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Secure 2.0 Drafting Error Threatens Catch-Up Contributions

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What You Need to Know

  • It appears that a legislative drafting error, if uncorrected, could jeopardize the ability to make catch-up contributions to retirement accounts.
  • Experts say technical correction is likely, even in a closely divided Congress with a lot to do.

A major technical drafting error that made its way into the sweeping Secure 2.0 Act legislation would ban all retirement account catch-up contributions after 2024, according to retirement industry media reports that first emerged Tuesday afternoon.

As first reported by the American Retirement Association’s John Sullivan (formerly of ThinkAdvisor), the drafting error involves Section 603 of the Setting Every Community Up for Retirement Enhancement (Secure) 2.0 Act. This section of the law is intended to require that catch-up contributions be directed to post-tax Roth accounts in cases where the contributor earns more than $145,000 of FICA-covered wages.

But, as the ARA reports, it appears that the complex process of meshing the Secure 2.0 Act’s Roth catch-up requirement with the preexisting text of the Internal Revenue Code has resulted in the approval of statutory language that will, if not changed, entirely eliminate the opportunity for retirement savers to make catch-up contributions to either traditional or Roth-style accounts.

This outcome would represent a significant departure from the legislation’s stated intent, as among its many retirement focused-provisions, the Secure 2.0 Act significantly boosts 401(k) plan retirement account catch-up contribution limits. Specifically, the maximum limits are slated to increase from $7,500 in 2023 to $10,000 for taxpayers aged 60, 61, 62 or 63 for tax years beginning after 2024.

The catch-up contribution limit will be increased to $5,000 for SIMPLE retirement plans, and for IRAs, the $1,000 catch-up contribution limit will be indexed for inflation beginning in tax years after 2023. As noted, starting in tax years beginning after 2023, all catch-up contributions for those earning more than $145,000 will be treated as Roth contributions.

A Big Deal or Headline Hype?

Expert reactions were decidedly mixed as the ARA’s eye-grabbing headline made the rounds across the retirement planning industry on Tuesday afternoon.

Planning expert Ed Slott of Ed Slott and Co. tells ThinkAdvisor the issue amounts to a “technical error in the law that will be fixed.”

“I don’t think the plan catch-up provisions are at risk,” Slott says. “This provision is not effective until 2024, and it will be fixed by then.”

Brad Campbell, an attorney with Faegre Drinker and former head of the Department of Labor’s Employee Benefits Security Administration, is decidedly more concerned about the error and the likelihood of timely correction.

“Unfortunately, it’s likely to be very difficult to get a technical corrections bill passed through Congress, despite the obvious need to fix these errors,” Campbell says. “The House is going to very cautious in sending any tax-related bill to the Senate, as revenue measures must originate in the House. An opportunity to attach a corrections bill might come with the next ‘must pass’ issue, but the big picture politics associated with these debates make outcomes very uncertain. Just as passage of the [Secure 2.0 Act] came down to the wire, a corrections bill is fraught with difficulty.”

In the advocacy group’s original report, ARA CEO Brian Graff says a timely correction is critical, and he agrees that the real question is “when there will be a legislative vehicle in this Congress to get this done.”

In the meantime, Graff says, it is unclear to the ARA whether the Treasury Department has the regulatory authority to ignore the error.

Paul Richman, the Insured Retirement Institute’s chief government and political affairs officer, says that discovering inadvertent drafting technical mistakes is not uncommon after Congress enacts comprehensive legislation on the scale of the Secure 2.0 Act.

“Such errors are often corrected and are resolved through legislation that Congress will subsequently pass,” Richman says. “The U.S. Treasury Department and U.S. Internal Revenue Service are charged with implementing these portions of the new law. If an error is found to exist, IRI expects it will work with these agencies to find an appropriate solution to remedy any problem a technical error may have created.”

Richman says the IRI would also work to educate and inform Congress about solutions proposed to fix any technical errors.

“The provision related to catch-up contributions to retirement plans is not due to be implemented until 2024, so time is available, if needed, to address any identified and inadvertent technical drafting errors,” he adds.

Not the Only Apparent Drafting Issue

While definitely the most notable, this is not the first apparent drafting issue to be identified by retirement industry experts who are hard at work digesting the more than 300 pages of text that comprise the Secure 2.0 Act.

In various presentations he has given about the Secure 2.0 Act, Jeff Levine, Kitces.com’s lead financial planning nerd and Buckingham Wealth Partners’ chief planning officer, has pointed to an issue affecting the age at which certain savers must begin taking required minimum distributions from tax-qualified retirement accounts.

According to Levine and others, unless a technical or regulatory correction is issued, it appears that individuals born in 1959 will actually have two different RMD ages: 73 and 75. The issue, as Levine sees it, is that a person born in 1959 will both turn 73 before 2033 (i.e., in 2032) and turn 74 after 2032 (i.e., in 2033). This fact raises some uncertainty under Section 107 of the Secure 2.0 Act, which increases the RMD age to 73 starting on Jan. 1, 2023, and again to 75 starting on Jan. 1, 2033.

Levine sees this as a mistake in drafting, and with this particular RMD age issue still being a decade out, it’s “really not that important right now,” he says.

(Image: Shutterstock)