parents use are on top of the required

minimum distribution rolls, sometimes referred to as RMD rolls. And they do

make certain the required minimums are distributed to them. However, on our

examinations, we do see where these RMD payments are not made. If you do

not take the minimum distribution required, you may have to pay a 50, five-

zero, excise tax on the amount distributed as required. And trust me, nobody

wants to deal with that tax. So we suggest that you work with your financial

institution to ensure these distributions are made as required.

SEP contributions and earnings may be rolled over tax-free to other IRAs and

retirement plans. Our website has another tool. It's a rollover chart. It doesn't

have a publication number. I suggest on our homepage, go into the search

engine and type in "rollover chart," and it will be the first thing that shows up.

And it helps you determine whether you can roll over amounts from your SEP

IRA and the plan types where the SEP IRA can receive a rollover. Participant

loans are never permitted in SEP plans. But contributions can still be made for

the employees that have reached age 70.5 .

Again, here is some filing and notice requirements and tips. Remember, the

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employer generally has no filing requirements, including the Form 5500-series

return. Here's a friendly reminder not to include SEP contributions on the

employee's Form W-2. Instead, check the Retirement Plan box, Box 13. And,

again, remember, the employer must provide notice to the employees, which

includes the Form 5305-SEP or the prototype, any amendments, the

requirements for receiving contributions, and the annual contribution

statement. Might be easier to have written “seventy and a half.”

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Now let's move over to look at the operation of a SIMPLE IRA plan.

Again, you're gonna find some similarities and you're gonna find some

differences that we discussed with SEP.

The SIMPLE IRA is funded two ways: employee elective deferrals and

employer contributions, and we'll start with employer contributions. The

employer must annually choose one of the two contribution methods.

The employer could either make a fixed contribution of 2 percent of pay

for all eligible employees, even for those who do not elect to defer

salary into the plan, or they can match employee contributions dollar for

dollar, 100 percent, up to 3 percent of compensation. The match can be

reduced to as low as 1 percent, but no more than two calendar years

out of the five.

The second way a SIMPLE IRA is funded is through employee salary

deferrals. The amount the employee can defer for 2015 is $12,500.00.

For employees age 50 or over, a catch-up contribution in the amount of

$3,000.00 is allowed. There are salary deferral limits also for those

employees in more than one plan. The elective deferral limit for an

employee with more than one plan is $18,000.00. I suggest you visit our

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website for other limitations when employees are participating in more than

one plan.

Some employers set up an automatic enrollment feature in a SIMPLE IRA

plan. What the automatic enrollment feature allows, it allows the employer to

automatically deduct a fixed percentage or amount from the employee's wages

and contribute that to the SIMPLE IRA plan, unless the employee has

affirmatively chosen to contribute nothing or to contribute a different amount.

And these automatic enrollment payments qualify as elective deferrals.

Employees have the option to elect to terminate their salary reduction

contributions to a SIMPLE IRA plan at any time. If they do so, the SIMPLE IRA

plan may preclude them from resuming salary reduction contributions until the

beginning of the next calendar year. Employers that are making non-elective

employer contributions must continue to make them on behalf of these

employees.

An employer's 3 percent match or 2 percent non-elective contribution is

required to be deposited by the due date – again, with any extensions – for

filing your federal income tax return for the year. Employee salary reduction

contributions are required to be deposited within 30 days after the end of the

month for which the amounts would otherwise have been payable to the

employee in cash. For a self-employed person, the Schedule C filer, salary

reduction contributions must be deposited within 30 days of the end of the plan

year, or January 30th.

Withdrawal rules for SIMPLE IRA contributions and earnings are the same as I

described the SEP plans, with one minor difference. The 10 percent additional

tax increases to 25 percent if the withdrawal occurs within the first two years of

participation. Rollovers are permitted between one SIMPLE IRA to another

SIMPLE IRA, tax free. A tax-free rollover may also be made from a SIMPLE

IRA to an IRA that is not a SIMPLE IRA, but, again, only after two years of

participation in the SIMPLE IRA plan.

Also, like SEP plans, loans are never permitted. And, again, there is no Form

5500-series filing requirement. And the notification election period is, again,

generally the 60-day period immediately preceding January 1st of the calendar

year, November 2nd to December 31st. And the dates of this period are

modified if you set up a SIMPLE IRA plan in midyear or if the 60-day period

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falls before the first day an employee becomes eligible to participate in the

SIMPLE IRA plan.

