U.S Code last checked for updates: Jun 25, 2024
§ 402.
Taxability of beneficiary of employees’ trust
(a)
Taxability of beneficiary of exempt trust
(b)
Taxability of beneficiary of nonexempt trust
(1)
Contributions
(2)
Distributions
(3)
Grantor trusts
(4)
Failure to meet requirements of section 410(b)
(A)
Highly compensated employees
(B)
Failure to meet coverage tests
If a trust is not exempt from tax under section 501(a) for any taxable year solely because such trust is part of a plan which fails to meet the requirements of section 401(a)(26) or 410(b), paragraphs (1) and (2) shall not apply by reason of such failure to any employee who was not a highly compensated employee during—
(i)
such taxable year, or
(ii)
any preceding period for which service was creditable to such employee under the plan.
(C)
Highly compensated employee
(c)
Rules applicable to rollovers from exempt trusts
(1)
Exclusion from income
If—
(A)
any portion of the balance to the credit of an employee in a qualified trust is paid to the employee in an eligible rollover distribution,
(B)
the distributee transfers any portion of the property received in such distribution to an eligible retirement plan, and
(C)
in the case of a distribution of property other than money, the amount so transferred consists of the property distributed,
then such distribution (to the extent so transferred) shall not be includible in gross income for the taxable year in which paid.
(2)
Maximum amount which may be rolled over
In the case of any eligible rollover distribution, the maximum amount transferred to which paragraph (1) applies shall not exceed the portion of such distribution which is includible in gross income (determined without regard to paragraph (1)). The preceding sentence shall not apply to such distribution to the extent—
(A)
such portion is transferred in a direct trustee-to-trustee transfer to a qualified trust or to an annuity contract described in section 403(b) and such trust or contract provides for separate accounting for amounts so transferred (and earnings thereon), including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible, or
(B)
such portion is transferred to an eligible retirement plan described in clause (i) or (ii) of paragraph (8)(B).
In the case of a transfer described in subparagraph (A) or (B), the amount transferred shall be treated as consisting first of the portion of such distribution that is includible in gross income (determined without regard to paragraph (1)).
(3)
Time limit on transfers
(A)
In general
(B)
Hardship exception
(C)
Rollover of certain plan loan offset amounts
(i)
In general
(ii)
Qualified plan loan offset amount
For purposes of this subparagraph, the term “qualified plan loan offset amount” means a plan loan offset amount which is treated as distributed from a qualified employer plan to a participant or beneficiary solely by reason of—
(I)
the termination of the qualified employer plan, or
(II)
the failure to meet the repayment terms of the loan from such plan because of the severance from employment of the participant.
(iii)
Plan loan offset amount
(iv)
Limitation
(v)
Qualified employer plan
(4)
Eligible rollover distribution
For purposes of this subsection, the term “eligible rollover distribution” means any distribution to an employee of all or any portion of the balance to the credit of the employee in a qualified trust; except that such term shall not include—
(A)
any distribution which is one of a series of substantially equal periodic payments (not less frequently than annually) made—
(i)
for the life (or life expectancy) of the employee or the joint lives (or joint life expectancies) of the employee and the employee’s designated beneficiary, or
(ii)
for a specified period of 10 years or more,
(B)
any distribution to the extent such distribution is required under section 401(a)(9), and
(C)
any distribution which is made upon hardship of the employee.
If all or any portion of a distribution during 2020 is treated as an eligible rollover distribution but would not be so treated if the minimum distribution requirements under section 401(a)(9) had applied during 2020, such distribution shall not be treated as an eligible rollover distribution for purposes of section 401(a)(31) or 3405(c) or subsection (f) of this section.
(5)
Transfer treated as rollover contribution under section 408
(6)
Sales of distributed property
For purposes of this subsection—
(A)
Transfer of proceeds from sale of distributed property treated as transfer of distributed property
(B)
Proceeds attributable to increase in value
(C)
Designation where amount of distribution exceeds rollover contribution
In any case where part or all of the distribution consists of property other than money—
(i)
the portion of the money or other property which is to be treated as attributable to amounts not included in gross income, and
(ii)
the portion of the money or other property which is to be treated as included in the rollover contribution,
shall be determined on a ratable basis unless the taxpayer designates otherwise. Any designation under this subparagraph for a taxable year shall be made not later than the time prescribed by law for filing the return for such taxable year (including extensions thereof). Any such designation, once made, shall be irrevocable.
(D)
Nonrecognition of gain or loss
(7)
Special rule for frozen deposits
(A)
In general
The 60-day period described in paragraph (3) shall not—
(i)
include any period during which the amount transferred to the employee is a frozen deposit, or
(ii)
end earlier than 10 days after such amount ceases to be a frozen deposit.
