Navigating Pension and Annuity Payments General Rule and Taxation Guidelines December 18, 2017 By Carol V. Calhoun Counsel, Venable LLP CVCalhoun@Venable.com 202.344.4715

Introduction Availability of distributions, forms of distributions, taxation of distributions, and reporting and withholding on distributions vary widely depending on: What type of plan or arrangement are we dealing with? What type of contributions have been made to that plan or arrangement?

Types of Plans

Employer plans with special tax benefits Types of Plans Qualified Retirement Plans 403(b) Plans 457(b) Plans Employer plans with special tax benefits

Other plans Types of Plans Private Annuities Individual Retirement Accounts (IRAs) Nonqualified Deferred Compensation Plans for Top Employees Other plans

Qualified plans

Qualified Plans Pension plans Profit sharing plans Stock bonus plans

Qualified Plans Pension Plans Intended to provide benefits, typically for life, after retirement Typical types: Defined benefit plans Money purchase plans

Qualified Plans Pension Plans Normal form of benefit must be: Life annuity if the participant is unmarried. Qualified joint and survivor annuity if the participant is married. Electing out of the normal form requires spousal consent if the participant is married.

Qualified Plans Pension Plans – Defined Benefit Plans Plan defines benefits, not contributions, e.g.: Annual benefit is X% of compensation times years of service Annual benefit is $X per year of service While defined benefit plans used to be the most common form of plan, they have now become far less common except for governmental employers and multiemployer (industry-wide union- negotiated) plans

Qualified Plans Pension Plans – Money Purchase Plans Employer contributes a fixed percentage of compensation each year. Benefit is the amount contributed, plus earnings, at the time of retirement. Money purchase plans used to be far more common before the implementation of 401(k) plans

Qualified Plans Profit-sharing and Stock Bonus Plans These two types of plans are very similar, except that stock bonus plans emphasize investment in employer stock. Features: Benefits are equal to contributions made, plus earnings. Employer contributions need not be specified in the plan, but can be up to annual employer discretion. In spite of the name, profit-sharing plans do not have to be based on profits.

Other employer tax advantaged plans

Other employer tax-advantaged plans 403(b) plans 457(b) plans

Other employer tax-advantaged plans 403(b) Plans Available only to employees of organizations tax-exempt under Internal Revenue Code section 501(c)(3) and public schools and universities May be either money purchase or profit-sharing plans Money is put into a custodial account for mutual funds, or an annuity, rather than a trust

Other employer tax-advantaged plans 457(b) Plans Permitted for governmental and tax-exempt employers, but they are structured very differently for each Governmental: Rank and file employees may participate Assets are held in trust for the participants Tax-exempts Only a select group of management and highly compensated employees may participate Either the plan is unfunded, or plan assets are held in a trust that is subject to the claims of the employer’s creditors

457(b) plans Permitted for governmental and tax-exempt employers, but they are structured very differently for each Governmental: Rank and file employees may participate Assets are held in trust for the participants Tax-exempts Only a select group of management and highly compensated employees may participate Either the plan is unfunded, or plan assets are held in a trust that is subject to the claims of the employer’s creditors

Other types of arrangements

Other types of arrangements Nonqualified deferred compensation plans for top employees Individual retirement accounts or annuities (IRAs) Private annuities

Types of Contributions

Types of Contributions Elective deferrals Contributions to regular IRAs “Picked up” contributions Roth contributions After-tax contributions Employer matches Other employer contributions Rollovers

Types of Contributions Elective deferrals Contributions made from an employee’s pay that are tax- deferred. Can be made (to the extent permitted by the plan terms) to: Profit-sharing and stock bonus plans (known as 401(k) contributions) 403(b) plans 457(b) plans

Types of Contributions Contributions to regular IRAs Contributions are deductible when made, but benefits are taxable.