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Now we enter the part of the tour that provides the recurring errors our

examination agents are finding when they audit SEP and SIMPLE IRA

plan. Again, I'll provide details as best as I can and give you tips how to

find, fix, and avoid these errors. The first part of this segment is the

most common errors we find in both plans.

The first error you see involves plans not being amended at all or not

timely. Specifically, there was a law passed called the Economic Growth

and Tax Relief Reconciliation Act of 2001, commonly known as

EGTRRA. EGTRRA provides higher compensation limits and

contribution limits. The plans, when using these new limits, must amend

their plans accordingly. So with the SIMPLE IRA plan, for instance, no

plan amendment means the employee's not being notified of these new

limits.

To find this mistake, if you're using the IRS Form 5305-SEP, 5304-

SIMPLE, or 5305-SIMPLE, check the latest revision date in the top left-

hand corner. Anything earlier than December 2004 could indicate a

problem. You can find these forms on our website. If we have a newer

form on the website, check to see if you need to adopt that latest

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version. A good chance is that you will.

If the plan's sponsor chose to use a prototype plan, we suggest you contact

the financial institution for a current letter noting that the IRS approves the plan

for current law. To fix the mistake, you would adopt the current IRS model plan

form, or prototype, whichever one you're using, and then complete a Voluntary

Correction Program, or VCP, submission. And I'll discuss this program later.

To avoid this mistake, I suggest that the plan sponsor do a yearly check of the

plan, whether it be looking for the model form on the website or contacting the

financial institution about the prototype plan, to ensure the current plan is in

use.

Our examination agents wanted me to add two tips for you. First, for those of

you using a prototype plan, please ensure the adoption agreement is signed

and dated. An unsigned or undated adoption agreement usually results in the

agent determining the plan is not amended for current law. When we talk to

taxpayers, they receive it in the mail and they think they just need to add it to

their plan and don't do anything else with it. Very important that your client sign

and date these adoption agreements.

It's also very useful for the exam agents to have the IRS opinion letter from the

financial institution that sold you the prototype plan, 'cause this enables the

agent to confirm that the plan is current. Second, be familiar with the plan

document and plan terms, and make certain the operation of the plan is in line

with the plan language.

And with that, that provides me an easy segue to the next common recurring

error in SEP and SIMPLE IRA plans. Exam agents find that the definition of

compensation in the plan is not being followed. And specifically, and recently in

SIMPLE IRA plans, we're finding that there is a failure to include bonus

payments as compensation from the matching employer contribution. We're

not sure why this is a recurring error, but we are bringing it up for your

attention.

Again, to find this mistake, we suggest a yearly spot-check to confirm that the

same compensation as defined by the plan is being used in plan operation.

And this is more important if you adopted a prototype plan and it contains a

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complicated definition. You have bonuses; you have car allowances; you have

expense reimbursements; you have overtime. And these are just a few

examples that may or may not be included in the plan definition.

To fix this mistake in a SEP, you would need to make a corrective contribution,

which include earnings through the correction date, to each affected

employee's SEP IRA. And if you cannot determine the actual investment

results, you can use a reasonable rate of interest. The Department of Labor

has an online calculator for their Voluntary Correction Program, which uses a

reasonable interest rate, and this is a good place to find the interest rate to

use.

For an error in a SIMPLE IRA, the correction's a bit more complicated because

of elective deferrals. You must make corrective contributions to the employee's

SIMPLE IRA equal to the following: one, 50 percent of the employee's elective

deferral percentage under the plan times the excluded compensation; plus the

employer contribution required under the plan times the excluded

compensation. As I mentioned with SEP plans, you would also need to include

earnings to the date of correction.

To avoid this error, I would recommend doing the same thing I mentioned for

finding the error: continue a yearly review and spot-check a few calculations

from the participants to ensure the plan definition is the same as used in

operation. If the plan is amended, make sure to change to the compensation

definition what the plan sponsor intended and the change is communicated to

the people who calculate the contributions. And sometimes what we see as

just a simple error where they get a new adoption agreement, and there might

be just a wrong check of a box and the employer's not aware that he or she

checked the box and it leads to issues, so, again, just do a yearly check to

make sure that what's being done according to the adoption agreement's being

done in operation.

The next recurring error involves improperly excluding participants from the

plan. In SEP plans, this is the most common error found by our exam agents

today. Let's revisit the SEP eligibility requirements: reached age 21, has

worked for the employer at least three of the last five years, and received at

least $600.00 in compensation from the employer during the year.