(B)
Frozen deposits
For purposes of this subparagraph, the term “frozen deposit” means any deposit which may not be withdrawn because of—
(i)
the bankruptcy or insolvency of any financial institution, or
(ii)
any requirement imposed by the State in which such institution is located by reason of the bankruptcy or insolvency (or threat thereof) of 1 or more financial institutions in such State.
A deposit shall not be treated as a frozen deposit unless on at least 1 day during the 60-day period described in paragraph (3) (without regard to this paragraph) such deposit is described in the preceding sentence.
(8)
Definitions
For purposes of this subsection—
(A)
Qualified trust
(B)
Eligible retirement plan
The term “eligible retirement plan” means—
(i)
an individual retirement account described in section 408(a),
(ii)
an individual retirement annuity described in section 408(b) (other than an endowment contract),
(iii)
a qualified trust,
(iv)
an annuity plan described in section 403(a),
(v)
an eligible deferred compensation plan described in section 457(b) which is maintained by an eligible employer described in section 457(e)(1)(A), and
(vi)
an annuity contract described in section 403(b).
If any portion of an eligible rollover distribution is attributable to payments or distributions from a designated Roth account (as defined in section 402A), an eligible retirement plan with respect to such portion shall include only another designated Roth account and a Roth IRA.
(9)
Rollover where spouse receives distribution after death of employee
(10)
Separate accounting
(11)
Distributions to inherited individual retirement plan of nonspouse beneficiary
(A)
In general
If, with respect to any portion of a distribution from an eligible retirement plan described in paragraph (8)(B)(iii) of a deceased employee, a direct trustee-to-trustee transfer is made to an individual retirement plan described in clause (i) or (ii) of paragraph (8)(B) established for the purposes of receiving the distribution on behalf of an individual who is a designated beneficiary (as defined by section 401(a)(9)(E)) of the employee and who is not the surviving spouse of the employee—
(i)
the transfer shall be treated as an eligible rollover distribution,
(ii)
the individual retirement plan shall be treated as an inherited individual retirement account or individual retirement annuity (within the meaning of section 408(d)(3)(C)) for purposes of this title, and
(iii)
section 401(a)(9)(B) (other than clause (iv) thereof) shall apply to such plan.
(B)
Certain trusts treated as beneficiaries
(12)
In the case of an inadvertent benefit overpayment from a plan to which section 414(aa)(1) applies that is transferred to an eligible retirement plan by or on behalf of a participant or beneficiary—
(A)
the portion of such overpayment with respect to which recoupment is not sought on behalf of the plan shall be treated as having been paid in an eligible rollover distribution if the payment would have been an eligible rollover distribution but for being an overpayment, and
(B)
the portion of such overpayment with respect to which recoupment is sought on behalf of the plan shall be permitted to be returned to such plan and in such case shall be treated as an eligible rollover distribution transferred to such plan by the participant or beneficiary who received such overpayment (and the plans making and receiving such transfer shall be treated as permitting such transfer).
(13)
Recontributions of withdrawals for home purchases
(A)
General rule
(i)
In general
(ii)
Treatment of repayments
(B)
Qualified distribution
For purposes of this paragraph, the term “qualified distribution” means any distribution—
(i)
described in section 401(k)(2)(B)(i)(IV), 403(b)(7)(A)(i)(V), or 403(b)(11)(B),
(ii)
which was to be used to purchase or construct a principal residence in a qualified disaster area, but which was not so used on account of the qualified disaster with respect to such area, and
(iii)
which was received during the period beginning on the date which is 180 days before the first day of the incident period of such qualified disaster and ending on the date which is 30 days after the last day of such incident period.
(C)
Definitions
For purposes of this paragraph—
(i)
the terms “qualified disaster”, “qualified disaster area”, and “incident period” have the meaning given such terms under section 72(t)(11), and
(ii)
the term “applicable period” has the meaning given such term under section 72(t)(8)(F).
(d)
Taxability of beneficiary of certain foreign situs trusts
(e)
Other rules applicable to exempt trusts
(1)
Alternate payees
(A)
Alternate payee treated as distributee
(B)
Rollovers
(2)
Distributions by United States to nonresident aliens
The amount includible under subsection (a) in the gross income of a nonresident alien with respect to a distribution made by the United States in respect of services performed by an employee of the United States shall not exceed an amount which bears the same ratio to the amount includible in gross income without regard to this paragraph as—
(A)
the aggregate basic pay paid by the United States to such employee for such services, reduced by the amount of such basic pay which was not includible in gross income by reason of being from sources without the United States, bears to
(B)
the aggregate basic pay paid by the United States to such employee for such services.
In the case of distributions under the civil service retirement laws, the term “basic pay” shall have the meaning provided in section 8331(3) of title 5, United States Code.