Types of Contributions Picked up contributions Contributions that are either required, or made pursuant to an employee’s one-time election on initial employment or first participation in an employer retirement plan. Portion of the employee’s pay that is contributed is tax-deferred. Can be made only to plans of governmental employers

Types of Contributions Roth contributions Amounts are after-tax when contributed, but contributions plus earnings are tax-free when distributed, if certain requirements are met. Can be made (to the extent permitted by the plan terms) to: Profit-sharing and stock bonus plans 403(b) plans 457(b) plans Roth IRAs

Types of Contributions After-tax contributions Amounts are after-tax when contributed. Contributions (but not earnings) are tax-free when distributed. Can be made (to the extent permitted by the plan terms) to: Pension plans Profit-sharing and stock bonus plans 403(b) plans IRAs Commercial annuities

Types of Contributions Employer matches Depending on the plan terms, an employer may match elective deferrals, Roth contributions, and/or after-tax contributions In profit-sharing and stock bonus plans (including 403(b) plans that take this form), the employer has a choice as to whether to state the rate of match in the plan or determine it on a year by year basis In pension plans, the rate of match must be stated in the plan While 457(b) plans themselves rarely include a match, some governmental employers use a qualified plan to match 457(b) contributions

Types of Contributions Other employer contributions In defined benefit plans, the rate of employer contributions is determined based on actuarial factors or in the case of collectively bargained plans, potentially in the collective bargaining agreement In money purchase plans, the rate of employer contributions must be stated in the plan document In profit-sharing and stock bonus plans, the rate may either be stated in the plan document or determined from year to year.

Types of Contributions Rollover contributions Can be made from a qualified plan, 403(b) plan, governmental 457(b) plan, or IRA, if the participant is entitled to a distribution. Can be made to any of the above types of plan that agrees to accept them.

Limitations on Distributions

Limitations on Distributions The Internal Revenue Code imposes limits on both how early and how late distributions can be made. Limitations on early distributions fall into two categories: Prohibitions on distributions, which vary according to the type of plan and type of contribution Situations in which distributions will give rise to a penalty tax These two limitations are often confused. It is important to remember that a distribution which is permitted under a plan may still give rise to a penalty tax. Limitations on late distributions also fall into two categories: Limitations on delays in benefits without a participant’s consent Required minimum distributions

Limitations on Distributions Prohibitions on early distributions – all plans Except to the extent that restrictions on late distributions apply, a plan’s terms can place restrictions on early distributions. For example, although a pension plan is permitted to offer in-service distributions beginning at age 62, it can elect to provide only for distributions beginning after termination of employment.

Limitations on Distributions Prohibitions on early distributions – 401(k) contributions and elective deferrals to 403(b) plans Distributions cannot be made before: Termination of employment (by death, disability, retirement or other severance from employment). The plan terminates and no successor defined contribution plan is established or maintained by the employer. Age 59½. Hardship. An exception is provided in the case of 401(k) deferrals which violate certain rules prohibiting discrimination in favor of highly compensated employees. Those deferrals can be distributed immediately.

Limitations on Distributions Prohibitions on early distributions – 457(b) plans Distributions cannot be made before: Termination of employment (by death, disability, retirement or other severance from employment). An unforeseeable emergency. In the case of a governmental 457(b) plan, a one-time withdrawal if the account value is $5,000 or less, there have been no contributions to the account for the two-year period ending on the date of the distribution, and no prior withdrawals of this type have been made. Termination of the plan

Limitations on Distributions Prohibitions on early distributions – other employer contributions (matching or nonelective) to profit-sharing or stock bonus plans The plan must provide that contributions can be distributed only after: A fixed number of years. The attainment of a stated age. Upon the prior occurrence of some event such as layoff, illness, disability, retirement, death, hardship, or severance of employment.

