26 U.S.C. § 402 — Taxability of beneficiary of employees’

Page 1240 TITLE 26—INTERNAL REVENUE CODE § 402 ‘‘(1) for purposes of chapter 1 of the Internal Rev- enue Code of 1986 (relating to normal taxes and surtaxes), such regulations shall not apply before January 1, 1980; and ‘‘(2) for purposes of chapter 21 of such Code (relat- ing to Federal Insurance Contributions Act) and for purposes of chapter 24 of such Code (relating to col- lection of income tax at source on wages), such regu- lations shall not apply before the day on which such regulations are issued in final form. ‘‘(e) SALARY REDUCTION REGULATIONS DEFINED.—For purpose of this section, the term ‘salary reduction reg- ulations’ means regulations dealing with the includibility in gross income (at the time of contribu- tion) of amounts contributed to a plan which includes a trust that qualifies under section 401(a) [subsec. (a) of this section], or a plan described in section 403(a) or 405(a), including plans or arrangements described in subsection (b)(2), if the contribution is made under an arrangement under which the contribution will be made only if the employee elects to receive a reduction in his compensation or to forego an increase in his compensation, or under an arrangement under which the employee is permitted to elect to receive part of his compensation in one or more alternative forms (if one of such forms results in the inclusion of amounts in in- come under the Internal Revenue Code of 1986).’’ [Pub. L. 95–615, § 210(b), Nov. 8, 1978, 92 Stat. 3109, pro- vided that: ‘‘Section 5 of this Act [amending section 2006 of Pub. L. 93–406, set out above] shall not apply with respect to any type of plan for any period for which rules for that type of plan are provided by the Revenue Act of 1978 [Pub. L. 95–600, see Short Title of 1978 Amendment note set out under section 1 of this title].’’] INFLATION ADJUSTED ITEMS FOR CERTAIN YEARS Provisions relating to inflation adjustment of items in sections 25B, 45A, 45E, 72, 219, 401, 402, 402A, 404, 408, 408A, 409, 414 to 416, 430, 432, 457, and 664 of this title for certain years were contained in the following: 2025—Internal Revenue Notice 2024–80. 2024—Internal Revenue Notice 2023–75. 2023—Internal Revenue Notice 2022–55. 2022—Internal Revenue Notice 2021–61. 2021—Internal Revenue Notice 2020–79. 2020—Internal Revenue Notice 2019–59. 2019—Internal Revenue Notice 2018–83. 2018—Internal Revenue Notice 2017–64. 2017—Internal Revenue Notice 2016–62. 2016—Internal Revenue Notice 2015–75. 2015—Internal Revenue Notice 2014–70. 2014—Internal Revenue Notice 2013–73. 2013—Internal Revenue Notice 2012–67. 2012—Internal Revenue Notice 2011–90. 2011—Internal Revenue Notice 2010–78. 2010—Internal Revenue Notice 2009–94. 2009—Internal Revenue Notice 2008–102. 2008—Internal Revenue Notice 2007–87. 2007—Internal Revenue Notice 2006–98. 2006—Internal Revenue Notice 2005–75. 2005—Internal Revenue Notice 2004–72. 2004—Internal Revenue Notice 2003–73. 2003—Internal Revenue Notice 2002–71. 2002—Internal Revenue Notice 2001–84. 2001—Internal Revenue Notice 2000–66. 2000—Internal Revenue Notice 99–55. 1999—Internal Revenue Notice 98–53. 1998—Internal Revenue Notice 97–58. 1997—Internal Revenue Notice 96–55. § 402. Taxability of beneficiary of employees’ trust (a) Taxability of beneficiary of exempt trust Except as otherwise provided in this section, any amount actually distributed to any dis- tributee by any employees’ trust described in section 401(a) which is exempt from tax under section 501(a) shall be taxable to the distributee, in the taxable year of the distributee in which distributed, under section 72 (relating to annu- ities). (b) Taxability of beneficiary of nonexempt trust (1) Contributions Contributions to an employees’ trust made by an employer during a taxable year of the employer which ends with or within a taxable year of the trust for which the trust is not ex- empt from tax under section 501(a) shall be in- cluded in the gross income of the employee in accordance with section 83 (relating to prop- erty transferred in connection with perform- ance of services), except that the value of the employee’s interest in the trust shall be sub- stituted for the fair market value of the prop- erty for purposes of applying such section. (2) Distributions The amount actually distributed or made available to any distributee by any trust de- scribed in paragraph (1) shall be taxable to the distributee, in the taxable year in which so distributed or made available, under section 72 (relating to annuities), except that distribu- tions of income of such trust before the annu- ity starting date (as defined in section 72(c)(4)) shall be included in the gross income of the employee without regard to section 72(e)(5) (relating to amounts not received as annu- ities). (3) Grantor trusts A beneficiary of any trust described in para- graph (1) shall not be considered the owner of any portion of such trust under subpart E of part I of subchapter J (relating to grantors and others treated as substantial owners). (4) Failure to meet requirements of section 410(b) (A) Highly compensated employees If 1 of the reasons a trust is not exempt from tax under section 501(a) is the failure of the plan of which it is a part to meet the re- quirements of section 401(a)(26) or 410(b), then a highly compensated employee shall, in lieu of the amount determined under paragraph (1) or (2) include in gross income for the taxable year with or within which the taxable year of the trust ends an amount equal to the vested accrued benefit of such employee (other than the employee’s invest- ment in the contract) as of the close of such taxable year of the trust. (B) Failure to meet coverage tests If a trust is not exempt from tax under section 501(a) for any taxable year solely be- cause such trust is part of a plan which fails to meet the requirements of section 401(a)(26) or 410(b), paragraphs (1) and (2) shall not apply by reason of such failure to any employee who was not a highly com- pensated employee during— (i) such taxable year, or (ii) any preceding period for which serv- ice was creditable to such employee under the plan. Page 1241 TITLE 26—INTERNAL REVENUE CODE § 402 (C) Highly compensated employee For purposes of this paragraph, the term ‘‘highly compensated employee’’ has the meaning given such term by section 414(q). (c) Rules applicable to rollovers from exempt trusts (1) Exclusion from income If— (A) any portion of the balance to the credit of an employee in a qualified trust is paid to the employee in an eligible rollover distribu- tion, (B) the distributee transfers any portion of the property received in such distribution to an eligible retirement plan, and (C) in the case of a distribution of property other than money, the amount so trans- ferred consists of the property distributed, then such distribution (to the extent so trans- ferred) shall not be includible in gross income for the taxable year in which paid. (2) Maximum amount which may be rolled over In the case of any eligible rollover distribu- tion, the maximum amount transferred to which paragraph (1) applies shall not exceed the portion of such distribution which is in- cludible in gross income (determined without regard to paragraph (1)). The preceding sen- tence shall not apply to such distribution to the extent— (A) such portion is transferred in a direct trustee-to-trustee transfer to a qualified trust or to an annuity contract described in section 403(b) and such trust or contract pro- vides for separate accounting for amounts so transferred (and earnings thereon), including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible, or (B) such portion is transferred to an eligi- ble retirement plan described in clause (i) or (ii) of paragraph (8)(B). In the case of a transfer described in subpara- graph (A) or (B), the amount transferred shall be treated as consisting first of the portion of such distribution that is includible in gross in- come (determined without regard to paragraph (1)). (3) Time limit on transfers (A) In general Except as provided in subparagraphs (B) and (C), paragraph (1) shall not apply to any transfer of a distribution made after the 60th day following the day on which the dis- tributee received the property distributed. (B) Hardship exception The Secretary may waive the 60-day re- quirement under subparagraph (A) where the failure to waive such requirement would be against equity or good conscience, including casualty, disaster, or other events beyond the reasonable control of the individual sub- ject to such requirement. (C) Rollover of certain plan loan offset amounts (i) In general In the case of a qualified plan loan offset amount, paragraph (1) shall not apply to any transfer of such amount made after the due date (including extensions) for fil- ing the return of tax for the taxable year in which such amount is treated as distrib- uted from a qualified employer plan. (ii) Qualified plan loan offset amount For purposes of this subparagraph, the term ‘‘qualified plan loan offset amount’’ means a plan loan offset amount which is treated as distributed from a qualified em- ployer plan to a participant or beneficiary solely by reason of— (I) the termination of the qualified em- ployer plan, or (II) the failure to meet the repayment terms of the loan from such plan because of the severance from employment of the participant. (iii) Plan loan offset amount For purposes of clause (ii), the term ‘‘plan loan offset amount’’ means the amount by which the participant’s accrued benefit under the plan is reduced in order to repay a loan from the plan. (iv) Limitation This subparagraph shall not apply to any plan loan offset amount unless such plan loan offset amount relates to a loan to which section 72(p)(1) does not apply by reason of section 72(p)(2). (v) Qualified employer plan For purposes of this subsection, the term ‘‘qualified employer plan’’ has the mean- ing given such term by section 72(p)(4). (4) Eligible rollover distribution For purposes of this subsection, the term ‘‘eligible rollover distribution’’ means any dis- tribution to an employee of all or any portion of the balance to the credit of the employee in a qualified trust; except that such term shall not include— (A) any distribution which is one of a se- ries of substantially equal periodic pay- ments (not less frequently than annually) made— (i) for the life (or life expectancy) of the employee or the joint lives (or joint life expectancies) of the employee and the em- ployee’s designated beneficiary, or (ii) for a specified period of 10 years or more, (B) any distribution to the extent such dis- tribution is required under section 401(a)(9), and (C) any distribution which is made upon hardship of the employee. If all or any portion of a distribution during 2020 is treated as an eligible rollover distribu- tion but would not be so treated if the min- imum distribution requirements under section 401(a)(9) had applied during 2020, such distribu- Page 1242 TITLE 26—INTERNAL REVENUE CODE § 402 tion shall not be treated as an eligible rollover distribution for purposes of section 401(a)(31) or 3405(c) or subsection (f) of this section. (5) Transfer treated as rollover contribution under section 408 For purposes of this title, a transfer to an el- igible retirement plan described in clause (i) or (ii) of paragraph (8)(B) resulting in any por- tion of a distribution being excluded from gross income under paragraph (1) shall be treated as a rollover contribution described in section 408(d)(3). (6) Sales of distributed property For purposes of this subsection— (A) Transfer of proceeds from sale of distrib- uted property treated as transfer of dis- tributed property The transfer of an amount equal to any portion of the proceeds from the sale of property received in the distribution shall be treated as the transfer of property received in the distribution. (B) Proceeds attributable to increase in value The excess of fair market value of prop- erty on sale over its fair market value on distribution shall be treated as property re- ceived in the distribution. (C) Designation where amount of distribu- tion exceeds rollover contribution In any case where part or all of the dis- tribution consists of property other than money— (i) the portion of the money or other property which is to be treated as attrib- utable to amounts not included in gross in- come, and (ii) the portion of the money or other property which is to be treated as included in the rollover contribution, shall be determined on a ratable basis unless the taxpayer designates otherwise. Any des- ignation under this subparagraph for a tax- able year shall be made not later than the time prescribed by law for filing the return for such taxable year (including extensions thereof). Any such designation, once made, shall be irrevocable. (D) Nonrecognition of gain or loss No gain or loss shall be recognized on any sale described in subparagraph (A) to the ex- tent that an amount equal to the proceeds is transferred pursuant to paragraph (1). (7) Special rule for frozen deposits (A) In general The 60-day period described in paragraph (3) shall not— (i) include any period during which the amount transferred to the employee is a frozen deposit, or (ii) end earlier than 10 days after such amount ceases to be a frozen deposit. (B) Frozen deposits For purposes of this subparagraph, the term ‘‘frozen deposit’’ means any deposit which may not be withdrawn because of— (i) the bankruptcy or insolvency of any financial institution, or (ii) any requirement imposed by the State in which such institution is located by reason of the bankruptcy or insolvency (or threat thereof) of 1 or more financial institutions in such State. A deposit shall not be treated as a frozen de- posit unless on at least 1 day during the 60- day period described in paragraph (3) (with- out regard to this paragraph) such deposit is described in the preceding sentence. (8) Definitions For purposes of this subsection— (A) Qualified trust The term ‘‘qualified trust’’ means an em- ployees’ trust described in section 401(a) which is exempt from tax under section 501(a). (B) Eligible retirement plan The term ‘‘eligible retirement plan’’ means— (i) an individual retirement account de- scribed in section 408(a), (ii) an individual retirement annuity de- scribed in section 408(b) (other than an en- dowment contract), (iii) a qualified trust, (iv) an annuity plan described in section 403(a), (v) an eligible deferred compensation plan described in section 457(b) which is maintained by an eligible employer de- scribed in section 457(e)(1)(A), and (vi) an annuity contract described in sec- tion 403(b). If any portion of an eligible rollover dis- tribution is attributable to payments or dis- tributions from a designated Roth account (as defined in section 402A), an eligible re- tirement plan with respect to such portion shall include only another designated Roth account and a Roth IRA. (9) Rollover where spouse receives distribution after death of employee If any distribution attributable to an em- ployee is paid to the spouse of the employee after the employee’s death, the preceding pro- visions of this subsection shall apply to such distribution in the same manner as if the spouse were the employee. (10) Separate accounting Unless a plan described in clause (v) of para- graph (8)(B) agrees to separately account for amounts rolled into such plan from eligible re- tirement plans not described in such clause, the plan described in such clause may not ac- cept transfers or rollovers from such retire- ment plans. (11) Distributions to inherited individual re- tirement plan of nonspouse beneficiary (A) In general If, with respect to any portion of a dis- tribution from an eligible retirement plan described in paragraph (8)(B)(iii) of a de- ceased employee, a direct trustee-to-trustee Page 1243 TITLE 26—INTERNAL REVENUE CODE § 402 transfer is made to an individual retirement plan described in clause (i) or (ii) of para- graph (8)(B) established for the purposes of receiving the distribution on behalf of an in- dividual who is a designated beneficiary (as defined by section 401(a)(9)(E)) of the em- ployee and who is not the surviving spouse of the employee— (i) the transfer shall be treated as an eli- gible rollover distribution, (ii) the individual retirement plan shall be treated as an inherited individual re- tirement account or individual retirement annuity (within the meaning of section 408(d)(3)(C)) for purposes of this title, and (iii) section 401(a)(9)(B) (other than clause (iv) thereof) shall apply to such plan. (B) Certain trusts treated as beneficiaries For purposes of this paragraph, to the ex- tent provided in rules prescribed by the Sec- retary, a trust maintained for the benefit of one or more designated beneficiaries shall be treated in the same manner as a designated beneficiary. (12) In the case of an inadvertent benefit overpayment from a plan to which section 414(aa)(1) applies that is transferred to an eli- gible retirement plan by or on behalf of