Now, in 401(a) plans, such as profit-sharing and 401(k) plans, they usually

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require an employee to work 1,000 hours of service to receive a contribution.

Our agents are finding administrators using the same requirement for the SEP

plans. Remember Sephora in my example? I purposely had her working less

than 1,000 hours to make that point. I mentioned she only worked 34 days a

year.

Another related finding by the exam agent is employees are excluded because

they're labeled as a part-time employee. Again, if the employee meets those

three requirements I just mentioned, they should be participating in the plan.

To find this mistake, we suggest that you review payroll data and determine if

employees are meeting either the SEP or SIMPLE IRA plan eligibility

requirements and if they are included in participating in the plan. If you find any

problems in the spot check, I suggest the spot check be expanded to more

employees to determine if there is a larger problem that needs fixed.

To fix this error in a SEP plan is the same correction as I mentioned for the

compensation definition error. The employer must set up a SEP IRA for the

employee and make a contribution equal to all missed contributions plus

earnings.

Correction in a SIMPLE IRA is a bit more complicated. First, the employee

didn't have a chance to make an election to defer, otherwise known as a

missed deferral opportunity. So what the IRS safe harbor correction method

assumes, that the employee would've elected to defer 3 percent of

compensation. The required corrective contribution to replace the missed

deferral opportunity is 50 percent of the missed deferral or 1.5 percent of

compensation plus earnings.

In a SIMPLE IRA, if the employer chose the matching option, they must make

a 3 percent contribution plus earnings to that employee's SIMPLE IRA. If

under the plan the employer contribution is a 2 percent non-elective

contribution, then the correction contributions should include a contribution of 2

percent of compensation, again, plus earnings.

Avoiding this error is very similar to the compensation error. Review the

participation status of employees at least once a year. And for SIMPLE IRA

plans, I suggest that this review be completed prior to the election period that

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begins on November 2nd, so you can provide the affected employees the

notice as required timely.

The last recurring error found in both plans involves employees of related

businesses that are excluded from participating in the plan. Related

businesses include controlled groups of corporations that include your

business, trades or businesses under common control with your business, and

affiliated service groups that include your business. This means, for example,

that if you and your family members own a controlling interest in another

business, the employees at that other business are employees for purposes of

determining who's eligible to participate in the SEP.

To find this mistake, all owners or partners of your business should identify any

companies they own or with which they have a financial relationship. If any of

these companies a relationship exist, review the controlled group and affiliated

service group requirements to ensure that all required employees are included

in the plan. Now, this determination of these groups gets very complex at

times, so I suggest getting help at making that proper determination if you

think you have this situation.

To fix this mistake, you correct the exact same way I mentioned for the

excluded participants error. And to avoid this error, we suggest you do an initial

assessment, as you would to find the mistake, and then perform a quick

assessment each year, especially if you or a family member gets involved in

another or new business.

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So now I'm gonna explain some recurring errors that we're finding in

SEP exams. First, contribution allocations are done improperly.

Generally, employer contributions to participant SEP IRAs must be

equal to the same percentage of compensation for each participant. For

instance, every employee gets 7 percent of compensation. What our

agents are finding is that higher-paid employees are sometimes

receiving a greater percentage of compensation than the lower-paid

employees.

Correction would be similar to what I mentioned before. In general,

place the affected employees in a position they would've been in had

the mistake not occurred, and also remember to include earnings.

Exam agents are also finding SEP IRA contributions are exceeding the

maximum limit. You may hear the term "415 limits." That is in reference

to the Internal Revenue Code section that sets these limits. And for

2015, the amount of contributions made to an employee's SEP IRA are

limited to the lesser of $53,000.00 or 25 percent of compensation. And,

again, remember to review the special calculations in Pub 560 for the

self-employed individuals.

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The general correction method is distribute any excess from the SEP IRA and

return it to the employer. I would suggest that someone verify that none of the

allocations exceed these limitations before money is transferred to the SEP

IRA.

SEP plans are prohibited from having salary deferrals, but our agents are

finding SEP plans that are trying to provide these deferrals. If an employer or

one of your clients wishes to have a salary deferral, what we suggest is they

terminate the SEP plan and then adopt a SIMPLE IRA plan. We also see some

SEP plans that are allowing catch-up contributions. These are not permitted in

SEP plans.

Finally, we're also finding that required minimum distributions are not made

because the employee is still working. These are required regardless of

whether you're still employed.