Limitations on Distributions Prohibitions on early distributions – employer and picked up contributions to pension plans The plan must provide that contributions can be distributed only after the earlier of: Age 62 Termination of employment (by death, disability, early retirement or other severance from employment). Moreover, the normal form of benefits must be: A life annuity in the case of an unmarried participant. A qualified joint and survivor annuity in the case of a married participant. A married participant can generally elect out of the qualified joint and survivor annuity only with the consent of the spouse.

Limitations on Distributions Transfers between plans Rollovers by participants are available only when the participant is entitled to a distribution under the above rules. Employer-initiated direct transfers between plans are not treated as distributions, and can be made at any time. For example, an employer that acquires a subsidiary with a 401(k) plan can transfer all of the balances in that plan to the employer’s own plan.

Limitations on Distributions Different rules on penalties apply to: Employer plans other than 457(b) plans and Roth accounts 457(b) plans Regular IRAs Roth IRAs and Roth accounts in employer plans Commercial annuities Penalties for early distributions

Limitations on Distributions Penalties for early distributions – employer plans other than 457(b) plans and Roth accounts General rule: The taxable portion of distributions before age 59½ is subject to an additional 10% tax. Common exceptions: Reversing automatic enrollment Corrective distributions for violation of certain limits on contributions Death Total and permanent disability Series of substantially equal payments Payments based on termination of employment after age 55 (50 for public safety employees) To the spouse under a qualified domestic relations order

Limitations on Distributions Penalties for early distributions –457(b) plans Penalties do not apply to early distributions from 457(b) plans, except to the extent the plan has received a rollover from a different type of plan.

Limitations on Distributions Penalties for early distributions – Regular IRAs General rule: The taxable portion of distributions before age 59½ is subject to an additional 10% tax. Common exceptions: Death Total and permanent disability Series of substantially equal payments Qualified higher education expenses Qualified first-time homebuyers, up to $10,000

Limitations on Distributions Penalties for early distributions – Roths The earnings on a Roth are taxable unless: The distribution is taken after age 59½, and The first distribution is taken at least five years after the first contribution. Because only the taxable portion of a distribution from an employer plan or IRA is subject to the 10% additional tax, only the earnings on a Roth, not the amount originally contributed, is subject to the 10% penalty.

Limitations on Distributions Penalties for early distributions – commercial annuities General rule: The taxable portion of distributions before age 59½ is subject to an additional 10% tax. Because only the taxable portion of a distribution from a commercial annuity is subject to the 10% additional tax, only the earnings, not the amount originally contributed, is subject to the 10% penalty. Exceptions to penalty: Death Total and permanent disability Substantially equal payments

Limitations on Distributions Limitations on late distributions without the participant’s consent Unless the participant elects otherwise, benefits under a qualified plan must begin within 60 days after the close of the latest plan year in which the participant: turns 65 (or the plan’s normal retirement age, if earlier); completes 10 years of plan participation; or terminates service with the employer.

Limitations on Distributions Required minimum distributions Employer plans with special tax benefits and regular IRAs (but not Roths or commercial annuities) are subject to minimum distribution requirements. Separate rules apply to lifetime distributions and distributions after death.

Limitations on Distributions Required minimum distributions – lifetime The first RMD payment must generally be made by April 1 of the year following the participant turns 70½. The first RMD payment from an employer plan can be postponed until April 1 of the year following the participant’s termination of employment, if the participant is not a 5% owner of the employer. This rule does not apply to IRAs. Subsequent distributions must be taken by December 31 each year. Amounts must be distributed over the life or life expectancy of an unmarried participant, or over the joint lives or life expectancies of a married participant and spouse.

Limitations on Distributions Required minimum distributions – after death Individual beneficiaries other than a spouse can: withdraw the entire account balance by the end of the 5th year following the account owner’s death, if the account owner died before the required beginning date, or calculate RMDs using the distribution period from the Single Life Table based on: If the owner died after RMDs began, the longer of the: beneficiary’s remaining life expectancy determined in the year following the year of the owner’s death reduced by one for each subsequent year or owner’s remaining life expectancy at death, reduced by one for each subsequent year If the account owner died before RMDs began, the beneficiary’s age at year-end following the year of the owner’s death, reducing the distribution period by one for each subsequent year.

