26 USC 410 - Minimum participation standards

U.S Code last checked for updates: Apr 29, 2024

§ 410.

Minimum participation standards

(a)

Participation

(1)

Minimum age and service conditions

(A)

General rule

A trust shall not constitute a qualified trust under section 401(a) if the plan of which it is a part requires, as a condition of participation in the plan, that an employee complete a period of service with the employer or employers maintaining the plan extending beyond the later of the following dates—

(i)

the date on which the employee attains the age of 21; or

(ii)

the date on which he completes 1 year of service.

(B)

Special rules for certain plans

(i)

In the case of any plan which provides that after not more than 2 years of service each participant has a right to 100 percent of his accrued benefit under the plan which is nonforfeitable (within the meaning of section 411) at the time such benefit accrues, clause (ii) of subparagraph (A) shall be applied by substituting “2 years of service” for “1 year of service”.

(ii)

In the case of any plan maintained exclusively for employees of an educational institution (as defined in section 170(b)(1)(A)(ii)) by an employer which is exempt from tax under section 501(a) which provides that each participant having at least 1 year of service has a right to 100 percent of his accrued benefit under the plan which is nonforfeitable (within the meaning of section 411) at the time such benefit accrues, clause (i) of subparagraph (A) shall be applied by substituting “26” for “21”. This clause shall not apply to any plan to which clause (i) applies.

(2)

Maximum age conditions

(3)

Definition of year of service

(A)

General rule

(B)

Seasonal industries

(C)

Hours of service

(D)

Maritime industries

(4)

Time of participation

A plan shall be treated as not meeting the requirements of paragraph (1) unless it provides that any employee who has satisfied the minimum age and service requirements specified in such paragraph, and who is otherwise entitled to participate in the plan, commences participation in the plan no later than the earlier of—

(A)

the first day of the first plan year beginning after the date on which such employee satisfied such requirements, or

(B)

the date 6 months after the date on which he satisfied such requirements,

unless such employee was separated from the service before the date referred to in subparagraph (A) or (B), whichever is applicable.

(5)

Breaks in service

(A)

General rule

(B)

Employees under 2-year 100 percent vesting

(C)

1-year break in service

(D)

Nonvested participants

(i)

In general

For purposes of paragraph (1), in the case of a nonvested participant, years of service with the employer or employers maintaining the plan before any period of consecutive 1-year breaks in service shall not be required to be taken into account in computing the period of service if the number of consecutive 1-year breaks in service within such period equals or exceeds the greater of—

(I)

5, or

(II)

the aggregate number of years of service before such period.

(ii)

Years of service not taken into account

(iii)

Nonvested participant defined

(E)

Special rule for maternity or paternity absences

(i)

General rule

In the case of each individual who is absent from work for any period—

(I)

by reason of the pregnancy of the individual,

(II)

by reason of the birth of a child of the individual,

(III)

by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or

(IV)

for purposes of caring for such child for a period beginning immediately following such birth or placement,

the plan shall treat as hours of service, solely for purposes of determining under this paragraph whether a 1-year break in service (as defined in section 411(a)(6)(A)) has occurred, the hours described in clause (ii).

(ii)

Hours treated as hours of service

The hours described in this clause are—

(I)

the hours of service which otherwise would normally have been credited to such individual but for such absence, or

(II)

in any case in which the plan is unable to determine the hours described in subclause (I), 8 hours of service per day of such absence,

except that the total number of hours treated as hours of service under this clause by reason of any such pregnancy or placement shall not exceed 501 hours.

(iii)

Year to which hours are credited

The hours described in clause (ii) shall be treated as hours of service as provided in this subparagraph—

(I)

only in the year in which the absence from work begins, if a participant would be prevented from incurring a 1-year break in service in such year solely because the period of absence is treated as hours of service as provided in clause (i); or

(II)

in any other case, in the immediately following year.