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The recurring errors we're finding exclusively in SIMPLE IRA plans are

becoming very prevalent. Please take a look at your SIMPLE IRA plans

for the following. If you remember back to my discussion of operating a

SIMPLE IRA, I mentioned the matching limit should not be reduced in

more than two calendar years during the five-year period ending with

the calendar year. Exam agents are finding this error more in recent

audits. So for example, if you only gave a 1 percent match in 2010 and

2011, then for 2012, 2013, and 2014 you must give the full 3 percent

match. They're also finding incorrect matching amounts, including none

made.

Correction is similar to what I mentioned before. Again, place the

affected employees in a position they would've been if the mistake was

not made, and, again, include earnings.

Next, we are finding more late deposits of salary deferral payments to

IRAs. The Department of Labor, or DOL, requires the transfer at the

earliest date which the employer can reasonably segregate the

contributions. They also have a seven-day safe harbor to deposit these

deferrals. Deposits after that date could lead to corrective contributions

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to make up for any lost earnings. The IRS requirement is 30 days following the

month in which you withheld deferrals from the employee's salary. If you

deposit it beyond the 30 days, it could disqualify the SIMPLE. And a tip: Most

SIMPLE IRA plans are subject to the Department of Labor rules I mentioned

here.

Finally, exam agents are finding employers are not providing the 60-day notice

as required. Items that need to be shared with eligible employees prior to

November 2nd include their right to make a salary deferral election, notification

of the employer's decision to make a fixed or matching contribution, and the

other ones I mentioned earlier in this presentation. Failure to give this

notification could lead to some extensive plan corrections. I suggest

establishing administrative procedures to provide an alert when it's time to

provide this yearly notification.

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So I've discussed many errors today that we're finding in SEP and

SIMPLE IRA plans. And, again, the reason why we share these errors

with you is, you can go back and check your plans or your clients' plans

for these errors and make these corrections sooner rather than later.

This is also why we produced what you see on the screen. I suggest

you download this slide or this menu and share it with your clients.

Again, the message you wanna convey: It is far better to correct errors

sooner rather than later. We have three correction programs, and you

can see them across the top of the chart: audit CAP, voluntary

correction, and self-correction. All of the errors I discussed today can fit

into one or more of these programs, depending on many factors. I

suggest you visit our Correcting Plan Errors web page for more detailed

information. The link can be found on our homepage under the

Maintaining Your Plan section.

Getting back to this chart, starting at the far right you can see self-

correction. With self-correction, the cost of correction is small because

you caught the error early, maybe by using the suggestions I discussed

in this presentation today. Correction does not take much time, either,

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for the same reasons: you caught it early. Also with self-correction, you can

see there are no IRS fees. As a matter of fact, you don't even have to contact

the IRS. What better program to use than the self-correction program?

The middle column represents our Voluntary Correction Program. If an error is

not eligible for self-correction, and I mentioned the non-amender – I said you

have to file a VCP submission – it is not available for self-correction, so you

would have to use voluntary correction if it was a non- or late amender. So you

would submit your errors to this IRS program.

As you can see from the chart, correction will take a little more money, more

time is involved, and you must submit a fee to have the plan correction method

approved by the IRS. Again, to make things easier or more apt for someone

with a SEP or SIMPLE IRA to do this correction, we've reduced the fee to

$250.00, where other 401(a) plans, such as your profit-sharing or 401(k) with

similar amount of employees, their VCP fee could be up to $2,500.00. So,

again, we want corrections made, and we want these plans to run smoothly,

and that's why we reduced these fees.

The column on the left represents the Audit Closing Agreement Program, or

audit CAP. This is when the IRS agent finds the error while performing an

examination of the SEP or SIMPLE IRA plan. The column tells the not-so-feel-

good story with this option. Corrections are gonna take more time and money,

because this error was not caught immediately. It might go five, six, seven

years back.

There is also a sanction amount that is negotiated between the plan sponsor

and the IRS, and that amount will always be higher than the $250.00 that's

available under the voluntary correction. So, again, if it helps, the reason why

we provide this is for you to download it, show it to your clients, and show

them the difference between the three programs, hopefully that they can look

for errors immediately, and when they find errors, they can make corrections

as soon as possible.

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I brought up our website throughout this presentation. Some of you

might be thinking, "Well, what is this website he's talking about?" We

have it here on the screen. It is www.irs.gov/retirement. This is where

you'll find the Correcting Plan Errors page, which provides the detailed

information about the correction programs I just discussed.