Limitations on Distributions Required minimum distributions – after death (continued) Spouses who are the sole designated beneficiary can: treat an IRA as their own, or base RMDs on their own current age, base RMDs on the decedent’s age at death, reducing the distribution period by one each year, or withdraw the entire account balance by the end of the 5th year following the account owner’s death, if the account owner died before the required beginning date. If the account owner died before the required beginning date, the surviving spouse can wait until the owner would have turned 70½ to begin receiving RMDs.

Taxation of Distributions

Taxation of Distributions General rules General rule What has been taxed before is not taxed again. All other distributions, to the extent not rolled over, are taxed on distribution. Money rolled over retains its character (previously taxed or not) from the prior plan. Special rule for Roths: If distribution is made after age 59½, and first distribution is made at least five years after first contribution, then even the earnings (which were not taxed before) are not taxed.

Taxation of Distributions Plans with no after-tax contributions If no after-tax contributions have been made to a plan, then all distributions are taxable. For example, in a nonqualified employer plan, typically there are no after-tax employee contributions. In many instances, an individual will not have made after-tax contributions to an employer plan or a regular IRA.

Taxation of Distributions Total distribution without rollover – employer plan non- Roth A has a $100,000 account balance in a plan, to which they have made both elective deferrals and after- tax (not Roth) contributions. The total of after-tax contributions made is $20,000. A receives the entire amount as a lump sum, and does not roll it over. A is taxed on the $100,000 received, minus the $20,000 previously taxed, or $80,000.

Taxation of Distributions Total distribution – commercial annuity A has paid premiums of $80,000 for a commercial annuity. They cash in the annuity and receive $100,000. The tax is $100,000 minus $80,000, or $20,000.

Taxation of Distributions Partial distribution without rollover – employer plan or regular IRA Distribution will include a pro rata share of both after-tax and pretax amounts. Example: A has a pretax account with $70,000 in it and an after-tax account to which they had made $38,000 in contributions. The after-tax account also had $12,000 in earnings. A cannot elect to take a distribution of $50,000 from the after-tax account (and thus pay tax on only the $12,000 in earnings). Instead, a $50,000 distribution will be treated as coming ratably from pretax and after-tax amounts. Because 90% of the amounts in the plan are taxable (the pretax amounts plus the earnings on the after- tax amounts), 90% ($45,000) of the distribution will be taxable, and only 10% ($5,000) will be tax- free.

Taxation of Distributions Distribution followed by partial rollover – employer plan or regular IRA Amount rolled over will be treated as first coming from taxable amounts Example: A has a $100,000 account balance in a 401(k) plan, to which they have made both elective deferrals and after-tax (not Roth) contributions. The total of after-tax contributions made is $20,000. A takes a complete withdrawal, and rolls over $80,000 of it. A is not subject to tax, because the amount rolled over is at least equal to the portion of the distribution that would otherwise be taxable.

Taxation of Distributions Distribution followed by partial rollover – employer plan or regular IRA – planning opportunities In our prior example, if A takes a distribution of $10,000, then $8,000 would be taxable. However, if A takes a distribution of $50,000 and rolls over $40,000 of it, then none of it is taxable. If A takes a complete distribution, they can roll the $80,000 taxable amount to a regular IRA, and the $20,000 nontaxable amount to a Roth IRA. If the conditions are met for nontaxable withdrawals from the Roth IRA, A can later withdraw the $20,000 plus earnings from the Roth IRA tax-free.

Taxation of Distributions Partial distribution – Roth account A Roth account in an employer plan is treated separately from other accounts in the plan. Example: A has a Roth account with $50,000 in it. A also has a pretax account with $70,000 in it. A takes a complete distribution ($50,000) from the Roth account, at a time when they meet the conditions for tax-free withdrawals from the Roth account. The entire $50,000 will be tax-free.

