Relief from the Once-In-Always-In Condition for Excluding Part-Time Employee Deferrals under a 403(b) Plan (Notice 2018-95)

The IRS issued transition relief from the “once-in-always-in” condition for excluding part-time employees under Reg. §1.403(b)-5(b)(4)(iii)(B). Under the “once-in-always-in” exclusion condition, once an employee is eligible to make elective deferrals, the employee may not be excluded from making elective deferrals in any later exclusion year on the basis that the employee is a part-time employee.

Part-Time Employee Exclusion Conditions Under Final 403(b) Regulations

The Department of the Treasury and the IRS issued final regulations under Code Sec. 403(b) that were generally effective starting after 2008. Part of the final regulations include Reg. §1.403(b)-5(b)(4)(iii)(B) (1) and (2) covering the conditions that an employer must satisfy before excluding a part-time employee from the plan. The IRS parses these regulations to impose three separate conditions for an employee to be excluded—

(1) a “first-year” exclusion condition under which the employer must reasonably expect the employee to work fewer than 1,000 hours during the employee’s first year of employment;

(2) a “preceding-year” exclusion condition under which the employee must have actually worked fewer than 1,000 hours in the preceding 12-month period; and

(3) the “once-in-always-in” exclusion condition, under which the employee may be excluded under the part-time exclusion if and only if, in the employee’s first year of employment, the employee meets the first-year exclusion condition, and, in each exclusion year ending after the first year of employment, the employee has met the preceding-year exclusion condition.

The effect of the once-in-always-in exclusion condition is that once an employee does not meet the part-time exclusion conditions, whether in the initial year of employment or for any exclusion year, the employee may no longer be excluded from making elective deferrals under the part-time exclusion. Employers Surprised by Once-In-Always-In Condition

Employers requested transition relief because many were unaware that the part-time exclusion included the once-in-always-in exclusion condition. Many employers applied the first-year exclusion condition for an employee’s first year and applied the preceding-year exclusion condition separately for each succeeding exclusion year, but did not apply the once-in-always-in exclusion condition to prevent an employee who failed to meet either the first-year exclusion condition or the preceding-year exclusion condition from being excluded in all subsequent exclusion years.

Transition Relief for Once-In-Always-In Condition

The IRS is providing transition relief, including—

— operations relief for a transition period referred to as the “Relief Period,”

— relief regarding plan language, and

— a fresh-start opportunity after the “Relief Period” ends.

The operations “Relief Period” begins with tax years beginning after December 31, 2008. For plans with exclusion years based on plan years, the “Relief Period” ends for all employees on the last day of the last exclusion year that ends before December 31, 2019. For plans with exclusion years based on employee anniversary years, the “Relief Period” ends, with respect to any employee, on the last day of that employee’s last exclusion year that ends before December 31, 2019.

Notice 2018-95

Other References:

Code Sec. 403

CCH Reference – 2018FED ¶18,282.11

Tax Research Consultant

CCH Reference – TRC RETIRE: 69,150

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AUTHOR

CCHTaxGroup

All stories by: CCHTaxGroup