(iv)

Year defined

(v)

Information required to be filed

A plan shall not fail to satisfy the requirements of this subparagraph solely because it provides that no credit will be given pursuant to this subparagraph unless the individual furnishes to the plan administrator such timely information as the plan may reasonably require to establish—

(I)

that the absence from work is for reasons referred to in clause (i), and

(II)

the number of days for which there was such an absence.

(b)

Minimum coverage requirements

(1)

In general

A trust shall not constitute a qualified trust under section 401(a) unless such trust is designated by the employer as part of a plan which meets 1 of the following requirements:

(A)

The plan benefits at least 70 percent of employees who are not highly compensated employees.

(B)

The plan benefits—

(i)

a percentage of employees who are not highly compensated employees which is at least 70 percent of

(ii)

the percentage of highly compensated employees benefiting under the plan.

(C)

The plan meets the requirements of paragraph (2).

(2)

Average benefit percentage test

(A)

In general

A plan shall be treated as meeting the requirements of this paragraph if—

(i)

the plan benefits such employees as qualify under a classification set up by the employer and found by the Secretary not to be discriminatory in favor of highly compensated employees, and

(ii)

the average benefit percentage for employees who are not highly compensated employees is at least 70 percent of the average benefit percentage for highly compensated employees.

(B)

Average benefit percentage

(C)

Benefit percentage

For purposes of this paragraph—

(i)

In general

(ii)

Period for computing percentage

At the election of an employer, the benefit percentage for any plan year shall be computed on the basis of contributions or benefits for—

(I)

such plan year, or

(II)

any consecutive plan year period (not greater than 3 years) which ends with such plan year and which is specified in such election.

An election under this clause, once made, may be revoked or modified only with the consent of the Secretary.

(D)

Employees taken into account

For purposes of determining who is an employee for purposes of determining the average benefit percentage under subparagraph (B)—

(i)

except as provided in clause (ii), paragraph (4)(A) shall not apply, or

(ii)

if the employer elects, paragraph (4)(A) shall be applied by using the lowest age and service requirements of all qualified plans maintained by the employer.

(E)

Qualified plan

(3)

Exclusion of certain employees

For purposes of this subsection, there shall be excluded from consideration—

(A)

employees who are included in a unit of employees covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representatives and one or more employers, if there is evidence that retirement benefits were the subject of good faith bargaining between such employee representatives and such employer or employers,

(B)

in the case of a trust established or maintained pursuant to an agreement which the Secretary of Labor finds to be a collective bargaining agreement between air pilots represented in accordance with title II of the Railway Labor Act and one or more employers, all employees not covered by such agreement, and

(C)

employees who are nonresident aliens and who receive no earned income (within the meaning of section 911(d)(2)) from the employer which constitutes income from sources within the United States (within the meaning of section 861(a)(3)).

Subparagraph (A) shall not apply with respect to coverage of employees under a plan pursuant to an agreement under such subparagraph. For purposes of subparagraph (B), management pilots who are not represented in accordance with title II of the Railway Labor Act shall be treated as covered by a collective bargaining agreement described in such subparagraph if the management pilots manage the flight operations of air pilots who are so represented and the management pilots are, pursuant to the terms of the agreement, included in the group of employees benefitting under the trust described in such subparagraph. Subparagraph (B) shall not apply in the case of a plan which provides contributions or benefits for employees whose principal duties are not customarily performed aboard an aircraft in flight (other than management pilots described in the preceding sentence).

(4)

Exclusion of employees not meeting age and service requirements

(A)

In general

If a plan—

(i)

prescribes minimum age and service requirements as a condition of participation, and

(ii)

excludes all employees not meeting such requirements from participation,

then such employees shall be excluded from consideration for purposes of this subsection.

(B)

Requirements may be met separately with respect to excluded group

(C)

Requirements not treated as being met before entry date

(5)

Line of business exception

(A)

In general

(B)

Plan must be nondiscriminatory

(6)

Definitions and special rules

For purposes of this subsection—

(A)

Highly compensated employee

(B)

Aggregation rules

An employer may elect to designate—

(i)

2 or more trusts,

(ii)

1 or more trusts and 1 or more annuity plans, or

(iii)

2 or more annuity plans,

as part of 1 plan intended to qualify under section 401(a) to determine whether the requirements of this subsection are met with respect to such trusts or annuity plans. If an employer elects to treat any trusts or annuity plans as 1 plan under this subparagraph, such trusts or annuity plans shall be treated as 1 plan for purposes of section 401(a)(4).