Taxation of Distributions Partial distribution – commercial annuity Distribution comes first out of amounts not previously taxed. Thus, the lesser of the entire distribution, or the excess of the face value over the amount paid, is taxed. Example: A paid $80,000 for a commercial annuity. It now has a face value of $100,000. A takes a distribution of $30,000. A is taxed on the $20,000 excess of the $100,000 face value over the $80,000 paid. The other $10,000 is not taxed.

Taxation of Distributions Disability pension If a pension plan includes a disability benefit, a disabled participant must include in income any disability pension received under the plan that is paid for by the employer. Even if the participant has made after-tax contributions to the plan, in almost all instances those contributions will not reduce the taxable amount of the disability pension, but will entirely be allocated to the amounts received after minimum retirement age. Minimum retirement age generally is the age at which the participant could first receive a pension or annuity if they are not disabled. The participant must report taxable disability payments as wages on line 7 of Form 1040 or Form 1040A until minimum retirement age.

Taxation of Distributions Disability pension If a pension plan includes a disability benefit, a disabled participant must include in income any disability pension received under the plan that is paid for by the employer. Even if the participant has made after-tax contributions to the plan, in almost all instances those contributions will not reduce the taxable amount of the disability pension, but will entirely be allocated to the amounts received after minimum retirement age. Minimum retirement age generally is the age at which the participant could first receive a pension or annuity if they are not disabled. The participant must report taxable disability payments as wages on line 7 of Form 1040 or Form 1040A until minimum retirement age.

Taxation of Distributions Periodic payments (other than disability) Regardless of whether an employer plan or commercial annuity is involved, payments are allocated pro rata between pretax and after-tax amounts. Example: A has made $20,000 in after- tax contributions to an annuity. The annuity will pay out $10,000 a year for ten years. $2,000 of each of those ten payments will be considered to come from the after-tax amounts (and thus to be tax-free), and the other $8,000 of each payment will be taxable.

Taxation of Distributions Lifetime payments As with periodic payments, the idea is that a pro rata amount of each payment is considered to come from any after-tax amounts. The issue is determining how many payments there will be. Depending on the circumstances, you may determine this in one of two ways: The simplified method The general rule

Taxation of Distributions The simplified rule is available if: The pension or annuity payments come from: A qualified employee plan, or A 403(b) plan. On the annuity starting date, at least one of the following conditions applies: The participant is under age 75. The participant is entitled to less than 5 years of guaranteed payments. A “guaranteed payment” is a payment that will be made even if the participant dies. For example, a pension might take the form of an annuity for life plus ten years certain. Payments would continue for the participant’s life. If the participant died within ten years, payments would continue to the beneficiary for the remainder of the ten years. Because there are ten years of guaranteed payments, the simplified method would be available only if the participant was under age 75 on the annuity starting date. Note: The rules for the simplified method were different in some past years. The method that applied on the annuity starting date must be continued, even if it is different from what would apply today. Lifetime payments - availability of the simplified rule

Taxation of Distributions Lifetime payments - application of the simplified rule Publication 575 provides a worksheet for calculating taxable and nontaxable distributions under the simplified method.

Taxation of Distributions Lifetime payments - availability of the general rule If a distribution is not subject to the simplified rule, as described above, it is subject to the general rule. For example, distributions from commercial annuities are subject to the general rule.

Taxation of Distributions Lifetime payments - application of the general rule Calculating taxable and nontaxable distributions under the general rule is much more complex than under the simplified method. However, Publication 939 provides a step-by-step calculation. For a taxpayer who has trouble making the calculations, the IRS will issue a ruling for a fee. Publication 939 gives details on how to request such a ruling.