And, again, to make process easier, we do have submission kits and fill-

in forms for the Voluntary Correction Program. So if someone wants to

use this program, we have a lot of the items right there. They just need

to fill them in. And it's easier to do the submission for voluntary

correction.

As I said many times today, a retirement plan needs regular care to

keep it operating properly. We have a one-page check sheet for SEP

and SIMPLE IRA plans, and each checklist links to a fix-it guide with

tips on how to find, fix, and avoid each potential error. Now, this

checklist is for your use on a voluntary basis. You do not file it with the

IRS. We've had some people go over the checklist, and they get all

marked yes, and it's "Dear IRS, We have them all yes. There's no need

to audit us. We're good." It doesn't really work that way.

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Remember the checklists aren't meant as a comprehensive review. It's just an

easy way to start. Some of the sample questions include: Has your plan

document been updated within the past few years? Are the plan's operations

based on the plan document terms? Are all eligible employees participating in

the plan? Items we talked about today, and there are others. Answering no to

any of these checklist questions tells you that you may have a mistake in the

plan operation. The expanded explanation for each question gives you

examples of how to correct the mistake.

And then, finally, there are the SEP and SIMPLE IRA fix-it guides.

May contain tips on how to find, fix, and avoid common mistakes just as we

discussed today. Each guide provides an overview of the rules for each plan

type, an overview of the correction programs, the most frequent errors we find

in each plan type, and, again, tips on finding, fixing, and avoiding these

mistakes. As well with the slide I just mentioned, we encourage you to use and

share these tools with your clients.

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There may come a time when you want to or are required to terminate

your plan. Now you're thinking, "Required to? When would that be?'

Remember the SIMPLE IRA plan and its limit of 100 employees. If your

company is expanding and you need more than 100 employees, the

SIMPLE IRA plan can't be used, so you wanna switch to another plan,

like a 401(k) plan. For both plans, you are not required to give the IRS

notice of the plan termination.

To terminate a SEP, notify the financial institution you will no longer be

contributing and you wanna terminate the contract or agreement. It is a

good idea to notify your employees that you have discontinued the plan.

To terminate a SIMPLE IRA, again, it's a little more complicated than a

SEP. I've probably said that four or five times today, and just the irony of

saying "with a SIMPLE it's more complicated."

First, notify your employees within a reasonable time before November

2nd that you'll discontinue the SIMPLE IRA plan effective the following

January 1st. So for example, if you decide to terminate your plan on

November 23rd, 2015, the earliest effective termination date is January

1st, 2017. You cannot terminate your SIMPLE IRA plan in the middle of

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a year.

Next, notify your financial institution and payroll provider that you won't be

making SIMPLE IRA contributions for the next calendar year and you wanna

terminate your contributions. And finally, we recommend you keep records of

any and all of your actions.

We do our best to keep you current on the latest retirement plan news. On our

homepage, we have a box – it's an orange box on the left-hand side – that

provides the most current news on retirement plans, program updates, and

new law. I suggest you visit there regularly to get the latest news quickly.

Another option to get the news delivered to your inbox, we have two free

electronic newsletters that you can subscribe to. The first one is called

Employee Plans News, and this is geared towards more the practitioner

community, and it's more technically involved than our newsletter geared

toward plan sponsors, which is called Retirement News for Employers. It's a

Web-based product, and this newsletter will make an excellent reference

guide, as we fill them with embedded links to source materials on our website,

maybe sometimes a DOL website, et cetera.

Subscribing is easy. On our homepage, on the top left-hand side, there is a

link called Retirement Plans A-Z. That's our sitemap. Click on that. On the left-

hand side of that page, there is a link called Newsletters. Then either click on

Employee Plans News or Retirement News for Employers. You can subscribe

to both if you wish. Click on Subscribe and give us your email address, and

that's all it takes. We will send you links when we have a new newsletter, and

you can go in there and find the information you need.

We also provide monthly webinars on retirement plan topics. Click on the

Webinars link on the homepage to find upcoming webinar dates and topics.

We also keep an archive of the old webinars, so if there's something that you

missed and you can go back and find the transcript, sometimes the audio,

along with the PowerPoint, to go back and look at.

We also provide frequently asked questions, or FAQs, on over 25 topics,

including SEP and SIMPLE IRA plans and the correction programs. Many of

your questions can be answered here. And we also have an Examination and

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Enforcement page. If the unlikely event that the SEP or SIMPLE gets selected

for audit, you can go here and see the steps that the agent will take, the

different forms that he or she will use, the questions they may ask, et cetera,

to get you ready for the examination.

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