(3)
Cash or deferred arrangements
(4)
Net unrealized appreciation
(A)
Amounts attributable to employee contributions
(B)
Amounts attributable to employer contributions
(C)
Determination of amounts and adjustments
(D)
Lump-sum distribution
For purposes of this paragraph—
(i)
In general
The term “lump-sum distribution” means the distribution or payment within one taxable year of the recipient of the balance to the credit of an employee which becomes payable to the recipient—
(I)
on account of the employee’s death,
(II)
after the employee attains age 59½,
(III)
on account of the employee’s separation from service, or
(IV)
after the employee has become disabled (within the meaning of section 72(m)(7)),
 from a trust which forms a part of a plan described in section 401(a) and which is exempt from tax under section 501 or from a plan described in section 403(a). Subclause (III) of this clause shall be applied only with respect to an individual who is an employee without regard to section 401(c)(1), and subclause (IV) shall be applied only with respect to an employee within the meaning of section 401(c)(1). For purposes of this clause, a distribution to two or more trusts shall be treated as a distribution to one recipient. For purposes of this paragraph, the balance to the credit of the employee does not include the accumulated deductible employee contributions under the plan (within the meaning of section 72(o)(5)).
(ii)
Aggregation of certain trusts and plans
For purposes of determining the balance to the credit of an employee under clause (i)—
(I)
all trusts which are part of a plan shall be treated as a single trust, all pension plans maintained by the employer shall be treated as a single plan, all profit-sharing plans maintained by the employer shall be treated as a single plan, and all stock bonus plans maintained by the employer shall be treated as a single plan, and
(II)
trusts which are not qualified trusts under section 401(a) and annuity contracts which do not satisfy the requirements of section 404(a)(2) shall not be taken into account.
(iii)
Community property laws
(iv)
Amounts subject to penalty
(v)
Balance to credit of employee not to include amounts payable under qualified domestic relations order
(vi)
Transfers to cost-of-living arrangement not treated as distribution
(vii)
Lump-sum distributions of alternate payees
(E)
Definitions relating to securities
For purposes of this paragraph—
(i)
Securities
(ii)
Securities of the employer
[(5)
Repealed. Pub. L. 104–188, title I, § 1401(b)(13), Aug. 20, 1996, 110 Stat. 1789]
(6)
Direct trustee-to-trustee transfers
(f)
Written explanation to recipients of distributions eligible for rollover treatment
(1)
In general
The plan administrator of any plan shall, within a reasonable period of time before making an eligible rollover distribution, provide a written explanation to the recipient—
(A)
of the provisions under which the recipient may have the distribution directly transferred to an eligible retirement plan and that the automatic distribution by direct transfer applies to certain distributions in accordance with section 401(a)(31)(B),
(B)
of the provision which requires the withholding of tax on the distribution if it is not directly transferred to an eligible retirement plan,
(C)
of the provisions under which the distribution will not be subject to tax if transferred to an eligible retirement plan within 60 days after the date on which the recipient received the distribution,
(D)
if applicable, of the provisions of subsections (d) and (e) of this section, and
(E)
of the provisions under which distributions from the eligible retirement plan receiving the distribution may be subject to restrictions and tax consequences which are different from those applicable to distributions from the plan making such distribution.
(2)
Definitions
For purposes of this subsection—
(A)
Eligible rollover distribution
(B)
Eligible retirement plan
(g)
Limitation on exclusion for elective deferrals
(1)
In general
(A)
Limitation
(B)
Applicable dollar amount
(2)
Distribution of excess deferrals
(A)
In general
If any amount (hereinafter in this paragraph referred to as “excess deferrals”) is included in the gross income of an individual under paragraph (1) (or would be included but for the last sentence thereof) for any taxable year—
(i)
not later than the 1st March 1 following the close of the taxable year, the individual may allocate the amount of such excess deferrals among the plans under which the deferrals were made and may notify each such plan of the portion allocated to it, and
(ii)
not later than the 1st April 15 following the close of the taxable year, each such plan may distribute to the individual the amount allocated to it under clause (i) (and any income allocable to such amount through the end of such taxable year).
The distribution described in clause (ii) may be made notwithstanding any other provision of law.
(B)
Treatment of distribution under section 401(k)
(C)
Taxation of distribution
In the case of a distribution to which subparagraph (A) applies—
(i)
except as provided in clause (ii), such distribution shall not be included in gross income, and
(ii)
any income on the excess deferral shall, for purposes of this chapter, be treated as earned and received in the taxable year in which such income is distributed.
No tax shall be imposed under section 72(t) on any distribution described in the preceding sentence.