a par- ticipant or beneficiary— (A) the portion of such overpayment with respect to which recoupment is not sought on behalf of the plan shall be treated as hav- ing been paid in an eligible rollover distribu- tion if the payment would have been an eli- gible rollover distribution but for being an overpayment, and (B) the portion of such overpayment with respect to which recoupment is sought on behalf of the plan shall be permitted to be returned to such plan and in such case shall be treated as an eligible rollover distribu- tion transferred to such plan by the partici- pant or beneficiary who received such over- payment (and the plans making and receiv- ing such transfer shall be treated as permit- ting such transfer). (13) Recontributions of withdrawals for home purchases (A) General rule (i) In general Any individual who received a qualified distribution may, during the applicable pe- riod, make one or more contributions in an aggregate amount not to exceed the amount of such qualified distribution to an eligible retirement plan (as defined in paragraph (8)(B)) of which such individual is a beneficiary and to which a rollover contribution of such distribution could be made under subsection (c) or section 403(a)(4), 403(b)(8), or 408(d)(3), as the case may be. (ii) Treatment of repayments Rules similar to the rules of clauses (ii) and (iii) of section 72(t)(11)(C) shall apply for purposes of this subsection. (B) Qualified distribution For purposes of this paragraph, the term ‘‘qualified distribution’’ means any distribu- tion— (i) described in section 401(k)(2)(B)(i)(IV), 403(b)(7)(A)(i)(V), or 403(b)(11)(B), (ii) which was to be used to purchase or construct a principal residence in a quali- fied disaster area, but which was not so used on account of the qualified disaster with respect to such area, and (iii) which was received during the pe- riod beginning on the date which is 180 days before the first day of the incident period of such qualified disaster and end- ing on the date which is 30 days after the last day of such incident period. (C) Definitions For purposes of this paragraph— (i) the terms ‘‘qualified disaster’’, ‘‘qualified disaster area’’, and ‘‘incident period’’ have the meaning given such terms under section 72(t)(11), and (ii) the term ‘‘applicable period’’ has the meaning given such term under section 72(t)(8)(F). (d) Taxability of beneficiary of certain foreign situs trusts For purposes of subsections (a), (b), and (c), a stock bonus, pension, or profit-sharing trust which would qualify for exemption from tax under section 501(a) except for the fact that it is a trust created or organized outside the United States shall be treated as if it were a trust ex- empt from tax under section 501(a). (e) Other rules applicable to exempt trusts (1) Alternate payees (A) Alternate payee treated as distributee For purposes of subsection (a) and section 72, an alternate payee who is the spouse or former spouse of the participant shall be treated as the distributee of any distribution or payment made to the alternate payee under a qualified domestic relations order (as defined in section 414(p)). (B) Rollovers If any amount is paid or distributed to an alternate payee who is the spouse or former spouse of the participant by reason of any qualified domestic relations order (within the meaning of section 414(p)), subsection (c) shall apply to such distribution in the same manner as if such alternate payee were the employee. (2) Distributions by United States to non- resident aliens The amount includible under subsection (a) in the gross income of a nonresident alien with respect to a distribution made by the United States in respect of services performed by an employee of the United States shall not exceed an amount which bears the same ratio to the amount includible in gross income without regard to this paragraph as— (A) the aggregate basic pay paid by the United States to such employee for such services, reduced by the amount of such Page 1244 TITLE 26—INTERNAL REVENUE CODE § 402 basic pay which was not includible in gross income by reason of being from sources without the United States, bears to (B) the aggregate basic pay paid by the United States to such employee for such services. In the case of distributions under the civil service retirement laws, the term ‘‘basic pay’’ shall have the meaning provided in section 8331(3) of title 5, United States Code. (3) Cash or deferred arrangements For purposes of this title, contributions made by an employer on behalf of an employee to a trust which is a part of a qualified cash or deferred arrangement (as defined in section 401(k)(2)) or which is part of a salary reduction agreement under section 403(b) shall not be treated as distributed or made available to the employee nor as contributions made to the trust by the employee merely because the ar- rangement includes provisions under which the employee has an election whether the con- tribution will be made to the trust or received by the employee in cash. (4) Net unrealized appreciation (A) Amounts attributable to employee con- tributions For purposes of subsection (a) and section 72, in the case of a distribution other than a lump sum distribution, the amount actually distributed to any distributee from a trust described in subsection (a) shall not include any net unrealized appreciation in securities of the employer corporation attributable to amounts contributed by the employee (other than deductible employee contributions within the meaning of section 72(o)(5)). This subparagraph shall not apply to a distribu- tion to which subsection (c) applies. (B) Amounts attributable to employer con- tributions For purposes of subsection (a) and section 72, in the case of any lump sum distribution which includes securities of the employer corporation, there shall be excluded from gross income the net unrealized appreciation attributable to that part of the distribution which consists of securities of the employer corporation. In accordance with rules pre- scribed by the Secretary, a taxpayer may elect, on the return of tax on which a lump sum distribution is required to be included, not to have this subparagraph apply to such distribution. (C) Determination of amounts and adjust- ments For purposes of subparagraphs (A) and (B), net unrealized appreciation and the result- ing adjustments to basis shall be determined in accordance with regulations prescribed by the Secretary. (D) Lump-sum distribution For purposes of this paragraph— (i) In general The term ‘‘lump-sum distribution’’ means the distribution or payment within one taxable year of the recipient of the balance to the credit of an employee which becomes payable to the recipient— (I) on account of the employee’s death, (II) after the employee attains age 591⁄2, (III) on account of the employee’s sepa- ration from service, or (IV) after the employee has become disabled (within the meaning of section 72(m)(7)), from a trust which forms a part of a plan described in section 401(a) and which is ex- empt from tax under section 501 or from a plan described in section 403(a). Subclause (III) of this clause shall be applied only with respect to an individual who is an em- ployee without regard to section 401(c)(1), and subclause (IV) shall be applied only with respect to an employee within the meaning of section 401(c)(1). For purposes of this clause, a distribution to two or more trusts shall be treated as a distribu- tion to one recipient. For purposes of this paragraph, the balance to the credit of the employee does not include the accumu- lated deductible employee contributions under the plan (within the meaning of sec- tion 72(o)(5)). (ii) Aggregation of certain trusts and plans For purposes of determining the balance to the credit of an employee under clause (i)— (I) all trusts which are part of a plan shall be treated as a single trust, all pen- sion plans maintained by the employer shall be treated as a single plan, all prof- it-sharing plans maintained by the em- ployer shall be treated as a single plan, and all stock bonus plans maintained by the employer shall be treated as a single plan, and (II) trusts which are not qualified trusts under section 401(a) and annuity contracts which do not satisfy the re- quirements of section 404(a)(2) shall not be taken into account. (iii) Community property laws The provisions of this paragraph shall be applied without regard to community property laws. (iv) Amounts subject to penalty This paragraph shall not apply to amounts described in subparagraph (A) of section 72(m)(5) to the extent that section 72(m)(5) applies to such amounts. (v) Balance to credit of employee not to in- clude amounts payable under qualified domestic relations order For purposes of this paragraph, the bal- ance to the credit of an employee shall not include any amount payable to an alter- nate payee under a qualified domestic rela- tions order (within the meaning of section 414(p)). (vi) Transfers to cost-of-living arrangement not treated as distribution For purposes of this paragraph, the bal- ance to the credit of an employee under a Page 1245 TITLE 26—INTERNAL REVENUE CODE § 402 defined contribution plan shall not include any amount transferred from such defined contribution plan to a qualified cost-of-liv- ing arrangement (within the meaning of section 415(k)(2)) under a defined benefit plan. (vii) Lump-sum distributions of alternate payees If any distribution or payment of the balance to the credit of an employee would be treated as a lump-sum distribution, then, for purposes of this paragraph, the payment under a qualified domestic rela- tions order (within the meaning of section 414(p)) of the balance to the credit of an al- ternate payee who is the spouse or former spouse of the employee shall be treated as a lump-sum distribution. For purposes of this clause, the balance to the credit of the alternate payee shall not include any amount payable to the employee. (E) Definitions relating to securities For purposes of this paragraph— (i) Securities The term ‘‘securities’’ means only shares of stock and bonds or debentures issued by a corporation with interest coupons or in registered form. (ii) Securities of the employer The term ‘‘securities of the employer corporation’’ includes securities of a par- ent or subsidiary corporation (as defined in subsections (e) and (f) of section 424) of the employer corporation. [(5) Repealed. Pub. L. 104–188, title I, § 1401(b)(13), Aug. 20, 1996, 110 Stat. 1789] (6) Direct trustee-to-trustee transfers Any amount transferred in a direct trustee- to-trustee transfer in accordance with section 401(a)(31) shall not be includible in gross in- come for the taxable year of such transfer. (f) Written explanation to recipients of distribu- tions eligible for rollover treatment (1) In general The plan administrator of any plan shall, within a reasonable period of time before mak- ing an eligible rollover distribution, provide a written explanation to the recipient— (A) of the provisions under which the re- cipient may have the distribution directly transferred to an eligible retirement plan and that the automatic distribution by di- rect transfer applies to certain distributions in accordance with section 401(a)(31)(B), (B) of the provision which requires the withholding of tax on the distribution if it is not directly transferred to an eligible retire- ment plan, (C) of the provisions under which the dis- tribution will not be subject to tax if trans- ferred to an eligible retirement plan within 60 days after the date on which the recipient received the distribution, (D) if applicable, of the provisions of sub- sections (d) and (e) of this section, and (E) of the provisions under which distribu- tions from the eligible retirement plan re- ceiving the distribution may be subject to restrictions and tax consequences which are different from those applicable to distribu- tions from the plan making such distribu- tion. (2) Definitions For purposes of this subsection— (A) Eligible rollover distribution The term ‘‘eligible rollover distribution’’ has the same meaning as when used in sub- section (c) of this section, paragraph (4) of section 403(a), subparagraph (A) of section 403(b)(8), or subparagraph (A) of section 457(e)(16). Such term shall include any dis- tribution to a designated beneficiary which would be treated as an eligible rollover dis- tribution by reason of subsection (c)(11), or section 403(a)(4)(B), 403(b)(8)(B), or 457(e)(16)(B), if the requirements of sub- section (c)(11) were satisfied. (B) Eligible retirement plan The term ‘‘eligible retirement plan’’ has the meaning given such term by subsection (c)(8)(B). (g) Limitation on exclusion for elective deferrals (1) In general (A) Limitation Notwithstanding subsections (e)(3) and (h)(1)(B), the elective deferrals of any indi- vidual for any taxable year shall be included in such individual’s gross income to the ex- tent the amount of such deferrals for the taxable year exceeds the applicable dollar amount. The preceding sentence shall not apply to the portion of such excess as does not exceed the designated Roth contribu- tions of the individual for the taxable year. (B) Applicable dollar amount For purposes of subparagraph (A), the ap- plicable dollar amount is $15,000. (2) Distribution of excess deferrals (A) In general If any amount (hereinafter in this para- graph referred to as ‘‘excess deferrals’’) is in- cluded in the gross income of an individual under paragraph (1) (or would be included but for the last sentence thereof) for any taxable year— (i) not later than the 1st March 1 fol- lowing the close of the taxable year, the individual may allocate the amount of such excess deferrals among the plans under which the deferrals were made and may notify each such plan of the portion allocated to it, and (ii) not later than the 1st April 15 fol- lowing the close of the taxable year, each such plan may distribute to the individual the amount allocated to it under clause (i) (and any income allocable to such amount through the end of such taxable year). The distribution described in clause (ii) may be made notwithstanding any other provi- sion of law. (B) Treatment of distribution under section 401(k) Except to the extent provided under rules prescribed by the Secretary, notwith- Page 1246 TITLE 26—INTERNAL REVENUE CODE § 402 standing the distribution of any portion of an excess deferral from a plan under sub- paragraph (A)(ii), such portion shall, for pur- poses of applying section 401(k)(3)(A)(ii), be treated as an employer contribution. (C) Taxation of distribution In the case of a distribution to which sub- paragraph (A) applies— (i) except as provided in clause (ii), such distribution shall not be included in gross income, and (ii) any income on the excess deferral shall, for purposes of this chapter, be treated as earned and received in the tax- able year in which such income is distrib- uted. No tax shall be imposed under section 72(t) on any distribution described in the pre- ceding sentence. (D) Partial distributions If a plan distributes only a portion of any excess deferral and income allocable thereto, such portion shall be treated as having been distributed ratably from the excess deferral and the income. (3) Elective deferrals For purposes of this subsection, the term ‘‘elective deferrals’’ means, with respect to any taxable year, the sum of— (A) any employer contribution under a qualified cash or deferred arrangement (as defined in section 401(k)) to the extent not includible in gross income for the taxable year under subsection (e)(3) (determined without regard to this subsection), (B) any employer contribution to the ex- tent not includible in gross income for the taxable year under subsection (h)(1)(B) (de- termined without regard to this subsection), (C) any employer contribution to purchase an annuity contract under section 403(b) under a salary reduction agreement (within the meaning of section 3121(a)(5)(D)), and (D) any elective employer contribution under section 408(p)(2)(A)(i). An employer contribution shall not be treated as an elective deferral described in subpara- graph (C) if under the salary reduction agree- ment such contribution is made pursuant to a one-time irrevocable election made by the em- ployee at the time of initial eligibility to par- ticipate in the agreement or is made pursuant to a similar arrangement involving a one-time irrevocable election specified in regulations. (4) Cost-of-living adjustment In the case of taxable years beginning after December 31, 2006, the Secretary shall adjust the $15,000 amount under paragraph (1)(B) at the same time and in the same manner as under section 415(d), except that the base pe- riod shall be the calendar quarter beginning July 1, 2005, and any increase under this para- graph which is not a multiple of $500 shall be rounded to the next lowest multiple of $500. (5) Disregard of community property laws This subsection shall be applied without re- gard to community property laws. (6) Coordination with section 72 For purposes of applying