Reporting and Withholding

Reporting and Withholding General rules All distributions, whether or not taxable, must be reported. (This does not apply to employer- initiated plan-to-plan transfers, which are not considered distributions.) Only the taxable portion of distributions is subject to withholding.

Reporting and Withholding Eligible rollover distributions are subject to 20% withholding. Other nonperiodic payments (withdrawals) are subject to 10% withholding. Periodic payments are subject to income tax withholding as if they were wage payments. In most instances, a participant can opt out of withholding on distributions using Form W-P. Exceptions: A participant cannot elect out of withholding on eligible rollover distributions. Payments from nonqualified employer plans are treated as wages, and a participant cannot elect out of withholding.

Reporting and Withholding Withholding – planning opportunities If a participant takes an eligible rollover distribution in cash, 20% will be withheld. If the participant than wants to defer taxes by rolling over the money, the participant must make up that 20% from other sources. However, if the participant elects to have the money directly rolled over from the old plan to the new plan, withholding will not apply. In many instances, the amount of withholding will not be enough to pay the tax that will ultimately be due. To avoid the need to pay estimated taxes, or the penalties that will apply to underwithholding, the participant can elect to have additional amounts withheld.

Reporting and Withholding Reporting by the plan Distributions from employer tax favored plans (other than nongovernmental 457(b) plans), IRAs, and commercial annuities are all reported on Form 1099-R. Distributions from nonqualified plans for employees and nongovernmental 457(b) plans are reported on Form W-2. Distributions from nonqualified plans for independent contractors are reported on Form 1099-MISC. For a foreign person who has provided your payer with Form W-8BEN, the payer instead will furnish a statement on Form 1042-S, Foreign Person’s U.S. Source Income Subject to Withholding.

Reporting and Withholding Reporting of distributions by the employee Distributions from the following are reported on Form 1040 line 7 as wages: Nonqualified employee plans. Nongovernmental 457(b) plans. Disability pensions received before minimum retirement age. Corrective distributions of excess salary deferrals or excess contributions to 401(k), 403(b) or 457(b) retirement plans. Further reporting may be required, and further taxes may be due, if a nonqualified plan does not meet the requirements of Internal Revenue Code 409A. However, those issues are beyond the scope of this discussion. IRAs are reported on line 15. Other pension and annuity distributions are reported on line 16. The gross amount goes on line 16a, and the taxable amount goes on line 16b.

Reporting and Withholding Reporting of withholding by the employee Federal income tax withheld is reported on Form 1040 line 64. State tax withheld is reported on Schedule A line 5a if the participant itemizes deductions. It is also reported on the participant’s state income tax return.

Conclusion

Conclusion Points to remember In determining the rules for pension and annuity distributions, you must consider both the type of plan and the type of contribution that gave rise to the distribution. Employer tax favored plans generally have rules on both how early and how late distributions can be received. Failing to follow these rules may give rise to penalties for the plan. Even a distribution that is permitted may be subject to an early distribution tax. The taxation of distributions, particularly lifetime distributions, can be quite complex. This affects not only the participant’s taxation, but the withholding required. Care must be taken to ensure that both the plan and the participant correctly report distributions. Points to remember

Questions/Contact Carol Calhoun is a member of Venable’s Employee Benefits and Executive Compensation practice. She has more than 30 years of private practice experience with employee benefits and insurance product taxation matters, including qualified retirement plans, health and welfare arrangements, executive compensation, and insurance and annuity products. Ms. Calhoun has significant experience with standard pension plans (both defined benefit and defined contribution), the full array of government plans (including 403(b) and 457), excess benefit plans, 401(k), cafeteria/flexible spending, and a wide variety of welfare (e.g., health, life, and disability) plans. Her clients include states, localities, and international organizations regarding their benefit plans. Ms. Calhoun also represents government plans themselves, and boards and agencies charged with administering such plans. Carol V. Calhoun Counsel, Venable LLP 202.344.4715 cvcalhoun@Venable.com