(D)
Partial distributions
(3)
Elective deferrals
For purposes of this subsection, the term “elective deferrals” means, with respect to any taxable year, the sum of—
(A)
any employer contribution under a qualified cash or deferred arrangement (as defined in section 401(k)) to the extent not includible in gross income for the taxable year under subsection (e)(3) (determined without regard to this subsection),
(B)
any employer contribution to the extent not includible in gross income for the taxable year under subsection (h)(1)(B) (determined without regard to this subsection),
(C)
any employer contribution to purchase an annuity contract under section 403(b) under a salary reduction agreement (within the meaning of section 3121(a)(5)(D)), and
(D)
any elective employer contribution under section 408(p)(2)(A)(i).
An employer contribution shall not be treated as an elective deferral described in subparagraph (C) if under the salary reduction agreement such contribution is made pursuant to a one-time irrevocable election made by the employee at the time of initial eligibility to participate in the agreement or is made pursuant to a similar arrangement involving a one-time irrevocable election specified in regulations.
(4)
Cost-of-living adjustment
(5)
Disregard of community property laws
(6)
Coordination with section 72
(7)
Special rule for certain organizations
(A)
In general
In the case of a qualified employee of a qualified organization, with respect to employer contributions described in paragraph (3)(C) made by such organization, the limitation of paragraph (1) for any taxable year shall be increased by whichever of the following is the least:
(i)
$3,000,
(ii)
$15,000 reduced by the sum of—
(I)
the amounts not included in gross income for prior taxable years by reason of this paragraph, plus
(II)
the aggregate amount of designated Roth contributions (as defined in section 402A(c)) permitted for prior taxable years by reason of this paragraph, or
(iii)
the excess of $5,000 multiplied by the number of years of service of the employee with the qualified organization over the employer contributions described in paragraph (3) made by the organization on behalf of such employee for prior taxable years (determined in the manner prescribed by the Secretary).
(B)
Qualified organization
(C)
Qualified employee
(D)
Years of service
(8)
Matching contributions on behalf of self-employed individuals not treated as elective employer contributions
(h)
Special rules for simplified employee pensions
For purposes of this chapter—
(1)
In general
Except as provided in paragraph (2), contributions made by an employer on behalf of an employee to an individual retirement plan pursuant to a simplified employee pension (as defined in section 408(k))—
(A)
shall not be treated as distributed or made available to the employee or as contributions made by the employee,
(B)
if such contributions are made pursuant to an arrangement under section 408(k)(6) under which an employee may elect to have the employer make contributions to the simplified employee pension on behalf of the employee, shall not be treated as distributed or made available or as contributions made by the employee merely because the simplified employee pension includes provisions for such election, and
(C)
in the case of any contributions pursuant to a simplified employer pension which are made to an individual retirement plan designated as a Roth IRA, such contribution shall not be excludable from gross income.
(2)
Limitations on employer contributions
Contributions made by an employer to a simplified employee pension with respect to an employee for any year shall be treated as distributed or made available to such employee and as contributions made by the employee to the extent such contributions exceed the lesser of—
(A)
25 percent of the compensation (within the meaning of section 414(s)) from such employer includible in the employee’s gross income for the year (determined without regard to the employer contributions to the simplified employee pension), or
(B)
the limitation in effect under section 415(c)(1)(A), reduced in the case of any highly compensated employee (within the meaning of section 414(q)) by the amount taken into account with respect to such employee under section 408(k)(3)(D).
(3)
Distributions
(i)
Treatment of self-employed individuals
(j)
Effect of disposition of stock by plan on net unrealized appreciation
(1)
In general
(2)
Transaction to which subsection applies
This subsection shall apply to any transaction in which—
(A)
the plan trustee exchanges the plan’s securities of the employer corporation for other such securities, or
(B)
the plan trustee disposes of securities of the employer corporation and uses the proceeds of such disposition to acquire securities of the employer corporation within 90 days (or such longer period as the Secretary may prescribe), except that this subparagraph shall not apply to any employee with respect to whom a distribution of money was made during the period after such disposition and before such acquisition.
(k)
Treatment of simple retirement accounts
(l)
Distributions from governmental plans for health and long-term care insurance
(1)
In general
(2)
Limitation
(3)
Distributions must otherwise be includible
(A)
In general
(B)
Application of section 72
(4)
Definitions
For purposes of this subsection—
(A)
Eligible retirement plan
(B)
Eligible retired public safety officer
(C)
Public safety officer
(D)
Qualified health insurance premiums
(5)
Special rules
For purposes of this subsection—
(A)
Direct payment to insurer permitted
(i)
In general
(ii)
Reporting
(B)
Related plans treated as 1
(6)
Election described
(A)
In general
(B)
Special rule
(7)
Coordination with medical expense deduction
(8)
Coordination with deduction for health insurance costs of self-employed individuals
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cite as: 26 USC 402