section 72, any amount includible in gross income for any tax- able year under this subsection but which is not distributed from the plan during such tax- able year shall not be treated as investment in the contract. (7) Special rule for certain organizations (A) In general In the case of a qualified employee of a qualified organization, with respect to em- ployer contributions described in paragraph (3)(C) made by such organization, the limita- tion of paragraph (1) for any taxable year shall be increased by whichever of the fol- lowing is the least: (i) $3,000, (ii) $15,000 reduced by the sum of— (I) the amounts not included in gross income for prior taxable years by reason of this paragraph, plus (II) the aggregate amount of des- ignated Roth contributions (as defined in section 402A(c)) permitted for prior tax- able years by reason of this paragraph, or (iii) the excess of $5,000 multiplied by the number of years of service of the employee with the qualified organization over the employer contributions described in para- graph (3) made by the organization on be- half of such employee for prior taxable years (determined in the manner pre- scribed by the Secretary). (B) Qualified organization For purposes of this paragraph, the term ‘‘qualified organization’’ means any edu- cational organization, hospital, home health service agency, health and welfare service agency, church, or convention or association of churches. Such term includes any organi- zation described in section 414(e)(3)(B)(ii). Terms used in this subparagraph shall have the same meaning as when used in section 415(c)(4) (as in effect before the enactment of the Economic Growth and Tax Relief Rec- onciliation Act of 2001). (C) Qualified employee For purposes of this paragraph, the term ‘‘qualified employee’’ means any employee who has completed 15 years of service with the qualified organization. (D) Years of service For purposes of this paragraph, the term ‘‘years of service’’ has the meaning given such term by section 403(b). (8) Matching contributions on behalf of self- employed individuals not treated as elec- tive employer contributions Except as provided in section 401(k)(3)(D)(ii), any matching contribution described in sec- tion 401(m)(4)(A) which is made on behalf of a self-employed individual (as defined in section 401(c)) shall not be treated as an elective em- ployer contribution under a qualified cash or deferred arrangement (as defined in section 401(k)) for purposes of this title. Page 1247 TITLE 26—INTERNAL REVENUE CODE § 402 (h) Special rules for simplified employee pen- sions For purposes of this chapter— (1) In general Except as provided in paragraph (2), con- tributions made by an employer on behalf of an employee to an individual retirement plan pursuant to a simplified employee pension (as defined in section 408(k))— (A) shall not be treated as distributed or made available to the employee or as con- tributions made by the employee, (B) if such contributions are made pursu- ant to an arrangement under section 408(k)(6) under which an employee may elect to have the employer make contributions to the simplified employee pension on behalf of the employee, shall not be treated as distrib- uted or made available or as contributions made by the employee merely because the simplified employee pension includes provi- sions for such election, and (C) in the case of any contributions pursu- ant to a simplified employer pension which are made to an individual retirement plan designated as a Roth IRA, such contribution shall not be excludable from gross income. (2) Limitations on employer contributions Contributions made by an employer to a simplified employee pension with respect to an employee for any year shall be treated as dis- tributed or made available to such employee and as contributions made by the employee to the extent such contributions exceed the less- er of— (A) 25 percent of the compensation (within the meaning of section 414(s)) from such em- ployer includible in the employee’s gross in- come for the year (determined without re- gard to the employer contributions to the simplified employee pension), or (B) the limitation in effect under section 415(c)(1)(A), reduced in the case of any high- ly compensated employee (within the mean- ing of section 414(q)) by the amount taken into account with respect to such employee under section 408(k)(3)(D). (3) Distributions Any amount paid or distributed out of an in- dividual retirement plan pursuant to a sim- plified employee pension shall be included in gross income by the payee or distributee, as the case may be, in accordance with the provi- sions of section 408(d) (or section 408A(d) in the case of an individual retirement plan des- ignated as a Roth IRA). (i) Treatment of self-employed individuals For purposes of this section, except as other- wise provided in subsection (e)(4)(D)(i), the term ‘‘employee’’ includes a self-employed individual (as defined in section 401(c)(1)(B)) and the em- ployer of such individual shall be the person treated as his employer under section 401(c)(4). (j) Effect of disposition of stock by plan on net unrealized appreciation (1) In general For purposes of subsection (e)(4), in the case of any transaction to which this subsection applies, the determination of net unrealized appreciation shall be made without regard to such transaction. (2) Transaction to which subsection applies This subsection shall apply to any trans- action in which— (A) the plan trustee exchanges the plan’s securities of the employer corporation for other such securities, or (B) the plan trustee disposes of securities of the employer corporation and uses the proceeds of such disposition to acquire secu- rities of the employer corporation within 90 days (or such longer period as the Secretary may prescribe), except that this subpara- graph shall not apply to any employee with respect to whom a distribution of money was made during the period after such disposi- tion and before such acquisition. (k) Treatment of simple retirement accounts Rules similar to the rules of paragraphs (1) and (3) of subsection (h) shall apply to contribu- tions and distributions with respect to a simple retirement account under section 408(p). (l) Distributions from governmental plans for health and long-term care insurance (1) In general In the case of an employee who is an eligible retired public safety officer who makes the election described in paragraph (6) with re- spect to any taxable year of such employee, gross income of such employee for such tax- able year does not include any distribution from an eligible retirement plan maintained by the employer described in paragraph (4)(B) to the extent that the aggregate amount of such distributions does not exceed the amount paid by such employee for qualified health in- surance premiums for such taxable year. (2) Limitation The amount which may be excluded from gross income for the taxable year by reason of paragraph (1) shall not exceed $3,000. (3) Distributions must otherwise be includible (A) In general An amount shall be treated as a distribu- tion for purposes of paragraph (1) only to the extent that such amount would be includible in gross income without regard to paragraph (1). (B) Application of section 72 Notwithstanding section 72, in deter- mining the extent to which an amount is treated as a distribution for purposes of sub- paragraph (A), the aggregate amounts dis- tributed from an eligible retirement plan in a taxable year (up to the amount excluded under paragraph (1)) shall be treated as in- cludible in gross income (without regard to subparagraph (A)) to the extent that such amount does not exceed the aggregate amount which would have been so includible if all amounts to the credit of the eligible public safety officer in all eligible retire- ment plans maintained by the employer de- scribed in paragraph (4)(B) were distributed Page 1248 TITLE 26—INTERNAL REVENUE CODE § 402 1 See References in Text note below. during such taxable year and all such plans were treated as 1 contract for purposes of de- termining under section 72 the aggregate amount which would have been so includ- ible. Proper adjustments shall be made in applying section 72 to other distributions in such taxable year and subsequent taxable years. (4) Definitions For purposes of this subsection— (A) Eligible retirement plan For purposes of paragraph (1), the term ‘‘eligible retirement plan’’ means a govern- mental plan (within the meaning of section 414(d)) which is described in clause (iii), (iv), (v), or (vi) of subsection (c)(8)(B). (B) Eligible retired public safety officer The term ‘‘eligible retired public safety of- ficer’’ means an individual who, by reason of disability or attainment of normal retire- ment age, is separated from service as a pub- lic safety officer with the employer who maintains the eligible retirement plan from which distributions subject to paragraph (1) are made. (C) Public safety officer The term ‘‘public safety officer’’ shall have the same meaning given such term by sec- tion 1204(9)(A) of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796b(9)(A)),1 as in effect immediately before the enactment of the National Defense Au- thorization Act for Fiscal Year 2013. (D) Qualified health insurance premiums The term ‘‘qualified health insurance pre- miums’’ means premiums for coverage for the eligible retired public safety officer, his spouse, and dependents (as defined in section 152), by an accident or health plan or quali- fied long-term care insurance contract (as defined in section 7702B(b)). (5) Special rules For purposes of this subsection— (A) Direct payment to insurer permitted (i) In general Paragraph (1) shall apply to a distribu- tion without regard to whether payment of the premiums is made directly to the pro- vider of the accident or health plan or qualified long-term care insurance con- tract by deduction from a distribution from the eligible retirement plan, or is made to the employee. (ii) Reporting In the case of a payment made to the employee as described in clause (i), the employee shall include with the return of tax for the taxable year in which the dis- tribution is made an attestation that the distribution does not exceed the amount paid by the employee for qualified health insurance premiums for such taxable year. (B) Related plans treated as 1 All eligible retirement plans of an em- ployer shall be treated as a single plan. (6) Election described (A) In general For purposes of paragraph (1), an election is described in this paragraph if the election is made by an employee after separation from service with respect to amounts not distributed from an eligible retirement plan to have amounts from such plan distributed in order to pay for qualified health insur- ance premiums. (B) Special rule A plan shall not be treated as violating the requirements of section 401, or as engaging in a prohibited transaction for purposes of section 503(b), merely because it provides for an election with respect to amounts that are otherwise distributable under the plan or merely because of a distribution made pur- suant to an election described in subpara- graph (A). (7) Coordination with medical expense deduc- tion The amounts excluded from gross income under paragraph (1) shall not be taken into ac- count under section 213. (8) Coordination with deduction for health in- surance costs of self-employed individuals The amounts excluded from gross income under paragraph (1) shall not be taken into ac- count under section 162(l). (Aug. 16, 1954, ch. 736, 68A Stat. 135; Pub. L. 86–437, §§ 1, 2(a), Apr. 22, 1960, 74 Stat. 79; Pub. L. 87–792, § 4(c), Oct. 10, 1962, 76 Stat. 825; Pub. L. 88–272, title II, §§ 221(c)(1), 232(e)(1)–(3), Feb. 26, 1964, 78 Stat. 75, 111; Pub. L. 91–172, title III, § 321(b)(1), title V, § 515(a)(1), Dec. 30, 1969, 83 Stat. 590, 643; Pub. L. 93–406, title II, §§ 2002(g)(5), 2005(a), (b)(1), (c)(1), (2), Sept. 2, 1974, 88 Stat. 968, 987, 990, 991: Pub. L. 94–267, § 1(a), Apr. 15, 1976, 90 Stat. 365; Pub. L. 94–455, title XIV, § 1402(b)(1)(C), (2), title XV, § 1512(a), title XIX, §§ 1901(a)(57)(A)–(C)(i), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1731, 1732, 1742, 1773, 1774, 1834; Pub. L. 95–30, title I, § 102(b)(4), May 23, 1977, 91 Stat. 137; Pub. L. 95–458, § 4(a), (c), Oct. 14, 1978, 92 Stat. 1257, 1259; Pub. L. 95–600, title I, §§ 101(d)(1), 135(b), 157(f)(1), (g)(1), (h)(1), Nov. 6, 1978, 92 Stat. 2770, 2787, 2806–2808; Pub. L. 96–222, title I, § 101(a)(14)(C), (E)(i), Apr. 1, 1980, 94 Stat. 204, 205; Pub. L. 96–608, § 2(a), Dec. 28, 1980, 94 Stat. 3551; Pub. L. 97–34, title III, §§ 311(b)(2), (3)(A), (c), 314(c)(1), Aug. 13, 1981, 95 Stat. 280, 286; Pub. L. 97–448, title I, §§ 101(b), 103(c)(7), (8)(A), (12)(D), Jan. 12, 1983, 96 Stat. 2366, 2376, 2377; Pub. L. 98–369, div. A, title IV, § 491(c)(2), (d)(9)–(11), title V, § 522(a)(1), (b)–(d)(8), title VII, § 713(c)(3), title X, § 1001(b)(3), (e), July 18, 1984, 98 Stat. 848, 849, 868–870, 957, 1011, 1012; Pub. L. 98–397, title II, §§ 204(c)(1), (3), (4), 207(a), Aug. 23, 1984, 98 Stat. 1448, 1449; Pub. L. 99–272, title XI, § 11012(c), Apr. 7, 1986, 100 Stat. 260; Pub. L. 99–514, title I, § 104(b)(5), title XI, §§ 1105(a), 1106(c)(2), 1108(b), 1112(c), 1121(c)(1), 1122(a), (b)(1)(A), (2), (e)(1), (2)(A), (g), title XVIII, §§ 1852(a)(5)(A), (b)(1)–(7), (c)(5), 1854(f)(2), 1875(c)(1)(A), 1898(a)(2), (3), (c)(1)(A), (7)(A)(i), (e), Oct. 22, 1986, 100 Stat. 2105, 2417, 2423, 2432, 2444, 2465, 2466, 2469, 2470, 2865–2867, 2881, 2894, 2942, 2943, 2951, 2954, 2955; Page 1249 TITLE 26—INTERNAL REVENUE CODE § 402 Pub. L. 100–647, title I, §§ 1011(c)(1)–(6)(B), (11), (h)(4), 1011A(a)(1), (b)(4)(A)–(D), (5)–(8), (10), (c)(9), 1018(t)(8)(A), (C), (u)(1), (6), (7), title VI, § 6068(a), Nov. 10, 1988, 102 Stat. 3457–3459, 3464, 3472–3474, 3476, 3589, 3590, 3703; Pub. L. 101–239, title VII, § 7811(g)(2), (i)(13), Dec. 19, 1989, 103 Stat. 2409, 2411; Pub. L. 101–508, title XI, § 11801(c)(9)(I), Nov. 5, 1990, 104 Stat. 1388–526; Pub. L. 102–318, title V, §§ 521(a), (b)(9)–(11), 522(c)(1), July 3, 1992, 106 Stat. 300, 310, 311, 315; Pub. L. 103–465, title VII, § 732(c), Dec. 8, 1994, 108 Stat. 5005; Pub. L. 104–188, title I, §§ 1401(a)–(b)(2), (13), 1421(b)(3)(A), (9)(B), 1450(a)(2), 1704(t)(68), Aug. 20, 1996, 110 Stat. 1787–1789, 1796, 1798, 1814, 1891; Pub. L. 105–34, title XV, § 1501(a), Aug. 5, 1997, 111 Stat. 1058; Pub. L. 105–206, title VI, § 6005(c)(2)(A), July 22, 1998, 112 Stat. 800; Pub. L. 107–16, title VI, §§ 611(d)(1)–(3)(A), 617(b), (c), 632(a)(3)(G), 636(b)(1), 641(a)(2)(A), (B), (b)(2)–(d), (e)(4)–(6), 643(a), 644(a), 657(b), June 7, 2001, 115 Stat. 97, 98, 105, 114, 117, 119–123, 136; Pub. L. 107–147, title IV, § 411(l)(3), (o)(1), (p)(6), (q)(2), Mar. 9, 2002, 116 Stat. 47, 48, 51; Pub. L. 109–135, title IV, § 407(a), Dec. 21, 2005, 119 Stat. 2635; Pub. L. 109–280, title VIII, §§ 822(a), 829(a)(1), 845(a), Aug. 17, 2006, 120 Stat. 998, 1001, 1013; Pub. L. 110–172, § 8(a)(1), Dec. 29, 2007, 121 Stat. 2483; Pub. L. 110–458, title I, §§ 108(f)(1)–(2)(B), (j), 109(b)(3), title II, § 201(b), Dec. 23, 2008, 122 Stat. 5109–5111, 5117; Pub. L. 112–239, div. A, title X, § 1086(b)(3)(A), Jan. 2, 2013, 126 Stat. 1968; Pub. L. 113–295, div. A, title II, § 221(a)(57)(A), Dec. 19, 2014, 128 Stat. 4046; Pub. L. 115–97, title I, § 13613(a), (b), Dec. 22, 2017, 131 Stat. 2166; Pub. L. 115–141, div. U, title IV, § 401(a)(73), Mar. 23, 2018, 132 Stat. 1187; Pub. L. 116–136, div. A, title II, § 2203(b), Mar. 27, 2020, 134 Stat. 344; Pub. L. 117–328, div. T, title III, §§ 301(b)(2), 328(a), 331(b)(2), title VI, §§ 601(b)(1), (2), 603(b)(1), Dec. 29, 2022, 136 Stat. 5338, 5360, 5364, 5390, 5392.) INFLATION ADJUSTED ITEMS FOR CERTAIN YEARS For inflation adjustment of certain items in this section, see Internal Revenue Notices listed in a table under section 401 of this title. Editorial Notes REFERENCES IN TEXT Section 415(c)(4) (as in effect before the enactment of the Economic Growth and Tax Relief Reconciliation Act of 2001), referred to in subsec. (g)(7)(B), means sec- tion 415(c)(4) of this title prior to its repeal by Pub. L. 107–16, title VI, § 632(a)(3)(E), June 7, 2001, 115 Stat. 114. Section 1204(9)(A) of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796b(9)(A)), as in ef- fect immediately before the enactment of the National Defense Authorization Act for Fiscal Year 2013, referred to in subsec. (l)(4)(C), means section 1204(9)(A) of Pub. L. 90–351 prior to its amendment by Pub. L. 112–239, div. A, title X, § 1086(b)(1)(E)(v)(I), Jan. 2, 2013, 126 Stat. 1967. Section 1204(9)(A) of Pub. L. 90–351 was classified to sec- tion 3796b(9)(A) of Title 42, The Public Health and Wel- fare, prior to editorial reclassification and renumbering as section 10284(9)(A) of Title 34, Crime Control and Law Enforcement. Section 10284(9)(A) of Title 34 was re- designated as section 10284(14)(A) and amended by Pub. L. 117–61, § 3(1), (7)(A), Nov. 18, 2021, 135 Stat. 1475, 1476. AMENDMENTS 2022—Subsec. (c)(12). Pub. L. 117–328, § 301(b)(2), added par. (12). Subsec. (c)(13). Pub. L. 117–328, § 331(b)(2), added par. (13). Subsec. (g)(1)(C). Pub. L. 117–328, § 603(b)(1), struck out subpar. (C). Text read as follows: ‘‘In addition to sub- paragraph (A), in the case of an eligible participant (as defined in section 414(v)), gross income shall not in- clude elective deferrals in excess of the applicable dol- lar amount under subparagraph (B) to the extent that the amount of such elective deferrals does not exceed the applicable dollar amount under section 414(v)(2)(B)(i) for the taxable year (without regard to the treatment of the elective deferrals by an applicable employer plan under section 414(v)).’’ Subsec. (h)(1)(C). Pub. L. 117–328, § 601(b)(1), added sub- par. (C). Subsec. (h)(3). Pub. L. 117–328, § 601(b)(2), inserted ‘‘(or section 408A(d) in the case of an individual retirement plan designated as a Roth IRA)’’ before period at end. Subsec. (l)(5)(A). Pub. L. 117–328, § 328(a), amended subpar. (A) generally. Prior to amendment, text read as follows: ‘‘Paragraph (1) shall only apply to a distribu- tion if payment of the premiums is made directly to the provider of the accident or health plan or qualified long-term care insurance contract by deduction from a distribution from the eligible retirement plan.’’ 2020—Subsec. (c)(4). Pub. L. 116–136 substituted ‘‘2020’’ for ‘‘2009’’ in two places in concluding provisions. 2018—Subsec. (i). Pub. L. 115–141 substituted ‘‘sub- section (e)(4)(D)(i)’’ for ‘‘subparagraph (A) of subsection (d)(4)’’. 2017—Subsec. (c)(3). Pub. L. 115–97, § 13613(b)(1), sub- stituted ‘‘Time limit on transfers’’ for ‘‘Transfer must be made within 60 days of receipt’’ in heading. Subsec. (c)(3)(A). Pub. L. 115–97, § 13613(b)(2), sub- stituted ‘‘subparagraphs (B) and (C)’’ for ‘‘subparagraph (B)’’. Subsec. (c)(3)(C). Pub. L. 115–97, § 13613(a), added sub- par. (C). 2014—Subsec. (g)(1)(B). Pub. L. 113–295 substituted ‘‘is $15,000.’’ for ‘‘shall be the amount determined in ac- cordance with the following table:’’ and struck out table at end listing applicable dollar amounts for fiscal years 2002 to 2006 and thereafter. 2013—Subsec. (l)(4)(C). Pub. L. 112–239 inserted ‘‘, as in effect immediately before the enactment of the Na- tional Defense Authorization Act for Fiscal Year 2013’’ before period at end. 2008—Subsec. (c)(4). Pub. L. 110–458, § 201(b), inserted concluding provisions. Subsec. (c)(11)(A). Pub. L. 110–458, § 108(f)(1)(A), in- serted ‘‘described in paragraph (8)(B)(iii)’’ after ‘‘eligi- ble retirement plan’’ in introductory provisions. Subsec. (c)(11)(A)(i). Pub. L. 110–458, § 108(f)(2)(B), struck out ‘‘for purposes of this subsection’’ after ‘‘eli- gible rollover distribution’’. Subsec. (c)(11)(B). Pub. L. 110–458, § 108(f)(1)(B), struck out ‘‘trust’’ before ‘‘designated beneficiary’’. Subsec. (f)(2)(A). Pub. L. 110–458, § 108(f)(2)(A), inserted at end ‘‘Such term shall include any distribution to a designated beneficiary which would be treated as an el- igible rollover distribution by reason of subsection (c)(11), or section 403(a)(4)(B), 403(b)(8)(B), or 457(e)(16)(B), if the requirements of subsection (c)(11) were satisfied.’’ Subsec. (g)(2)(A)(ii). Pub. L. 110–458, § 109(b)(3), in- serted ‘‘through the end of such taxable year’’ after ‘‘such amount’’. Subsec. (l)(1). Pub. L. 110–458, § 108(j)(1)(A), inserted ‘‘maintained by the employer described in paragraph (4)(B)’’ after ‘‘an eligible retirement plan’’ and struck out ‘‘of the employee, his spouse, or dependents (as de- fined in section 152)’’ after ‘‘qualified health insurance premiums’’. Subsec. (l)(3)(B). Pub. L. 110–458, § 108(j)(2), substituted ‘‘all amounts to the credit of the eligible public safety officer in all eligible retirement plans maintained by the employer described in paragraph (4)(B) were distrib- uted during such taxable year and all such plans were treated as 1 contract for purposes of determining under section 72 the aggregate amount which would have been so includible’’ for ‘‘all amounts distributed from all eli- gible retirement plans were treated as 1 contract for Page 1250 TITLE 26—INTERNAL REVENUE CODE § 402 purposes of determining the inclusion of such distribu- tion under section 72’’. Subsec. (l)(4)(D). Pub. L. 110–458, § 108(j)(1)(B), inserted ‘‘(as defined in section 152)’’ after ‘‘dependents’’ and substituted ‘‘health plan’’ for ‘‘health insurance plan’’. Subsec. (l)(5)(A). Pub. L. 110–458, § 108(j)(1)(C), sub- stituted ‘‘health plan’’ for ‘‘health insurance plan’’. 2007—Subsec. (g)(7)(A)(ii)(II). Pub. L. 110–172 sub- stituted ‘‘permitted for prior taxable years by reason of this paragraph’’ for ‘‘for prior taxable years’’. Amend- ment was executed to subsec. (g)(7)(A)(ii) as amended by Pub. L. 109–135, § 407(a)(1), as the probable intent of Congress, notwithstanding Pub. L. 110–172, § 8(b), which provided that the amendment take effect as if included in the provisions of Pub. L. 107–16 to which it relates. See 2006 Amendment note and Effective Date of 2007 Amendment note below. 2006—Subsec. (c)(2)(A). Pub. L. 109–280, § 822(a), which directed the amendment of section 402(c)(2)(A) by sub- stituting ‘‘or to an annuity contract described in sec- tion 403(b) and such trust or contract provides for sepa- rate accounting’’ for ‘‘which is part of a plan which is a defined contribution plan and which agrees to sepa- rately account’’ and inserting ‘‘(and earnings thereon)’’ after ‘‘so transferred’’, without specifying the act to be amended, was executed to this section, which is section 402(c)(2)(A) of the Internal Revenue Code of 1986, to re- flect the probable intent of Congress. Subsec. (c)(11). Pub. L. 109–280, § 829(a)(1), added par. (11). Subsec. (l). Pub. L. 109–280, § 845(a), added subsec. (l). 2005—Subsec. (g)(1)(A). Pub. L. 109–135, § 407(a)(2), in- serted ‘‘to’’ after ‘‘shall not apply’’. Subsec. (g)(7)(A)(ii). Pub. L. 109–135, § 407(a)(1), amend- ed cl. (ii) generally. Prior to amendment, cl. (ii) read as follows: ‘‘$15,000 reduced by amounts not included in gross income for prior taxable years by reason of this paragraph, or’’. 2002—Subsec. (c)(2). Pub. L. 107–147, § 411(q)(2), in- serted at end: ‘‘In the case of a transfer described in subparagraph (A) or (B), the amount transferred shall be treated as consisting first of the portion of such dis- tribution that is includible in gross income (deter- mined without regard to paragraph (1)).’’ Subsec. (g)(1)(C). Pub. L. 107–147, § 411(o)(1), added sub- par. (C). Subsec. (g)(7)(B). Pub. L. 107–147, § 411(p)(6), sub- stituted ‘‘2001).’’ for ‘‘2001.’’ Subsec. (h)(2)(A). Pub. L. 107–147, § 411(l)(3), sub- stituted ‘‘25 percent’’ for ‘‘15 percent’’. 2001—Subsec. (c)(2). Pub. L. 107–16, § 643(a), inserted at end ‘‘The preceding sentence shall not apply to such distribution to the extent— ‘‘(A) such portion is transferred in a direct trustee- to-trustee transfer to a qualified trust which is part of a plan which is a defined contribution plan and which agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible, or ‘‘(B) such portion is transferred to an eligible re- tirement plan described in clause (i) or (ii) of para- graph (8)(B).’’ Subsec. (c)(3). Pub. L. 107–16, § 644(a), reenacted head- ing without change and amended text generally. Prior to amendment, text read as follows: ‘‘Paragraph (1) shall not apply to any transfer of a distribution made after the 60th day following the day on which the dis- tributee received the property distributed.’’ Subsec. (c)(4)(C). Pub. L. 107–16, § 636(b)(1), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: ‘‘any hardship distribution described in section 401(k)(2)(B)(i)(IV).’’ Subsec. (c)(8)(B). Pub. L. 107–16, § 617(c), inserted con- cluding provisions. Subsec. (c)(8)(B)(v). Pub. L. 107–16, § 641(a)(2)(A), added cl. (v). Subsec. (c)(8)(B)(vi). Pub. L. 107–16, § 641(b)(2), added cl. (vi). Subsec. (c)(9). Pub. L. 107–16, § 641(d), struck out be- fore period at end ‘‘; except that a trust or plan de- scribed in clause (iii) or (iv) of paragraph (8)(B) shall not be treated as an eligible retirement plan with re- spect to such distribution’’. Subsec. (c)(10). Pub. L. 107–16, § 641(a)(2)(B), added par. (10). Subsec. (f)(1). Pub. L. 107–16, § 641(e)(5), struck out ‘‘from an eligible retirement plan’’ after ‘‘rollover dis- tribution’’ in introductory provisions. Subsec. (f)(1)(A). Pub. L. 107–16, § 657(b), inserted be- fore comma at end ‘‘and that the automatic distribu- tion by direct transfer applies to certain distributions in accordance with section 401(a)(31)(B)’’. Pub. L. 107–16, § 641(e)(6), substituted ‘‘an eligible re- tirement plan’’ for ‘‘another eligible retirement plan’’. Subsec. (f)(1)(B). Pub. L. 107–16, § 641(e)(6), substituted ‘‘an eligible retirement plan’’ for ‘‘another eligible re- tirement plan’’. Subsec. (f)(1)(E). Pub. L. 107–16, § 641(c), added subpar. (E). Subsec. (f)(2)(A). Pub. L. 107–16, § 641(e)(4), substituted ‘‘, paragraph (4) of section 403(a), subparagraph (A) of section 403(b)(8), or subparagraph (A) of section 457(e)(16)’’ for ‘‘or paragraph (4) of section 403(a)’’. Subsec. (g)(1). Pub. L. 107–16, § 611(d)(1), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: ‘‘Notwith- standing subsections (e)(3) and (h)(1)(B), the elective deferrals of any individual for any taxable year shall be included in such individual’s gross income to the extent the amount of such deferrals for the taxable year ex- ceeds $7,000.’’ Subsec. (g)(1)(A). Pub. L. 107–16, title VI, § 617(b)(1), inserted at end ‘‘The preceding sentence shall not apply the portion of such excess as does not exceed the des- ignated Roth contributions of the individual for the taxable year.’’ Subsec. (g)(2)(A). Pub. L. 107–16, title VI, § 617(b)(2), inserted ‘‘(or would be included but for the last sen- tence thereof)’’ after ‘‘paragraph (1)’’. Subsec. (g)(4). Pub. L. 107–16, § 611(d)(3)(A), redesig- nated par. (5) as (4) and struck out heading and text of former par. (4). Text read as follows: ‘‘The limitation under paragraph (1) shall be increased (but not to an amount in excess of $9,500) by the amount of any em- ployer contributions for the taxable year described in paragraph (3)(C).’’ Subsec. (g)(5). Pub. L. 107–16, § 611(d)(3)(A), redesig- nated par. (6) as (5). Former par. (5) redesignated (4). Pub. L. 107–16, § 611(d)(2), reenacted heading without change and amended text generally. Prior to amend- ment, text read as follows: ‘‘The Secretary shall adjust the $7,000 amount under paragraph (1) at the same time and in the same manner as under section 415(d); except that any increase under this paragraph which is not a multiple of $500 shall be rounded to the next lowest multiple of $500.’’ Subsec. (g)(6). Pub. L. 107–16, § 611(d)(3)(A), redesig- nated par. (7) as (6). Former par. (6) redesignated (5). Subsec. (g)(7). Pub. L. 107–16, § 611(d)(3)(A), redesig- nated par. (8) as (7). Subsec. (g)(7)(B). Pub. L. 107–16, § 632(a)(3)(G), inserted ‘‘(as in effect before the enactment of the Economic Growth and Tax Relief Reconciliation Act of 2001’’ be- fore period at end. Subsec. (g)(8), (9). Pub. L. 107–16, § 611(d)(3)(A), redes- ignated par. (9) as (8). Former par. (8) redesignated (7). 1998—Subsec. (c)(4)(C). Pub. L. 105–206 added subpar. (C). 1997—Subsec. (g)(9). Pub. L. 105–34 added par. (9). 1996—Subsec. (c)(10). Pub. L. 104–188, § 1401(b)(2), struck out par. (10) which read as follows: ‘‘(10) DENIAL OF AVERAGING FOR SUBSEQUENT DISTRIBU- TIONS.—If paragraph (1) applies to any distribution paid to any employee, paragraphs (1) and (3) of subsection (d) shall not apply to any distribution (paid after such distribution) of the balance to the credit of the em- ployee under the plan under which the preceding dis- tribution was made (or under any other plan which, Page 1251 TITLE 26—INTERNAL REVENUE CODE § 402 under subsection (d)(4)(C), would be aggregated with such plan).’’ Subsec. (d). Pub. L. 104–188, § 1401(a), amended subsec. (d) generally, substituting provisions relating to tax- ability of beneficiary of certain foreign situs trusts for former provisions relating to tax on lump sum distribu- tions. Subsec. (e)(3). Pub. L. 104–188, § 1450(a)(2), inserted ‘‘or which is part of a salary reduction agreement under section 403(b)’’ after ‘‘section 401(k)(2))’’. Subsec. (e)(4)(D). Pub. L. 104–188, § 1401(b)(1), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: ‘‘(D) LUMP SUM DISTRIBUTION.—For purposes of this paragraph, the term ‘lump sum distribution’ has the meaning given such term by subsection (d)(4)(A) (with- out regard to subsection (d)(4)(F)).’’ Subsec. (e)(5). Pub. L. 104–188, § 1401(b)(13), struck out par. (5) which read as follows: ‘‘(5) TAXABILITY OF BENEFICIARY OF CERTAIN FOREIGN SITUS TRUSTS.—For purposes of subsections (a), (b), and (c), a stock bonus, pension, or profit-sharing trust which would qualify for exemption from tax under sec- tion 501(a) except for the fact that it is a trust created or organized outside the United States shall be treated as if it were a trust exempt from tax under section 501(a).’’ Subsec. (g)(3)(A). Pub. L. 104–188, § 1704(t)(68), sub- stituted ‘‘subsection (e)(3)’’ for ‘‘subsection (a)(8)’’. Subsec. (g)(3)(D). Pub. L. 104–188, § 1421(b)(9)(B), added subpar. (D). Subsec. (k). Pub. L. 104–188, § 1421(b)(3)(A), added sub- sec. (k). 1994—Subsec. (g)(5). Pub. L. 103–465 inserted before pe- riod at end ‘‘; except that any increase under this para- graph which is not a multiple of $500 shall be rounded to the next lowest multiple of $500’’. 1992—Subsecs. (a) to (d). Pub. L. 102–318, § 521(a), amended subsecs. (a) to (d) generally, substituting present provisions for former provisions which in sub- sec. (a) related to taxability of beneficiaries of exempt trusts, in subsec. (b) related to taxability of bene- ficiaries of nonexempt trusts, in subsec. (c) related to taxability of beneficiaries of certain foreign situs trusts, and subsec. (d) which had been previously re- pealed. Subsec. (e). Pub. L. 102–318, § 521, amended subsec. (e) generally, substituting provisions relating to other rules applicable to exempt trusts for provisions relat- ing to tax on lump sum distributions. Subsec. (e)(6). Pub. L. 102–318, § 522(c)(1), added par. (6). Subsec. (f). Pub. L. 102–318, § 521(a), amended subsec. (f) generally, substituting present provisions for provi- sions requiring a different time when explanation was to be provided and a different content of explanation to be given and using different definitions for ‘‘eligible rollover distribution’’ and ‘‘eligible retirement plan’’. Subsec. (g)(1). Pub. L. 102–318, § 521(b)(9), substituted ‘‘subsections (e)(3)’’ for ‘‘subsections (a)(8)’’. Subsec. (i). Pub. L. 102–318, § 521(b)(10), substituted ‘‘subsection (d)(4)’’ for ‘‘subsection (e)(4)’’. Subsec. (j)(1). Pub. L. 102–318, § 521(b)(11), substituted ‘‘(e)(4)’’ for ‘‘(a)(1) or (e)(4)(J)’’. 1990—Subsec. (a)(3)(B). Pub. L. 101–508, § 11801(c)(9)(I)(i), substituted ‘‘section 424’’ for ‘‘section 425’’. Subsec. (a)(6)(B)(i). Pub. L. 101–508, § 11801(c)(9)(I)(ii), substituted ‘‘section 424(f)’’ for ‘‘section 425(f)’’. 1989—Subsec. (e)(7). Pub. L. 101–239, § 7811(i)(13), added par. (7). Subsec. (g)(3). Pub. L. 101–239, § 7811(g)(2), inserted ‘‘involving a one-time irrevocable election’’ after ‘‘similar arrangement’’ in last sentence. 1988—Subsec. (a)(1). Pub. L. 100–647, § 1011A(b)(8)(A), substituted ‘‘paragraph (4)’’ for ‘‘paragraphs (2) and (4)’’. Subsec. (a)(4). Pub. L. 100–647, § 1011A(b)(8)(B), struck out ‘‘or (2)’’ after ‘‘under paragraph (1)’’. Subsec. (a)(5)(D)(i). Pub. L. 100–647, § 1011A(b)(4)(C), inserted at end ‘‘Any distribution described in section 401(a)(28)(B)(ii) shall be treated as meeting the require- ments of subclauses (I) and (II).’’ Pub. L. 100–647, § 1011A(b)(4)(A), repealed amendment by Pub. L. 99–514, § 1122(e)(1), which had amended cl. (i) generally, and provided that the Internal Revenue Code of 1986 shall be applied and administered as if such amendment had not been enacted. See 1986 Amendment note and Effective Date of 1988 Amendment note below. Subsec. (a)(5)(D)(i)(I). Pub. L. 100–647, § 1011A(b)(4)(B), inserted ‘‘is payable as provided in clause (i), (iii), or (iv) of subsection (e)(4)(A) (without regard to the sec- ond sentence thereof) and’’ after ‘‘(I) such distribu- tion’’. Subsec. (a)(5)(D)(iii). Pub. L. 100–647, § 1011A(b)(4)(D), struck out ‘‘10-year’’ after ‘‘Denial of’’ in heading. Subsec. (a)(5)(F). Pub. L. 100–647, § 1011A(a)(1), sub- stituted ‘‘resulting in any portion of a distribution being excluded from gross income under subparagraph (A)’’ for ‘‘described in subparagraph (A)’’. Subsec. (a)(6)(C). Pub. L. 100–647, § 1011A(b)(8)(C), struck out ‘‘paragraph (2) of subsection (a), and’’ after ‘‘paragraph (5)(A) applies,’’. Subsec. (a)(6)(E)(ii). Pub. L. 100–647, § 1011A(b)(8)(D), substituted ‘‘then paragraphs (1) and (3) of subsection (e) shall’’ for ‘‘then paragraph (2) of subsection (a), and paragraphs (1) and (3) of subsection (e), shall’’. Subsec. (a)(6)(G). Pub. L. 100–647, § 1018(t)(8)(A), redes- ignated subpar. (G), relating to treatment of potential future vesting, as (I). Subsec. (a)(6)(H)(ii). Pub. L. 100–647, § 1011A(b)(5), in- serted at end ‘‘A deposit shall not be treated as a frozen deposit unless on at least 1 day during the 60-day period described in paragraph (5)(C) (without regard to this subparagraph) such deposit is described in the pre- ceding sentence.’’ Subsec. (a)(6)(I). Pub. L. 100–647, § 1018(t)(8)(A), redes- ignated subpar. (G), relating to treatment of potential future vesting, as (I). Subsec. (b)(2)(A). Pub. L. 100–647, § 1011(h)(4), added subpar. (A) and struck out former subpar. (A) which re- lated to trust which is not exempt from tax under sec- tion 501(a) because plan fails to meet requirements of section 410(b). Subsec. (b)(2)(B). Pub. L. 100–647, § 1011(h)(4), added subpar. (B) and struck out former subpar. (B) which re- lated to failure of plan to meet requirements of section 410(b) for more than 1 taxable year. Subsec. (e)(1)(A). Pub. L. 100–647, § 1011A(b)(8)(E), struck out ‘‘ordinary income portion of a’’ after ‘‘sub- paragraph (B)) on the’’. Subsec. (e)(1)(B). Pub. L. 100–647, § 1011A(b)(10), in- serted at end ‘‘For purposes of the preceding sentence, in determining the amount of tax under section 1(c), section 1(g) shall be applied without regard to para- graph (2)(B) thereof.’’ Pub. L. 100–647, § 1018(u)(1), made technical correction to directory language of Pub. L. 99–514, § 104(b)(5). See 1986 Amendment note below. Pub. L. 100–647, § 1018(u)(6), related to execution of amendment by Pub. L. 99–514, § 1122(b)(2)(B), see 1986 Amendment note below. Subsec. (e)(3). Pub. L. 100–647, § 1018(u)(7), related to execution of amendment by Pub. L. 99–514, § 1122(b)(2)(C), see 1986 Amendment note below. Subsec. (e)(4)(A). Pub. L. 100–647, § 1011A(b)(8)(F), in concluding provisions, substituted ‘‘A’’ for ‘‘Except for purposes of subsection (a)(2) and section 403(a)(2), a’’, and struck out ‘‘subsection (a)(2) of this section, and subsection (a)(2) of section 403,’’ before ‘‘the balance to’’. Subsec. (e)(4)(B)(i). Pub. L. 100–647, § 1011A(b)(6), sub- stituted ‘‘employee’’ for ‘‘taxpayer’’. Subsec. (e)(4)(I). Pub. L. 100–647, § 1011A(c)(9), struck out ‘‘clause (ii) of’’ after ‘‘amounts described in’’. Subsec. (e)(4)(J). Pub. L. 100–647, § 1011A(b)(7), amend- ed last sentence generally. Prior to amendment, last sentence read as follows: ‘‘To the extent provided by the Secretary, a taxpayer may elect before any dis- tribution not to have this paragraph apply with respect to such distribution.’’ Page 1252 TITLE 26—INTERNAL REVENUE CODE § 402 Subsec. (e)(4)(L). Pub. L. 100–647, § 1011A(b)(8)(G), struck out subpar. (L) which related to election to treat pre-1974 participation as post-1973 participation. Subsec. (e)(4)(M). Pub. L. 100–647, § 1011A(b)(8)(H), struck out ‘‘, subsection (a)(2) of this section, and sec- tion 403(a)(2)’’ after ‘‘of this subsection’’. Subsec. (e)(4)(O). Pub. L. 100–647, § 6068(a), added sub- par. (O). Subsec. (e)(5). Pub. L. 100–647, § 1011A(b)(8)(I), struck out ‘‘and paragraph (2) of subsection (a)’’ after ‘‘of this subsection’’. Subsec. (e)(6)(C). Pub. L. 100–647, § 1011A(b)(8)(J), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: ‘‘For purposes of this para- graph, special lump sum treatment applies to any dis- tribution if any portion of such distribution— ‘‘(i) is taxed under this subsection by reason of an election under paragraph (4)(B), or ‘‘(ii) is treated as long-term capital gain under sub- section (a)(2) of this section or section 403(a)(2).’’ Subsec. (f)(1). Pub. L. 100–647, § 1018(t)(8)(C), sub- stituted ‘‘an eligible’’ for ‘‘a eligible’’. Subsec. (g). Pub. L. 100–647, § 1011(c)(6)(B), redesig- nated subsec. (g), relating to effect of disposition of stock by plan on net unrealized appreciation, as (j). Pub. L. 100–647, § 1011(c)(6)(A), redesignated subsec. (g), relating to treatment of self-employed individuals, as (i). Subsec. (g)(2). Pub. L. 100–647, § 1011(c)(2), substituted ‘‘Distribution’’ for ‘‘Required distribution’’ in heading. Subsec. (g)(2)(C). Pub. L. 100–647, § 1011(c)(1), struck out ‘‘(and no tax shall be imposed under section 72(t))’’ after ‘‘in gross income’’, in cl. (i), substituted ‘‘such in- come is distributed’’ for ‘‘such excess deferral is made’’ in cl. (ii), and inserted at end ‘‘No tax shall be imposed under section 72(t) on any distribution described in the preceding sentence.’’ Subsec. (g)(2)(D). Pub. L. 100–647, § 1011(c)(3), added subpar. (D). Subsec. (g)(3). Pub. L. 100–647, § 1011(c)(4), substituted ‘‘this subsection’’ for ‘‘this paragraph’’. Pub. L. 100–647, § 1011(c)(11), inserted at end ‘‘An em- ployer contribution shall not be treated as an elective deferral described in subparagraph (C) if under the sal- ary reduction agreement such contribution is made pursuant to a one-time irrevocable election made by the employee at the time of initial eligibility to par- ticipate in the agreement or is made pursuant to a similar arrangement specified in regulations.’’ Subsec. (g)(8)(A)(iii). Pub. L. 100–647, § 1011(c)(5)(A), inserted ‘‘(determined in the manner prescribed by the Secretary)’’ after ‘‘prior taxable years’’. Subsec. (g)(8)(D). Pub. L. 100–647, § 1011(c)(5)(B), added subpar. (D). Subsec. (i). Pub. L. 100–647, § 1011(c)(6)(A), redesig- nated subsec. (g), relating to treatment of self-em- ployed individuals, as (i). Subsec. (j). Pub. L. 100–647, § 1011(c)(6)(B), redesig- nated subsec. (g), relating to effect of disposition of stock by plan on net unrealized appreciation, as (j). 1986—Subsec. (a)(2). Pub. L. 99–514, § 1122(b)(1)(A), struck out par. (2) relating to capital gains treatment for portion of lump sum distribution. Subsec. (a)(5)(D)(i). Pub. L. 99–514, § 1122(e)(1), amend- ed cl. (i) generally, to read as follows: ‘‘Subparagraph (A) shall apply to a partial distribution only if the em- ployee elects to have subparagraph (A) apply to such distribution and such distribution would be a lump sum distribution if subsection (e)(4)(A) were applied— ‘‘(I) by substituting ‘50 percent of the balance to the credit of an employee’ for ‘the balance to the credit of an employee’, ‘‘(II) without regard to clause (ii) thereof, the sec- ond sentence thereof, and subparagraph (B) of sub- section (e)(4). Any distribution described in section 401(a)(28)(B)(ii) shall be treated as meeting the requirements of this clause.’’ This amendment was repealed by Pub. L. 100–647, § 1011A(b)(4)(A). See 1988 Amendment note above. Pub. L. 99–514, § 1852(b)(2), inserted at end ‘‘For pur- poses of subclause (I), the balance to the credit of the employee shall not include any accumulated deductible employee contributions (within the meaning of section 72(o)(5)).’’ Subsec. (a)(5)(D)(ii). Pub. L. 99–514, § 1852(b)(5), sub- stituted ‘‘a trust or plan described in subclause (III) or (IV)’’ for ‘‘a plan described in subclause (IV) or (V)’’. Subsec. (a)(5)(D)(iii). Pub. L. 99–514, § 1122(b)(2)(A), struck out ‘‘and capital gains treatment’’ in heading and amended text generally. Prior to amendment, cl. (iii) read as follows: ‘‘If an election under clause (i) is made with respect to any partial distribution paid to any employee— ‘‘(I) paragraph (2) of this subsection, ‘‘(II) paragraphs (1) and (3) of subsection (e), and ‘‘(III) paragraph (2) of section 403(a), shall not apply to any distribution (paid after such par- tial distribution) of the balance to the credit of such employee under the plan under which such partial dis- tribution was made (or under any other plan which, under subsection (e)(4)(C), would be aggregated with such plan).’’ Subsec. (a)(5)(E)(v). Pub. L. 99–514, § 1852(b)(1), sub- stituted ‘‘of all or any portion of’’ for ‘‘of any portion of’’. Subsec. (a)(5)(F). Pub. L. 99–514, § 1121(c)(1), amended subpar. (F) generally. Prior to amendment, subpar. (F) heading read ‘‘Special rules’’ and text read as follows: ‘‘(i) Transfer treated as rollover contribution under sec- tion 408 ‘‘For purposes of this title, a transfer resulting in any portion of a distribution being excluded from gross in- come under subparagraph (A) to an eligible retirement plan described in subclause (I) or (II) of subparagraph (E)(iv) shall be treated as a rollover contribution de- scribed in section 408(d)(3). ‘‘(ii) 5-percent owners ‘‘An eligible retirement plan described in subclause (III) or (IV) of subparagraph (E)(iv) shall not be treated as an eligible retirement plan for the transfer of a dis- tribution if the employee is a 5-percent owner at the time such distribution is made. For purposes of the pre- ceding sentence, the term ‘5-percent owner’ means any individual who is a 5-percent owner (as defined in sec- tion 416(i)(1)(B)) at any time during the 5 plan years preceding the plan year in which the distribution is made.’’ Pub. L. 99–514, § 1852(b)(6), in cl. (i) substituted ‘‘a transfer resulting in any portion of a distribution being excluded from gross income under subparagraph (A)’’ for ‘‘a transfer described in subparagraph (A)’’. Pub. L. 99–514, § 1875(c)(1)(A), amended cl. (ii) gen- erally. Prior to amendment, cl. (ii), key employees, read as follows: ‘‘An eligible retirement plan described in subclause (III) or (IV) of subparagraph (E)(iv) shall not be treated as an eligible retirement plan for the transfer of a distribution if any part of the distribution is attributable to contributions made on behalf of the employee while he was a key employee in a top-heavy plan. For purposes of the preceding sentence, the terms ‘key employee’ and ‘top-heavy plan’ have the same re- spective meanings as when used in section 416.’’ Subsec. (a)(5)(G). Pub. L. 99–514, § 1852(a)(5)(A), added subpar. (G). Subsec. (a)(6)(D)(v). Pub. L. 99–514, § 1852(b)(7), sub- stituted ‘‘(7)’’ for ‘‘(7)(B)’’. Subsec. (a)(6)(F). Pub. L. 99–514, § 1898(c)(7)(A)(i), sub- stituted ‘‘paragraph (5)’’ for ‘‘paragraph (5)(A)’’. Subsec. (a)(6)(G). Pub. L. 99–514, § 1898(a)(3), added subpar. (G) relating to treatment of potential future vesting. Pub. L. 99–272 added subpar. (G) relating to payments from certain pension plan termination trusts. Subsec. (a)(6)(H). Pub. L. 99–514, § 1122(e)(2)(A), added subpar. (H). Subsec. (a)(7). Pub. L. 99–514, § 1852(b)(4), inserted ‘‘; except that a trust or plan described in subclause (III) or (IV) of paragraph (5)(E)(iv) shall not be treated as an eligible retirement plan with respect to such dis- tribution’’ after ‘‘the spouse were the employee’’. Page 1253 TITLE 26—INTERNAL REVENUE CODE § 402 Subsec. (a)(9). Pub. L. 99–514, § 1898(c)(1)(A), sub- stituted ‘‘any alternate payee who is the spouse or former spouse of the participant shall be treated’’ for ‘‘the alternate payee shall be treated’’. Subsec. (b). Pub. L. 99–514, § 1112(c), designated exist- ing provisions as par. (1), inserted par. (1) heading, and added par. (2). Pub. L. 99–514, § 1852(c)(5), substituted ‘‘section 72(e)(5)’’ for ‘‘section 72(e)(1)’’. Subsec. (e)(1)(B). Pub. L. 99–514, § 1122(b)(2)(B), and Pub. L. 100–647, § 1018(u)(6), redesignated subpar. (C) as (B), substituted ‘‘Amount of tax’’ for ‘‘Initial separate tax’’ in heading and ‘‘The amount of tax imposed by subparagraph (A)’’ for ‘‘The initial separate tax’’, and struck out former subpar. (B) which related to com- putation of tax on lump sum distributions. Pub. L. 99–514, § 104(b)(5), as amended by Pub. L. 100–647, § 1018(u)(1), struck out ‘‘the zero bracket amount applicable to such individual for the taxable year plus’’ after ‘‘amount equal to’’. Pub. L. 99–514, § 1122(a)(2)(A), (B), substituted ‘‘5’’ for ‘‘10’’ and ‘‘1⁄5’’ for ‘‘one-tenth’’. Subsec. (e)(1)(C) to (E). Pub. L. 99–514, § 1122(b)(2)(B)(i), redesignated subpars. (C) to (E) as (B) to (D), respectively. Subsec. (e)(3). Pub. L. 99–514, § 1122(b)(2)(C), and Pub. L. 100-647, § 1018(u)(7), substituted ‘‘total taxable amount’’ for ‘‘ordinary income portion’’. Subsec. (e)(4)(B). Pub. L. 99–514, § 1122(a)(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘For purposes of this section and sec- tion 403, no amount which is not an annuity contract may be treated as a lump sum distribution under sub- paragraph (A) unless the taxpayer elects for the taxable year to have all such amounts received during such year so treated at the time and in the manner provided under regulations prescribed by the Secretary. Not more than one election may be made under this sub- paragraph with respect to any individual after such in- dividual has attained age 591⁄2. No election may be made under this subparagraph by any taxpayer other than an individual, an estate, or a trust. In the case of a lump sum distribution made with respect to an employee to two or more trusts, the election under this subpara- graph shall be made by the personal representative of the employee.’’ Subsec. (e)(4)(E). Pub. L. 99–514, § 1122(b)(2)(D), struck out subpar. (E) defining ‘‘ordinary income portion’’ with respect to a lump sum distribution. Subsec. (e)(4)(F). Pub. L. 99–514, § 1852(b)(3)(B), struck out subpar. (F) defining ‘‘employee’’. See subsec. (g) of this section relating to treatment of self-employed in- dividuals. Subsec. (e)(4)(H). Pub. L. 99–514, § 1122(b)(2)(E), struck out ‘‘(but not for purposes of subsection (a)(2) or sec- tion 403(a)(2)(A))’’ after ‘‘For purposes of this sub- section’’. Subsec. (e)(4)(J). Pub. L. 99–514, § 1122(g), inserted at end ‘‘To the extent provided by the Secretary, a tax- payer may elect before any distribution not to have this paragraph apply with respect to such distribu- tion.’’ Subsec. (e)(4)(N). Pub. L. 99–514, § 1106(c)(2), added sub- par. (N). Subsec. (e)(6). Pub. L. 99–514, § 1898(a)(2), added par. (6). Subsec. (f)(1). Pub. L. 99–514, § 1898(e)(1), substituted ‘‘eligible rollover distribution’’ for ‘‘qualifying rollover distribution’’. Subsec. (f)(2). Pub. L. 99–514, § 1898(e)(2), amended par. (2) generally. Prior to amendment, par. (2) read as fol- lows: ‘‘For purposes of this subsection, the terms ‘qualifying rollover distribution’ and ‘eligible retire- ment plan’ have the respective meanings given such terms by subsection (a)(5)(E).’’ Subsec. (g). Pub. L. 99–514, § 1854(f)(2), added subsec. (g) relating to effect of disposition of stock by plan on net unrealized appreciation. Pub. L. 99–514, § 1852(b)(3)(A), added subsec. (g) relat- ing to treatment of self-employed individuals. Pub. L. 99–514, § 1105(a), added subsec. (g) relating to limitation on exclusion for elective deferrals. Subsec. (h). Pub. L. 99–514, § 1108(b), added subsec. (h). 1984—Subsec. (a)(2). Pub. L. 98–369, § 1001(b)(3), sub- stituted ‘‘6 months’’ for ‘‘1 year’’. Subsec. (a)(5)(A)(i). Pub. L. 98–369, § 522(a)(1), sub- stituted ‘‘any portion of the balance to the credit of an employee in a qualified trust is paid to him’’ for ‘‘the balance to the credit of an employee in a qualified trust is paid to him in a qualifying rollover distribu- tion’’. Subsec. (a)(5)(B). Pub. L. 98–369, § 522(d)(1)(A), (2), sub- stituted ‘‘qualified total distribution’’ for ‘‘qualifying rollover distribution’’, and inserted ‘‘In the case of any partial distribution, the maximum amount transferred to which subparagraph (A) applies shall not exceed the portion of such distribution which is includible in gross income (determined without regard to subparagraph (A)).’’ Subsec. (a)(5)(D). Pub. L. 98–369, § 522(b), added subpar. (D). Former subpar. (D) redesignated (E). Subsec. (a)(5)(D)(iv)(III)–(V). Pub. L. 98–369, § 491(d)(9), struck out subcl. (III), which included a retirement bond described in section 409 within term ‘‘eligible re- tirement plan’’ and redesignated former subcls. (IV) and (V) and (III) and (IV), respectively. Subsec. (a)(5)(E). Pub. L. 98–369, § 522(b), redesignated subpar. (D) as (E). Former subpar. (E) redesignated (F). Subsec. (a)(5)(E)(i). Pub. L. 98–369, § 522(d)(1)(B), sub- stituted ‘‘qualified total distribution’’ for ‘‘qualifying rollover distribution’’ in heading and text. Subsec. (a)(5)(E)(ii)(II). Pub. L. 98–369, § 522(d)(3), sub- stituted ‘‘gross income (determined without regard to this paragraph)’’ for ‘‘gross income’’. Subsec. (a)(5)(E)(v). Pub. L. 98–369, § 522(d)(4), sub- stituted provision dealing with partial distribution for provision dealing with rollover of partial distributions of deductible employee contributions permitted. Subsec. (a)(5)(F). Pub. L. 98–369, § 522(b), redesignated subpar. (E) as (F). Subsec. (a)(5)(F)(i). Pub. L. 98–369, § 522(d)(5), sub- stituted ‘‘subparagraph (E)(iv)’’ for ‘‘subparagraph (D)(iv)’’. Pub. L. 98–369, § 491(d)(10), substituted ‘‘or (II)’’ for ‘‘, (II), or (III)’’. Subsec. (a)(5)(F)(ii). Pub. L. 98–369, § 522(d)(5), sub- stituted ‘‘subparagraph (E)(iv)’’ for ‘‘subparagraph (D)(iv)’’. Pub. L. 98–369, § 491(d)(11), substituted ‘‘(III) or (IV)’’ for ‘‘(IV) and (V)’’. Pub. L. 98–369, § 713(c)(3), substituted ‘‘Key employ- ees’’ for ‘‘Self-employed individuals and owner-employ- ees’’ in heading and ‘‘attributable to contributions made on behalf of the employee while he was a key em- ployee in a top-heavy plan’’ for ‘‘attributable to a trust forming part of a plan under which the employee was an employee within the meaning of section 401(c)(1) at the time contributions were made on his behalf under the plan’’ in text, and inserted sentence adopting the meaning of ‘‘key employee’’ and ‘‘top-heavy plan’’ used in section 416. Subsec. (a)(6)(A), (B). Pub. L. 98–369, § 522(d)(6), sub- stituted ‘‘paragraph (5)(E)(i)’’ for ‘‘paragraph (5)(D)(i)’’. Subsec. (a)(6)(D)(iii), (iv). Pub. L. 98–369, § 522(d)(7), substituted ‘‘employee contributions (or, in the case of a partial distribution, the amount not includible in gross income)’’ for ‘‘employee contributions’’. Subsec. (a)(6)(E)(i). Pub. L. 98–369, § 522(d)(1)(C), (8), substituted ‘‘qualified total distribution’’ for ‘‘quali- fying rollover distribution’’, and ‘‘paragraph (5)(D) or (5)(E)(i)(II)’’ for ‘‘paragraph (5)(D)(i)(II)’’. Subsec. (a)(6)(F). Pub. L. 98–397, § 204(c)(3), added sub- par. (F). Subsec. (a)(7). Pub. L. 98–369, § 522(c), substituted pro- visions relating to rollover where spouse receives dis- tributions after death of employee for provisions deal- ing with rollover where spouse receives lump-sum dis- tribution at death of employee. Subsec. (a)(9). Pub. L. 98–397, § 204(c)(1), added par. (9). Subsec. (e)(4)(L). Pub. L. 98–369, § 1001(b)(3), sub- stituted ‘‘6 months’’ for ‘‘1 year’’, applicable to prop- Page 1254 TITLE 26—INTERNAL REVENUE CODE § 402 erty acquired after June 22, 1984, and before Jan. 1, 1988. See Effective Date of 1984 Amendment note below. Subsec. (e)(4)(M). Pub. L. 98–397, § 204(c)(4), added sub- par. (M). Subsec. (e)(5). Pub. L. 98–369, § 491(c)(2), added par. (5). Subsec. (f). Pub. L. 98–397, § 207(a), added subsec. (f). 