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ROTH CONTRIBUTIONS TO 401(k) PLANS

Effective January 1, 2006, a 401(k) plan may permit a participant to designate some or all of his pre-tax contributions as after-tax Roth contributions ("Roth Contributions"). Although Roth Contributions are treated as regular 401(k) contributions for most purposes, they are currently includible in gross income. However, a qualified distribution of Roth Contributions (and earnings) is excludable from gross income. Unlike a Roth IRA, there are no income limitations on who may make a Roth Contribution.

A plan must be amended if a plan sponsor wishes to allow for Roth Contributions. According to available information, the deadline for amending a plan is the last day of the first plan year in which the plan permits participants to make Roth Contributions. For example, if the Plan permits Roth Contributions during January of 2006 and the plan has a January 31 year end, the plan would need to be amended by January 31, 2006.

The following are the key features of the new Roth Contributions:

(1) The Roth Contributions must be designated irrevocably by the employee as a Roth Contribution.

(2) The Roth Contributions are includible in the employee’s income (e.g., by treating the contributions as being made on an after-tax basis).

(3) The Roth Contributions must be maintained by the plan in a separate account.

(4) The sum of the Roth Contributions and regular pre-tax 401(k) contributions may not exceed the annual limit on regular 401(k) contributions. ($15,000 in 2006 for a participant under age 50, $20,000 for a participant age 50 or over.)

(5) Roth Contributions may be rolled over to a Roth Contribution account in another 401(k) plan or to the participant's Roth IRA. (The IRS has not issued any guidance on how a rollover should be made. A rollover should not be made until such guidance is issued.)

(6) A qualified distribution of Roth Contributions (and earnings) is not taxable. A qualified distribution: (a) must be made more than five years after the first Roth Contribution is made, and (b) must be made:

(i) after the participant is age 59-1/2;

(ii) to a beneficiary after the death of the participant; or

(iii) on account of disability.

(7) Roth Contributions are subject to the qualified plan required minimum distribution rules (i.e., the age 70-1/2 rules). The required minimum distribution rules may be avoided by a rollover to a Roth IRA prior to attaining age 70-1/2.

(8) Roth Contributions are subject to the same limitations on withdrawal as regular 401(k) contributions (age 59-1/2, hardship).

Example 1. Mr. Jones is age 45 and elects to contribute $3,000 per month as a regular 401(k) contribution to his employer's 401(k) plan effective January 1, 2006. On April 30, 2006 after speaking with his tax advisor and making $12,000 in pre-tax contributions, he completes a new election form where he elects to contribute $1,000 per month as a Roth Contribution. At the end of July, 2006 his contributions must stop because he has reached the combined 401(k)/Roth limit of $15,000. (If Mr. Jones was age 50 or over the limit would be $20,000 in 2006.)

Example 2. Assume the same facts as Example 1 and that Mr. Smith has $35,000 in his Roth Contribution account at the end of 2007. In early 2008 he terminates and receives a distribution of his entire Roth Contribution account and does not rollover any potion of his Roth Contributions. The income earned on the Roth Contributions that is paid to him in 2008 will be taxable because the distribution was made less than five years after the first Roth Contribution was made. Assuming no exception applies to the early distribution penalty, an added tax of 10% will be paid on the income distributed.

Note. The IRS has issued little formal guidance regarding Roth Contributions. The foregoing is subject to change based on any regulations or other guidance provided by the IRS.

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