(C)

Special rules for certain dispositions or acquisitions

(i)

In general

If a person becomes, or ceases to be, a member of a group described in subsection (b), (c), (m), or (o) of section 414, then the requirements of this subsection shall be treated as having been met during the transition period with respect to any plan covering employees of such person or any other member of such group if—

(I)

such requirements were met immediately before each such change, and

(II)

the coverage under such plan is not significantly changed during the transition period (other than by reason of the change in members of a group) or such plan meets such other requirements as the Secretary may prescribe by regulation.

(ii)

Transition period

For purposes of clause (i), the term “transition period” means the period—

(I)

beginning on the date of the change in members of a group, and

(II)

ending on the last day of the 1st plan year beginning after the date of such change.

(D)

Special rule for certain employee stock ownership plans

A trust which is part of a tax credit employee stock ownership plan which is the only plan of an employer intended to qualify under section 401(a) shall not be treated as not a qualified trust under section 401(a) solely because it fails to meet the requirements of this subsection if—

(i)

such plan benefits 50 percent or more of all the employees who are eligible under a nondiscriminatory classification under the plan, and

(ii)

the sum of the amounts allocated to each participant’s account for the year does not exceed 2 percent of the compensation of that participant for the year.

(E)

Eligibility to contribute

(F)

Employers with only highly compensated employees

(G)

Regulations

(c)

Application of participation standards to certain plans

(1)

The provisions of this section (other than paragraph (2) of this subsection) shall not apply to—

(A)

a governmental plan (within the meaning of section 414(d)),

(B)

a church plan (within the meaning of section 414(e)) with respect to which the election provided by subsection (d) of this section has not been made,

(C)

a plan which has not at any time after September 2, 1974, provided for employer contributions, and

(D)

a plan established and maintained by a society, order, or association described in section 501(c)(8) or (9) if no part of the contributions to or under such plan are made by employers of participants in such plan.

(2)

A plan described in paragraph (1) shall be treated as meeting the requirements of this section for purposes of section 401(a), except that in the case of a plan described in subparagraph (B), (C), or (D) of paragraph (1), this paragraph shall apply only if such plan meets the requirements of section 401(a)(3) (as in effect on September 1, 1974).

(d)

Election by church to have participation, vesting, funding, etc., provisions apply

(1)

In general

(2)

Election irrevocable

(Added Pub. L. 93–406, title II, § 1011, Sept. 2, 1974, 88 Stat. 898; amended Pub. L. 94–455, title XIX, §§ 1901(a)(61), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1774, 1834; Pub. L. 96–605, title II, § 225(a), Dec. 28, 1980, 94 Stat. 3529; Pub. L. 97–34, title I, § 111(b)(4), Aug. 13, 1981, 95 Stat. 194; Pub. L. 98–397, title II, § 202(a), (d)(1), (e)(1), Aug. 23, 1984, 98 Stat. 1436–1438; Pub. L. 99–509, title IX, § 9203(a)(2), Oct. 21, 1986, 100 Stat. 1979; Pub. L. 99–514, title XI, §§ 1112(a), 1113(c), (d)(A), Oct. 22, 1986, 100 Stat. 2440, 2447; Pub. L. 100–647, title I, § 1011(h)(1), (2), (11), title III, § 3021(a)(13)(B), Nov. 10, 1988, 102 Stat. 3464, 3467, 3631; Pub. L. 101–239, title VII, § 7841(d)(6), Dec. 19, 1989, 103 Stat. 2428; Pub. L. 105–34, title XV, § 1505(a)(3), Aug. 5, 1997, 111 Stat. 1063; Pub. L. 109–280, title IV, § 402(h)(1), Aug. 17, 2006, 120 Stat. 927.)

cite as: 26 USC 410