1983—Subsec. (a)(5)(D)(v). Pub. L. 97–448, § 103(c)(8)(A), added cl. (v). Subsec. (e)(1)(C). Pub. L. 97–448, § 101(b), substituted ‘‘the zero bracket amount applicable to such an indi- vidual for the taxable year’’ for ‘‘$2,300’’. Subsec. (e)(4)(A). Pub. L. 97–448, § 103(c)(7), substituted ‘‘this subsection, subsection (a)(2) of this section, and subsection (a)(2) of section 403’’ for ‘‘this section and section 403’’ in last sentence. Subsec. (e)(4)(J). Pub. L. 97–448, § 103(c)(12)(D), amend- ed Pub. L. 97–34, § 311(c)(2) [see 1981 Amendment note below], by substituting ‘‘section 72(o)(5)’’ for ‘‘section 77(o)(5)’’ in last sentence of subpar. (j). 1981—Subsec. (a)(1). Pub. L. 97–34, § 311(c)(1), inserted ‘‘(other than deductible employee contributions within the meaning of section 72(o)(5))’’. Pub. L. 97–34, § 314(c)(1), struck out ‘‘or made avail- able’’ after ‘‘distributed’’ in three places. Subsec. (a)(5). Pub. L. 97–34, § 311(b)(3)(A), inserted ‘‘(other than accumulated deductible employee con- tributions within the meaning of section 72(o)(5))’’ after ‘‘contributions’’ in subpar. (B) and added subcl. (III) in subpar. (D). Subsec. (e)(4). Pub. L. 97–34, § 311(b)(2), (c)(2), added to subpar. (A) provision that for purposes of sections 402 and 403, the balance to the credit of the employee does not include the accumulated deductible employee con- tributions under the plan (within the meaning of sec- tion 72(o)(5)), and added subpar. (J) provision making subpar. (J) inapplicable to distributions of accumulated deductible employee contributions (within the meaning of section 77(o)(5)). See 1983 Amendment note above. 1980—Subsec. (a)(6)(D)(iii). Pub. L. 96–222, § 101(a)(14)(E)(i), substituted ‘‘may designate’’ for ‘‘many designate’’. Subsec. (a)(6)(E). Pub. L. 96–608 added subpar. (E). Subsec. (a)(7)(A)(i). Pub. L. 96–222, § 101(a)(14)(C), sub- stituted ‘‘qualifying rollover distribution attributable to an employee is paid to the spouse of the employee after’’ for ‘‘lump-sum distribution from a qualified trust is paid to the spouse of the employee on account of’’. 1978—Subsec. (a)(5). Pub. L. 95–458, § 4(a), among other changes, substituted provision permitting tax-free treatment for any portion of a lump sum distribution from a qualified retirement plan which is deposited in an individual retirement account or another qualifying plan for provision which required transfer of all such property received. Subsec. (a)(5)(D)(i)(II). Pub. L. 95–600, § 157(h)(1), sub- stituted ‘‘subparagraphs (B) and (H) of subsection (e)(4)’’ for ‘‘subsection (e)(4)(B)’’. Subsec. (a)(6). Pub. L. 95–458, § 4(c), in provision pre- ceding subpar. (A) struck out ‘‘For purposes of para- graph (5)(A)(i)’’, in subpar. (A) substituted ‘‘For pur- poses of paragraph (5)(D)(i), a complete’’ for ‘‘A com- plete’’, in subpar. (B) inserted ‘‘For purposes of para- graph (5)(D)(i)—’’ after ‘‘assets.—’’ in provision pre- ceding cl. (i), and added subpar. (C). Subsec. (a)(6)(D). Pub. L. 95–600, § 157(f)(1), added sub- par. (D). Subsec. (a)(7). Pub. L. 95–600, § 157(g)(1), added par. (7). Subsec. (a)(8). Pub. L. 95–600, § 135(b), added par. (8). Subsec. (e)(1)(C). Pub. L. 95–600, § 101(d)(1), substituted ‘‘$2,300’’ for ‘‘$2,200’’. 1977—Subsec. (e)(1)(C). Pub. L. 95–30 substituted ‘‘amount equal to $2,200 plus one-tenth of the excess of’’ for ‘‘amount equal to one-tenth of the excess of’’ in pro- visions preceding cl. (i). 1976—Subsec. (a)(1). Pub. L. 94–455, § 1906(b)(13)(A), struck out ‘‘or his delegate’’ after ‘‘Secretary’’. Subsec. (a)(2). Pub. L. 94–455, § 1402(b)(2), provided that ‘‘9 months’’ would be changed to ‘‘1 year’’. Pub. L. 94–455, §§ 1402(b)(1)(C), 1906(b)(13)(A), provided that ‘‘6 months’’ would be changed to ‘‘9 months’’ for taxable years beginning in 1977 and struck out ‘‘or his delegate’’ after ‘‘Secretary’’. Subsec. (a)(4). Pub. L. 94–455, § 1901(a)(57)(A), sub- stituted ‘‘basic pay’’ for ‘‘basic salary’’, ‘‘civil service retirement laws’’ for ‘‘Civil Service Retirement Act (5 U.S.C. 2251)’’, and ‘‘section 8331(3) of title 5, United States Code’’ for ‘‘section 1(d) of such Act’’. Subsec. (a)(5). Pub. L. 94–267, § 1(a)(2), substituted ‘‘a payment’’ for ‘‘the lump-sum distribution’’. Subsec. (a)(5)(A). Pub. L. 94–267, § 1(a)(1), restructured provision by adding cl. (i) and designating existing pro- vision as cl. (ii). Subsec. (a)(6). Pub. L. 94–267, § 1(a)(3), added par. (6). Subsec. (a)(6)(A). Pub. L. 94–455, § 1906(b)(13)(A), struck out ‘‘or his delegate’’ after ‘‘Secretary’’. Subsec. (d). Pub. L. 94–455, § 1901(a)(57)(B), struck out subsec. (d) which related to certain trust agreements made before Oct. 21, 1942. Subsec. (e)(2). Pub. L. 94–455, § 1906(b)(13)(A), struck out ‘‘or his delegate’’ after ‘‘Secretary’’. Subsec. (e)(4)(A). Pub. L. 94–455, § 1901(a)(57)(C)(i), sub- stituted ‘‘Except for purposes of subsection (a)(2) and section 403(a)(2)’’ for ‘‘For purposes of this subpara- graph’’. Subsec. (e)(4)(B), (J). Pub. L. 94–455, § 1906(b)(13)(A), struck out ‘‘or his delegate’’ after ‘‘Secretary’’. Subsec. (e)(4)(L). Pub. L. 94–455, § 1402(b)(2), sub- stituted ‘‘1 year’’ for ‘‘9 months’’. Pub. L. 94–455, §§ 1402(b)(1)(C), 1512(a), added subsec. (e)(4)(L) to be applicable to distributions and payments after Dec. 31, 1975, in taxable years beginning after Dec. 31, 1975, and provided that ‘‘6 months’’ would be changed to ‘‘9 months’’ for taxable years beginning in 1977. 1974—Subsec. (a)(2). Pub. L. 93–406, § 2005(b)(1), sub- stituted provisions covering capital gains treatment of portions of lump sum distributions determined through the application of a fraction formula susceptible of pro- ducing a phaseout of capital gains treatment for provi- sions covering capital gains treatment of portions of lump sum distributions determined on a fixed formula. Subsec. (a)(3)(C). Pub. L. 93–406, § 2005(c)(1), struck out subsec. (a)(3)(C) which defined ‘‘total distribution pay- able’’. Subsec. (a)(5). Pub. L. 93–406, §§ 2002(g)(5), 2005(c)(2), substituted provisions covering rollover amounts for provisions covering limitation on capital gains treat- ment. Subsec. (e). Pub. L. 93–406, § 2005(a), substituted provi- sions covering tax on lump sum distributions for provi- sions covering plan termination distributions made after Dec. 31, 1953, and before Jan. 1, 1955. 1969—Subsec. (a)(5). Pub. L. 91–172, § 515(a)(1), added par. (5). Subsec. (b). Pub. L. 91–172, § 321(b)(1), substituted pro- vision for inclusion of contributions made by an em- ployer to a nonexempt trust in the ‘‘gross income of the employee in accordance with section 83 (relating to property transferred in connection with performance of services), except that the value of the employee’s inter- est in the trust shall be substituted for the fair market value of the property for purposes of applying such sec- tion’’ for prior provision for inclusion in the ‘‘gross in- come of an employee for the taxable year in which the contribution is made to the trust in the case of an em- ployee whose beneficial interest in such contribution is nonforfeitable at the time the contribution is made’’, and provided that distributions of income of such trust before the annuity starting date (as defined in section 72(c)(4)) shall be included in the gross income of the employee without regard to section 72(e)(1) (relating to amount not received as annuities) and that a bene- ficiary of any such trust shall not be considered the owner of any portion of such trust under subpart E of part I of subch. J (relating to grantors and others treat- ed as substantial owners). 1964—Subsec. (a)(1). Pub. L. 88–272, § 232(e)(1), struck out ‘‘except that section 72(e)(3) shall not apply’’ after ‘‘(relating to annuities)’’. Subsec. (a)(3)(B). Pub. L. 88–272, § 221(c)(1), substituted ‘‘subsections (e) and (f) of section 425’’ for ‘‘section 421(d)(2) and (3)’’. Page 1255 TITLE 26—INTERNAL REVENUE CODE § 402 Subsecs. (b), (d). Pub. L. 88–272, § 232(e)(2), (3), struck out ‘‘except that section 72(e)(3) shall not apply’’ after ‘‘(relating to annuities)’’. 1962—Subsec. (a)(2). Pub. L. 87–792 inserted sentence providing that this paragraph shall not apply to dis- tributions paid to any distributee to the extent such distributions are attributable to contributions made on behalf of the employee while he was an employee with- in the meaning of section 401(c)(1). 1960—Subsec. (a)(1). Pub. L. 86–437, § 2(a), substituted ‘‘paragraphs (2) and (4)’’ for ‘‘paragraph (2)’’. Subsec. (a)(4). Pub. L. 86–437, § 1, added par. (4). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2022 AMENDMENT Pub. L. 117–328, div. T, title III, § 301(c), Dec. 29, 2022, 136 Stat. 5338, provided that: ‘‘The amendments made by this section [amending this section, section 414 of this title, and section 1056 of Title 29, Labor] shall apply as of the date of the enactment of this Act [Dec. 29, 2022].’’ Pub. L. 117–328, div. T, title III, § 328(b), Dec. 29, 2022, 136 Stat. 5360, provided that: ‘‘The amendment made by this section [amending this section] shall apply to dis- tributions made after the date of the enactment of this Act [Dec. 29, 2022].’’ Amendment by section 331(b)(2) of Pub. L. 117–328 ap- plicable to recontributions of withdrawals for home purchases with respect to disasters the incident period (as defined in section 72(t)(11)(F)(ii) of this title) for which begins on or after the date which is 30 days after Dec. 27, 2020, see section 331(b)(3) of Pub. L. 117–328, set out as a note under section 72 of this title. Pub. L. 117–328, div. T, title VI, § 601(e), Dec. 29, 2022, 136 Stat. 5390, provided that: ‘‘The amendments made by this section [amending this section and sections 408 and 408A of this title] shall apply to taxable years be- ginning after December 31, 2022.’’ Pub. L. 117–328, div. T, title VI, § 603(c), Dec. 29, 2022, 136 Stat. 5392, provided that: ‘‘The amendments made by this section [amending this section and sections 414 and 457 of this title] shall apply to taxable years begin- ning after December 31, 2023.’’ EFFECTIVE DATE OF 2020 AMENDMENT Amendment by Pub. L. 116–136 applicable for calendar years beginning after Dec. 31, 2019, with additional pro- visions relating to plan or contract amendments, see section 2203(c) of Pub. L. 116–136, set out as a note under section 401 of this title. EFFECTIVE DATE OF 2017 AMENDMENT Pub. L. 115–97, title I, § 13613(c), Dec. 22, 2017, 131 Stat. 2166, provided that: ‘‘The amendments made by this section [amending this section] shall apply to plan loan offset amounts which are treated as distributed in tax- able years beginning after December 31, 2017.’’ EFFECTIVE DATE OF 2014 AMENDMENT Amendment by Pub. L. 113–295 effective Dec. 19, 2014, subject to a savings provision, see section 221(b) of Pub. L. 113–295, set out as a note under section 1 of this title. EFFECTIVE DATE OF 2013 AMENDMENT Amendment by Pub. L. 112–239 effective Jan. 2, 2013, and applicable to matters pending on Jan. 2, 2013, or filed or accruing after that date, with certain excep- tions, see section 1086(d) of Pub. L. 112–239, set out as a note under section 10251 of Title 34, Crime Control and Law Enforcement. EFFECTIVE DATE OF 2008 AMENDMENT Pub. L. 110–458, title I, § 108(f)(2)(C), Dec. 23, 2008, 122 Stat. 5109, provided that: ‘‘The amendments made by this paragraph [amending this section] shall apply with respect to plan years beginning after December 31, 2009.’’ Amendment by sections 108(f)(1)–(2)(B), (j) and 109(b)(3) of Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of this title. Amendment by section 201(b) of Pub. L. 110–458 appli- cable to calendar years beginning after December 31, 2008, with provisions relating to pension plan or con- tract amendments, see section 201(c) of Pub. L. 110–458, set out as a note under section 401 of this title. EFFECTIVE DATE OF 2007 AMENDMENT Pub. L. 110–172, § 8(b), Dec. 29, 2007, 121 Stat. 2484, pro- vided that: ‘‘The amendments made by this section [amending this section and section 3121 of this title] shall take effect as if included in the provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 [Pub. L. 107–16] to which they relate.’’ EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–280, title VIII, § 822(b), Aug. 17, 2006, 120 Stat. 998, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to tax- able years beginning after December 31, 2006.’’ Pub. L. 109–280, title VIII, § 829(b), Aug. 17, 2006, 120 Stat. 1002, provided that: ‘‘The amendments made by this section [amending this section and sections 403 and 457 of this title] shall apply to distributions after De- cember 31, 2006.’’ Pub. L. 109–280, title VIII, § 845(c), Aug. 17, 2006, 120 Stat. 1015, provided that: ‘‘The amendments made by this section [amending this section and sections 403 and 457 of this title] shall apply to distributions in taxable years beginning after December 31, 2006.’’ EFFECTIVE DATE OF 2005 AMENDMENT Pub. L. 109–135, title IV, § 407(c), Dec. 21, 2005, 119 Stat. 2635, provided that: ‘‘The amendments made by this section [amending this section and section 415 of this title] shall take effect as if included in the provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 [Pub. L. 107–16] to which they relate.’’ EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–147 effective as if included in the provisions of the Economic Growth and Tax Re- lief Reconciliation Act of 2001, Pub. L. 107–16, to which such amendment relates, see section 411(x) of Pub. L. 107–147, set out as a note under section 25B of this title. EFFECTIVE DATE OF 2001 AMENDMENT Amendment by section 611(d)(1)–(3)(A) of Pub. L. 107–16 applicable to years beginning after Dec. 31, 2001, see section 611(i)(1) of Pub. L. 107–16, set out as a note under section 415 of this title. Pub. L. 107–16, title VI, § 617(f), June 7, 2001, 115 Stat. 106, provided that: ‘‘The amendments made by this sec- tion [enacting section 402A of this title and amending this section and sections 408A, 6047, and 6051 of this title] shall apply to taxable years beginning after De- cember 31, 2005.’’ Amendment by section 632(a)(3)(G) of Pub. L. 107–16 applicable to years beginning after Dec. 31, 2001, see section 632(a)(4) of Pub. L. 107–16, set out as a note under section 72 of this title. Pub. L. 107–16, title VI, § 636(b)(2), June 7, 2001, 115 Stat. 117, provided that: ‘‘The amendment made by this subsection [amending this section] shall apply to dis- tributions made after December 31, 2001.’’ Pub. L. 107–16, title VI, § 641(f), June 7, 2001, 115 Stat. 121, provided that: ‘‘(1) EFFECTIVE DATE.—The amendments made by this section [amending this section and sections 72, 219, 401, 403, 408, 415, 457, 3401, 3405, and 4973 of this title] shall apply to distributions after December 31, 2001. ‘‘(2) REASONABLE NOTICE.—No penalty shall be im- posed on a plan for the failure to provide the informa- tion required by the amendment made by subsection (c) Page 1256 TITLE 26—INTERNAL REVENUE CODE § 402 [amending this section] with respect to any distribu- tion made before the date that is 90 days after the date on which the Secretary of the Treasury issues a safe harbor rollover notice after the date of the enactment of this Act [June 7, 2001], if the administrator of such plan makes a reasonable attempt to comply with such requirement. ‘‘(3) SPECIAL RULE.—Notwithstanding any other provi- sion of law, subsections (h)(3) and (h)(5) of section 1122 of the Tax Reform Act of 1986 [Pub. L. 99–514, set out as a note below] shall not apply to any distribution from an eligible retirement plan (as defined in clause (iii) or (iv) of section 402(c)(8)(B) of the Internal Rev- enue Code of 1986) on behalf of an individual if there was a rollover to such plan on behalf of such individual which is permitted solely by reason of any amendment made by this section.’’ Amendment by section 643(a) of Pub. L. 107–16 appli- cable to distributions made after Dec. 31, 2001, see sec- tion 643(d) of Pub. L. 107–16, set out as a note under sec- tion 401 of this title. Pub. L. 107–16, title VI, § 644(c), June 7, 2001, 115 Stat. 123, provided that: ‘‘The amendments made by this sec- tion [amending this section and section 408 of this title] shall apply to distributions after December 31, 2001.’’ Amendment by section 657(b) of Pub. L. 107–16 appli- cable to distributions made after Mar. 28, 2005, see sec- tion 657(d) of Pub. L. 107–16, set out as a note under sec- tion 401 of this title. EFFECTIVE DATE OF 1998 AMENDMENT Pub. L. 105–206, title VI, § 6005(c)(2)(C), July 22, 1998, 112 Stat. 800, provided that: ‘‘The amendments made by this paragraph [amending this section and section 403 of this title] shall apply to distributions after Decem- ber 31, 1998.’’ EFFECTIVE DATE OF 1997 AMENDMENT Pub. L. 105–34, title XV, § 1501(c)(1), Aug. 5, 1997, 111 Stat. 1058, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply to years beginning after December 31, 1997.’’ EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–188, title I, § 1401(c), Aug. 20, 1996, 110 Stat. 1789, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [amending this section and sections 55, 62, 401, 406, 407, 691, 871, 877, and 4980A of this title] shall apply to taxable years beginning after December 31, 1999. ‘‘(2) RETENTION OF CERTAIN TRANSITION RULES.—The amendments made by this section shall not apply to any distribution for which the taxpayer is eligible to elect the benefits of section 1122(h)(3) or (5) of the Tax Reform Act of 1986 [Pub. L. 99–514, set out below]. Not- withstanding the preceding sentence, individuals who elect such benefits after December 31, 1999, shall not be eligible for 5-year averaging under section 402(d) of the Internal Revenue Code of 1986 (as in effect immediately before such amendments).’’ Amendment by section 1421(b)(3)(A), (9)(B) of Pub. L. 104–188 applicable to taxable years beginning after Dec. 31, 1996, see section 1421(e) of Pub. L. 104–188, set out as a note under section 72 of this title. Amendment by section 1450(a)(2) of Pub. L. 104–188 ap- plicable to taxable years beginning after Dec. 31, 1995, see section 1450(a)(3) of Pub. L. 104–188, set out in a Modifications of Subsection (b) of This Section note under section 403 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 applicable to years be- ginning after Dec. 31, 1994, and, to the extent of pro- viding for the rounding of indexed amounts, not appli- cable to any year to the extent the rounding would re- quire the indexed amount to be reduced below the amount in effect for years beginning in 1994, see section 732(e) of Pub. L. 103–465, set out as a note under section 401 of this title. EFFECTIVE DATE OF 1992 AMENDMENT Pub. L. 102–318, title V, § 521(e), July 3, 1992, 106 Stat. 313, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [amending this section and sections 55, 62, 72, 219, 401, 403, 406 to 408, 411, 414, 415, 457, 691, 871, 877, 1441, 3121, 3306, 3405, 4973, 4980A, and 7701 of this title] shall apply to distributions after December 31, 1992. ‘‘(2) SPECIAL RULE FOR PARTIAL DISTRIBUTIONS.—For purposes of section 402(a)(5)(D)(i)(II) of the Internal Revenue Code of 1986 (as in effect before the amend- ments made by this section), a distribution before Jan- uary 1, 1993, which is made before or at the same time as a series of periodic payments shall not be treated as one of such series if it is not substantially equal in amount to other payments in such series.’’ Amendment by section 522(c)(1) of Pub. L. 102–318 ap- plicable, except as otherwise provided, to distributions after Dec. 31, 1992, see section 522(d) of Pub. L. 102–318, set out as a note under section 401 of this title. EFFECTIVE DATE OF 1989 AMENDMENT Pub. L. 101–239, title VII, § 7811(i)(13), Dec. 19, 1989, 103 Stat. 2411, provided that the amendment made by that section is effective with respect to taxable years ending after Dec. 19, 1989 (or, at the election of the taxpayer, beginning after Dec. 31, 1986). Amendment by section 7811(g)(2) of Pub. L. 101–239 ef- fective, except as otherwise provided, as if included in the provision of the Technical and Miscellaneous Rev- enue Act of 1988, Pub. L. 100–647, to which such amend- ment relates, see section 7817 of Pub. L. 101–239, set out as a note under section 1 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by sections 1011(c)(1)–(6)(B), (11), (h)(4), 1011A(a)(1), (b)(4)(A)–(D), (5)–(8), (10), (c)(9), and 1018(t)(8)(A), (C), (u)(1), (6), (7) of Pub. L. 100–647 effec- tive, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under section 1 of this title. Pub. L. 100–647, title VI, § 6068(b), Nov. 10, 1988, 102 Stat. 3704, provided that: ‘‘The amendment made by this section [amending this section] shall apply to tax- able years ending after December 31, 1984.’’ EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 104(b)(5) of Pub. L. 99–514 ap- plicable to taxable years beginning after Dec. 31, 1986, see section 151(a) of Pub. L. 99–514, set out as a note under section 1 of this title. Pub. L. 99–514, title XI, § 1105(c), Oct. 22, 1986, 100 Stat. 2419, as amended by Pub. L. 100–647, title I, § 1011(c)(8), (9), Nov. 10, 1988, 102 Stat. 3458, provided that: ‘‘(1) IN GENERAL.—Except as provided in this sub- section, the amendment made by subsection (a) [amending this section] shall apply to taxable years be- ginning after December 31, 1986. ‘‘(2) DEFERRALS UNDER COLLECTIVE BARGAINING AGREE- MENTS.—In the case of a plan maintained pursuant to 1 or more collective bargaining agreements between em- ployee representatives and 1 or more employers ratified before March 1, 1986, the amendment made by sub- section (a) shall not apply to contributions made pursu- ant to such an agreement for taxable years beginning before the earlier of— ‘‘(A) the date on which such agreement terminates (determined without regard to any extension thereof after February 28, 1986), or ‘‘(B) January 1, 1989. Such contributions shall be taken into account for pur- poses of applying the amendment made by this section to other plans. ‘‘(3) DISTRIBUTIONS MADE BEFORE PLAN AMENDMENT.— ‘‘(A) IN GENERAL.—If a plan amendment is required to allow the plan to make any distribution described in section 402(g)(2)(A)(ii) of the Internal Revenue Page 1257 TITLE 26—INTERNAL REVENUE CODE § 402 Code of 1986, any such distribution which is made be- fore the close of the 1st plan year for which such amendment is required to be in effect under section 1140 [set out as a note under section 401 of this title] shall be treated as made in accordance with the pro- visions of such plan. ‘‘(B) DISTRIBUTIONS PURSUANT TO MODEL AMEND- MENT.— ‘‘(i) SECRETARY TO PRESCRIBE AMENDMENT.—The Secretary of the Treasury or his delegate shall pre- scribe an amendment which allows a plan to make any distribution described in section 402(g)(2)(A)(ii) of such Code. ‘‘(ii) ADOPTION BY PLAN.—If a plan adopts the amendment prescribed under clause (i) and makes a distribution in accordance with such amendment, such distribution shall be treated as made in ac- cordance with the provisions of the plan. ‘‘(4) SPECIAL RULE FOR TAXABLE YEARS OF PARTNER- SHIPS WHICH INCLUDE JANUARY 1, 1987.—In the case of the taxable year of any partnership which begins before January 1, 1987, and ends after January 1, 1987, elective deferrals (within the meaning of section 402(g)(3) of the Internal Revenue Code of 1986) made on behalf of a partner for such taxable year shall, for purposes of sec- tion 402(g)(3) of such Code, be treated as having been made ratably during such taxable year. ‘‘(5) CASH OR DEFERRED ARRANGEMENTS.—The amend- ments made by this section [amending this section and section 6051 of this title] shall not apply to employer contributions made during 1987 and attributable to services performed during 1986 under a qualified cash or deferred arrangement (as defined in section 401(k) of the Internal Revenue Code of 1986) if, under the terms of such arrangement as in effect on August 16, 1986— ‘‘(A) the employee makes an election with respect to such contribution before January 1, 1987, and ‘‘(B) the employer identifies the amount of such contribution before January 1, 1987. ‘‘(6) REPORTING REQUIREMENTS.—The amendments made by subsection (b) [amending section 6051 of this title] shall apply to calendar years beginning after De- cember 31, 1986.’’ Amendment by section 1106(c)(2) of Pub. L. 99–514 ap- plicable to years beginning after Dec. 31, 1986, see sec- tion 1106(i) of Pub. L. 99–514, set out as a note under section 415 of this title. Amendment by section 1108(b) of Pub. L. 99–514 appli- cable to years beginning after Dec. 31, 1986, see section 1108(h) of Pub. L. 99–514, set out as a note under section 219 of this title. Amendment by section 1112(c) of Pub. L. 99–514 appli- cable to plan years beginning after Dec. 31, 1988, with special rule regarding collective bargaining agreements ratified before Mar. 1, 1986, and with provision for waiv- er of excise tax on reversions, see section 1112(e) of Pub. L. 99–514, set out as a note under section 401 of this title. Amendment by section 1121(c)(1) of Pub. L. 99–514 ap- plicable to years beginning after Dec. 31, 1986, with spe- cial provisions for plans maintained pursuant to collec- tive bargaining agreements ratified before Mar. 1, 1986, and transition rules, see section 1121(d) of Pub. L. 99–514, set out as a note under section 401 of this title. Pub. L. 99–514, title XI, § 1122(h), Oct. 22, 1986, 100 Stat. 2470, as amended by Pub. L. 100–647, title I, § 1011A(b)(11)–(15), Nov. 10, 1988, 102 Stat. 3474, 3475, pro- vided that: ‘‘(1) IN GENERAL.—Except as otherwise provided in this subsection, the amendments made by this section [amending this section and sections 72, 403, and 408 of this title] shall apply to amounts distributed after De- cember 31, 1986, in taxable years ending after such date. ‘‘(2) SUBSECTION (c).— ‘‘(A) SUBSECTION (c)(1).—The amendment made by subsection (c)(1) [amending section 72 of this title] shall apply to individuals whose annuity starting date is after July 1, 1986. ‘‘(B) SUBSECTION (c)(2).—The amendment made by subsection (c)(2) [amending section 72 of this title] shall apply to individuals whose annuity starting date is after December 31, 1986, except that section 72(b)(3) of the Internal Revenue Code of 1986 (as added by such subsection) shall apply to individuals whose annuity starting date is after July 1, 1986. ‘‘(C) SPECIAL RULE FOR AMOUNTS NOT RECEIVED AS ANNUITIES.—In the case of any plan not described in section 72(e)(8)(D) of the Internal Revenue Code of 1986 (as added by subsection (c)(3)), the amendments made by subsection (c)(3) [amending section 72 of this title] shall apply to amounts received after July 1, 1986. ‘‘(3) SPECIAL RULE FOR INDIVIDUALS WHO ATTAINED AGE 50 BEFORE JANUARY 1, 1986.— ‘‘(A) IN GENERAL.—In the case of a lump sum dis- tribution to which this paragraph applies— ‘‘(i) the existing capital gains provisions shall continue to apply, and ‘‘(ii) the requirement of subparagraph (B) of sec- tion 402(e)(4) of the Internal Revenue Code of 1986 (as amended by subsection (a)) that the distribution be received after attaining age 591⁄2 shall not apply. ‘‘(B) COMPUTATION OF TAX.—If subparagraph (A) ap- plies to any lump sum distribution of any taxpayer for any taxable year, the tax imposed by section 1 of the Internal Revenue Code of 1986 on such taxpayer for such taxable year shall be equal to the sum of— ‘‘(i) the tax imposed by such section 1 on the tax- able income of the taxpayer (reduced by the portion of such lump sum distribution to which clause (ii) applies), plus ‘‘(ii) 20 percent of the portion of such lump sum distribution to which the existing capital gains pro- visions continue to apply by reason of this para- graph. ‘‘(C) LUMP SUM DISTRIBUTIONS TO WHICH PARAGRAPH APPLIES.—This paragraph shall apply to any lump sum distribution if— ‘‘(i) such lump sum distribution is received by an employee who has attained age 50 before January 1, 1986 or by an individual, estate, or trust with re- spect to such an employee, and ‘‘(ii) the taxpayer makes an election under this paragraph. Not more than 1 election may be made under this paragraph with respect to an employee. An election under this subparagraph shall be treated as an elec- tion under section 402(e)(4)(B) of such Code for pur- poses of such Code. ‘‘(4) 5-YEAR PHASE-OUT OF CAPITAL GAINS TREATMENT.— ‘‘(A) Notwithstanding the amendment made by sub- section (b) [amending this section and section 403 of this title], if the taxpayer elects the application of this paragraph with respect to any distribution after December 31, 1986, and before January 1, 1992, the phase-out percentage of the amount which would have been treated, without regard to this subpara- graph, as long-term capital gain under the existing capital gains provisions shall be treated as long-term capital gain. ‘‘(B) For purposes of this paragraph— ‘‘In the case of distributions during calendar year: The phase-out percentage is: 1987 .................................... 100 1988 .................................... 95 1989 .................................... 75 1990 .................................... 50 1991 .................................... 25. ‘‘(C) No more than 1 election may be made under this paragraph with respect to an employee. An elec- tion under this paragraph shall be treated as an elec- tion under section 402(e)(4)(B) of the Internal Revenue Code of 1986 for purposes of such Code. ‘‘(5) ELECTION OF 10-YEAR AVERAGING.—An employee who has attained age 50 before January 1, 1986, and elects the application of paragraph (3) or section 402(e)(1) of the Internal Revenue Code of 1986 (as amend- ed by this Act) may elect to have such section applied Page 1258 TITLE 26—INTERNAL REVENUE CODE § 402 by substituting ‘10 times’ for ‘5 times’ and ‘1⁄10’ for ‘1⁄5’ in subparagraph (B) thereof. For purposes of the pre- ceding sentence, section 402(e)(1) of such Code shall be applied by using the rate of tax in effect under section 1 of the Internal Revenue Code of 1954 for taxable years beginning during 1986 and by including in gross income the zero bracket amount in effect under section 63(d) of such Code for such years. This paragraph shall also apply to an individual, estate, or trust which receives a distribution with respect to an employee described in this paragraph. ‘‘(6) EXISTING CAPITAL GAIN PROVISIONS.—For purposes of paragraphs (3) and (4), the term ‘existing capital gains provisions’ means the provisions of paragraph (2) of section 402(a) of the Internal Revenue Code of 1954 (as in effect on the day before the date of the enact- ment of this Act [Oct. 22, 1986]) and paragraph (2) of section 403(a) of such Code (as so in effect). ‘‘(7) SUBSECTION (d).—The amendments made by sub- section (d) [amending section 403 of this title] shall apply to taxable years beginning after December 31, 1985. ‘‘(8) FROZEN DEPOSITS.—The amendments made by subsection (e)(2) [amending this section and section 408 of this title] shall apply to amounts transferred to an employee before, on, or after the date of the enactment of this Act [Oct. 22, 1986], except that in the case of an amount transferred on or before such date, the 60-day period referred to in section 402(a)(5)(C) of the Internal Revenue Code of 1986 shall not expire before the 60th day after the date of the enactment of this Act. ‘‘(9) SPECIAL RULE FOR STATE PLANS.—In the case of a plan maintained by a State which on May 5, 1986, per- mitted withdrawal by the employee of employee con- tributions (other than as an annuity), section 72(e) of the Internal Revenue Code of 1986 shall be applied— ‘‘(A) without regard to the phrase ‘before separa- tion from service’ in paragraph (8)(D), and ‘‘(B) by treating any amount received (other than as an annuity) before or with the 1st annuity pay- ment as having been received before the annuity starting date.’’ Amendment by section 1852(a)(5)(A), (b)(1)–(7), (c)(5) of Pub. L. 99–514 effective, except as otherwise provided, as if included in the provisions of the Tax Reform Act of 1984, Pub. L. 98–369, div. A, to which such amendment relates, see section 1881 of Pub. L. 99–514, set out as a note under section 48 of this title. Pub. L. 99–514, title XVIII, § 1854(f)(4)(C), Oct. 22, 1986, 100 Stat. 2882, as amended by Pub. L. 100–647, title I, § 1011(c)(6)(C), Nov. 10, 1988, 102 Stat. 3458, provided that: ‘‘The amendments made by paragraph (2) [amending this section] shall apply to any transaction occurring after December 31, 1984, except that in the case of any transaction occurring before the date of the enactment of this Act [Oct. 22, 1986], the period under which pro- ceeds are required to be invested under section 402(j) of the Internal Revenue Code of 1954 [now 1986] (as added by paragraph (2)) shall not end before the earlier of 1 year after the date of such transaction or 180 days after the date of the enactment of this Act.’’ Pub. L. 99–514, title XVIII, § 1875(c)(1)(B), Oct. 22, 1986, 100 Stat. 2894, provided that: ‘‘The amendments made by subparagraph (A) [amending this section] shall apply to distributions after the date of the enactment of this Act [Oct. 22, 1986]. Such amendments shall apply also to distributions after 1983 and on or before the date of the enactment of this Act to individuals who are not 5-percent owners (as defined in section 402(a)(5)(F)(ii) of the Internal Revenue Code of 1954 [now 1986] (as amend- ed by this paragraph)).’’ Amendment by section 1898(a)(2), (3), (c)(7)(A)(i), (e) of Pub. L. 99–514 effective as if included in the provision of the Retirement Equity Act of 1984, Pub. L. 98–397, to which such amendment relates, except as otherwise provided, see section 1898(j) of Pub. L. 99–514, set out as a note under section 401 of this title. Amendment by section 1898(c)(1)(A) of Pub. L. 99–514 applicable to payments made after Oct. 22, 1986, see sec- tion 1898(c)(1)(C) of Pub. L. 99–514, set out as a note under section 72 of this title. Amendment by Pub. L. 99–272 effective Jan. 1, 1986, with certain exceptions, see section 11019 of Pub. L. 99–272, set out as a note under section 1341 of Title 29, Labor. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 204 of Pub. L. 98–397 effective Jan. 1, 1985, and amendment by section 207 of Pub. L. 98–397 applicable to plan years beginning after Dec. 31, 1984, except as otherwise provided, see sections 302 and 303 of Pub. L. 98–397, set out as a note under section 1001 of Title 29, Labor. Amendment by section 491(d)(9)–(11) of Pub. L. 98–369 applicable to obligations issued after Dec. 31, 1983, see section 491(f)(1) of Pub. L. 98–369, set out as a note under section 62 of this title. Pub. L. 98–369, div. A, title IV, § 491(f)(2), July 18, 1984, 98 Stat. 853, provided that: ‘‘The amendment made by subsection (c) [amending this section and section 405 of this title] shall apply to redemptions after the date of the enactment of this Act [July 18, 1984] in taxable years ending after such date.’’ Pub. L. 98–369, div. A, title V, § 522(e), July 18, 1984, 98 Stat. 871, as amended by Pub. L. 99–514, title XVIII, § 1852(b)(9), Oct. 22, 1986, 100 Stat. 2867, provided that: ‘‘The amendments made by this section [amending this section and sections 403, 408, and 409 of this title] shall apply to distributions made after the date of the enact- ment of this Act [July 18, 1984], in taxable years ending after such date.’’ Pub. L. 98–369, div. A, title VII, § 713(c)(4), as added by Pub. L. 99–514, title XVIII, § 1875(c)(2), Oct. 22, 1986, 100 Stat. 2894, provided that: ‘‘The amendment made by paragraph (3) [amending this section] shall apply to distributions after July 18, 1984.’’ Amendment by section 1001(b)(3) of Pub. L. 98–369 ap- plicable to property acquired after June 22, 1984, and before Jan. 1, 1988, see section 1001(e) of Pub. L. 98–369, set out as a note under section 166 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 97–448 effective, except as oth- erwise provided, as if it had been included in the provi- sion of the Economic Recovery Tax Act of 1981, Pub. L. 97–34, to which such amendment relates, see section 109 of Pub. L. 97–448, set out as a note under section 1 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by section 311(b)(2), (3)(A), (c) of Pub. L. 97–34, applicable to taxable years beginning after Dec. 31, 1981, see section 311(i)(1) of Pub. L. 97–34, set out as a note under section 219 of this title. Pub. L. 97–34, title III, § 314(c)(2), Aug. 13, 1981, 95 Stat. 286, provided that: ‘‘The amendment made by para- graph (1) [amending this section] shall apply to taxable years beginning after December 31, 1981.’’ EFFECTIVE DATE OF 1980 AMENDMENTS Pub. L. 96–608, § 2(b), Dec. 28, 1980, 94 Stat. 3551, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘(1) IN GENERAL.—The amendment made by sub- section (a) [amending this section] shall apply to pay- ments made in taxable years beginning after December 31, 1978. ‘‘(2) TRANSITIONAL RULE.—In the case of any payment made before January 1, 1982, in a taxable year begin- ning after December 31, 1978, which is treated as a qualifying rollover distribution (as defined in section 402(a)(5)(D)(i) of the Internal Revenue Code of 1986 [for- merly I.R.C. 1954]) by reason of the amendment made by subsection (a), the applicable period specified in sec- tion 402(a)(5)(C) of such Code shall not expire before the close of December 31, 1981.’’ Amendment by Pub. L. 96–222 effective, except as oth- erwise provided, as if it had been included in the provi- sions of the Revenue Act of 1978, Pub. L. 95–600, to which such amendment relates, see section 201 of Pub. L. 96–222, set out as a note under section 32 of this title. Page 1259 TITLE 26—INTERNAL REVENUE CODE § 402 EFFECTIVE DATE OF 1978 AMENDMENT Amendment by section 101(d) of Pub. L. 95–600 effec- tive with respect to taxable years beginning after Dec. 31, 1978, see section 101(f)(1) of Pub. L. 95–600, set out as a note under section 1 of this title. Amendment by section 135(b) of Pub. L. 95–600 appli- cable to plan years beginning after December 31, 1979, see section 135(c)(1) of Pub. L. 95–600, set out as a note under section 401 of this title. Pub. L. 95–600, title I, § 157(f)(2), Nov. 6, 1978, 92 Stat. 2807, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to qualifying rollover distributions (as defined in section 402(a)(5)(D)(i) of the Internal Revenue Code of 1986 [for- merly I.R.C. 1954]) completed after December 31, 1978, in taxable years ending after such date.’’ Pub. L. 95–600, title I, § 157(g)(4), Nov. 6, 1978, 92 Stat. 2808, provided that: ‘‘The amendments made by this subsection [amending this section and sections 403 and 408 of this title] shall apply to lump-sum distributions completed after December 31, 1978, in taxable years ending after such date.’’ Pub. L. 95–600, title I, § 157(h)(3)(A), Nov. 6, 1978, 92 Stat. 2808, as amended by Pub. L. 96–222, title I, § 101(a)(14)(A), Apr. 1, 1980, 94 Stat. 204, provided that: ‘‘The amendments made by this subsection [amending this section and section 408 of this title] shall apply to payments made in taxable years beginning after De- cember 31, 1977.’’ EFFECTIVE DATE OF 1978 AMENDMENT; CERTAIN ROLLOVERS VALIDATED Pub. L. 95–458, § 4(d), Oct. 14, 1978, 92 Stat. 1260, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘(1) IN GENERAL.—The amendments made by sub- sections (a), (b), and (c) [amending this section and sec- tion 403 of this title] shall apply with respect to taxable years beginning after December 31, 1974. ‘‘(2) VALIDATION OF CERTAIN ATTEMPTED ROLLOVERS.— If the taxpayer— ‘‘(A) attempted to comply with the requirements of section 402(a)(5) or 403(a)(4) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] for a taxable year beginning before the date of the enactment of this Act, [Oct. 14, 1978], and ‘‘(B) failed to meet the requirements of such section that all property received in the distribution be transferred, such section (as amended by this section) shall be ap- plied by treating any transfer of property made on or before December 31, 1978, as if it were made on or before the 60th day after the day on which the taxpayer re- ceived such property. For purposes of the preceding sentence, a transfer of money shall be treated as a transfer of property received in a distribution to the extent that the amount of the money transferred does not exceed the highest fair market value of the prop- erty distributed during the 60-day period beginning on the date on which the taxpayer received such prop- erty.’’ EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–30 applicable to taxable years beginning after Dec. 31, 1976, see section 106(a) of Pub. L. 95–30, set out as a note under section 1 of this title. EFFECTIVE DATE OF 1976 AMENDMENT Pub. L. 94–455, title XIV, § 1402(b)(1), Oct. 4, 1976, 90 Stat. 1731, provided that the amendment made by that section is effective with respect to taxable years begin- ning in 1977. Pub. L. 94–455, title XIV, § 1402(b)(2), Oct. 4, 1976, 90 Stat. 1732, provided that the amendment made by that section is effective with respect to taxable years begin- ning after Dec. 31, 1977. Pub. L. 94–455, title XV, § 1512(b), Oct. 4, 1976, 90 Stat. 1742, provided that: ‘‘The amendment made by this sec- tion [amending this section] shall apply to distribu- tions and payments made after December 31, 1975, in taxable years beginning after such date.’’ Pub. L. 94–455, title XIX, § 1901(a)(57)(C)(ii), Oct. 4, 1976, 90 Stat. 1774, provided that: ‘‘The amendment made by clause (i) [amending this section] shall apply with respect to distributions or payments made after December 31, 1973, in taxable years beginning after such date.’’ Amendment by Pub. L. 94–267 applicable with respect to payments made to an employee on or after July 4, 1974, see section 1(e) of Pub. L. 94–267, set out as a note under section 401 of this title. EFFECTIVE DATE OF 1974 AMENDMENT Pub. L. 93–406, title II, § 2002(i)(3), Sept. 2, 1974, 88 Stat. 971, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘The amendments made by subsection (g)(5) and (6) [amending this section and section 403 of this title] shall apply on and after the date of enactment of this Act [Sept. 2, 1974] with re- spect to contributions to an employees’ trust described in section 401(a) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] which is exempt from tax under section 501(a) of such Code or an annuity plan described in section 403(a) of such Code.’’ Pub. L. 93–406, title II, § 2005(d), Sept. 2, 1974, 88 Stat. 992, provided that: ‘‘The amendments made by this sec- tion [amending this section and sections 46, 50A, 56, 62, 72, 101, 122, 403, 405, 406, 407, 871, 877, 901, 1304, and 1348 of this title] shall apply only with respect to distribu- tions or payments made after December 31, 1973, in tax- able years beginning after such date.’’ EFFECTIVE DATE OF 1969 AMENDMENT Amendment by section 321(b)(1) of Pub. L. 91–172 ap- plicable with respect to contributions made and pre- miums paid after Aug. 1, 1969, see section 321(d) of Pub. L. 91–172, set out as an Effective Date note under sec- tion 83 of this title. Pub. L. 91–172, title V, § 515(d), Dec. 30, 1969, 83 Stat. 646, provided that: ‘‘The amendments made by this sec- tion [amending this section and sections 72, 403, 405, 406, 407 and 1304 of this title] shall apply to taxable years ending after December 31, 1969.’’ EFFECTIVE DATE OF 1964 AMENDMENT Amendment by section 221(c)(1) of Pub. L. 88–272 ap- plicable to taxable years ending after Dec. 31, 1963, see section 221(e) of Pub. L. 88–272, set out as a note under section 421 of this title. Amendment by section 232(e)(1)–(3) of Pub. L. 88–272 applicable to taxable years beginning after Dec. 31, 1963, see section 232(g) of Pub. L. 88–272, set out as a note under section 5 of this title. EFFECTIVE DATE OF 1962 AMENDMENT Amendment by Pub. L. 87–792 applicable to taxable years beginning after Dec. 31, 1962, see section 8 of Pub. L. 87–792, set out as a note under section 22 of this title. EFFECTIVE DATE OF 1960 AMENDMENT Pub. L. 86–437, § 3, Apr. 22, 1960, 74 Stat. 79, provided that: ‘‘The amendments made by this Act [amending this section and section 871 of this title] shall apply only with respect to taxable years beginning after De- cember 31, 1959.’’ REGULATIONS Secretary of the Treasury or his delegate to issue be- fore Feb. 1, 1988, final regulations to carry out amend- ments made by section 1112 of Pub. L. 99–514, see sec- tion 1141 of Pub. L. 99–514, set out as a note under sec- tion 401 of this title. SAVINGS PROVISION For provisions that nothing in amendment by Pub. L. 101–508 be construed to affect treatment of certain Page 1260 TITLE 26—INTERNAL REVENUE CODE § 402 transactions occurring, property acquired, or items of income, loss, deduction, or credit taken into account prior to Nov. 5, 1990, for purposes of determining liabil- ity for tax for periods ending after Nov. 5, 1990, see sec- tion 11821(b) of Pub. L. 101–508, set out as a note under section 45K of this title. CERTAIN ACTIONS BEFORE DATE OF ENACTMENT OF PUB. L. 117–328 Pub. L. 117–328, div. T, title III, § 301(d), Dec. 29, 2022, 136 Stat. 5338, provided that: ‘‘Plans, fiduciaries, em- ployers, and plan sponsors are entitled to rely on— ‘‘(1) a reasonable good faith interpretation of then existing administrative guidance for inadvertent ben- efit overpayment recoupments and recoveries that commenced before the date of enactment of this Act [Dec. 29, 2022], and ‘‘(2) determinations made before the date of enact- ment of this Act by the responsible plan fiduciary, in the exercise of its fiduciary discretion, not to seek recoupment or recovery of all or part of an inad- vertent benefit overpayment. In the case of a benefit overpayment that occurred prior to the date of enactment of this Act, any install- ment payments by the participant or beneficiary to the plan or any reduction in periodic benefit payments to the participant or beneficiary, which were made in recoupment of such overpayment and which com- menced prior to such date, may continue after such date. Nothing in this subsection shall relieve a fidu- ciary from responsibility for an overpayment that re- sulted from a breach of its fiduciary duties.’’ CLARIFICATION OF DISQUALIFICATION RULES RELATING TO ACCEPTANCE OF ROLLOVER CONTRIBUTIONS Pub. L. 105–34, title XV, § 1509, Aug. 5, 1997, 111 Stat. 1068, provided that: ‘‘The Secretary of the Treasury or his delegate shall clarify that, under the Internal Rev- enue Service regulations protecting pension plans from disqualification by reason of the receipt of invalid roll- over contributions under section 402(c) of the Internal Revenue Code of 1986, in order for the administrator of the plan receiving any such contribution to reasonably conclude that the contribution is a valid rollover con- tribution it is not necessary for the distributing plan to have a determination letter with respect to its status as a qualified plan under section 401 of such Code.’’ MODEL EXPLANATION Pub. L. 102–318, title V, § 521(d), July 3, 1992, 106 Stat. 313, provided that: ‘‘The Secretary of the Treasury or his delegate shall develop a model explanation which a plan administrator may provide to a recipient in order to meet the requirements of section 402(f) of the Inter- nal Revenue Code of 1986.’’ INCORPORATION BY REFERENCE OF SUBSECTION (g) LIMITATIONS Pub. L. 100–647, title I, § 1011(c)(10), Nov. 10, 1988, 102 Stat. 3459, provided that: ‘‘Notwithstanding any other provision of law, a plan may incorporate by reference the dollar limitations under section 402(g) of the Inter- nal Revenue Code of 1986.’’ APPLICABILITY OF SUBSECTION (a)(5)(F)(ii) Pub. L. 100–647, title I, § 1011A(a)(5), Nov. 10, 1988, 102 Stat. 3472, provided that: ‘‘Section 402(a)(5)(F)(ii) of the Internal Revenue Code of 1954 shall not apply to dis- tributions after October 22, 1986, and before the 1st tax- able year beginning after 1986 which are attributable to benefits which accrued before January 1, 1985.’’ APPLICABILITY OF SUBSECTION (a)(5)(D)(i)(II) Pub. L. 100–647, title I, § 1011A(b)(4)(E), Nov. 10, 1988, 102 Stat. 3473, provided that: ‘‘Section 402(a)(5)(D)(i)(II) of the 1986 Code (as in effect after the amendment made by subparagraph (A)) shall not apply to distributions after December 31, 1986, and before March 31, 1988.’’ ELECTION TO TREAT CERTAIN LUMP SUM DISTRIBU- TIONS RECEIVED DURING 1987 AS RECEIVED DURING 1986 Pub. L. 99–514, title XI, § 1124, Oct. 22, 1986, 100 Stat. 2475, as amended by Pub. L. 100–647, title I, § 1011A(d), Nov. 10, 1988, 102 Stat. 3476, provided that: ‘‘(a) IN GENERAL.—If an employee dies, separates from service, or becomes disabled before 1987 and an indi- vidual, trust, or estate receives a lump-sum distribu- tion with respect to such employee after December 31, 1986, and before March 16, 1987, on account of such death, separation from service, or disability, then, for purposes of the Internal Revenue Code of 1986, such in- dividual, estate, or trust may treat such distribution as if it were received in 1986. ‘‘(b) SPECIAL RULE FOR TERMINATED PLAN.—In the case of an individual, estate, or trust who receives with respect to an employee a distribution from a termi- nated plan which was maintained by a corporation or- ganized under the laws of the State of Nevada, the prin- cipal place of business of which is Denver, Colorado, and which filed for relief from creditors under the United States Bankruptcy Code on August 28, 1986, the individual, estate, or trust may treat a lump sum dis- tribution received from such plan before June 30, 1987, as if it were received in 1986. ‘‘(c) LUMP SUM DISTRIBUTION.—For purposes of this section, the term ‘lump sum distribution’ has the meaning given such term by section 402(e)(4)(A) of the Internal Revenue Code of 1986, without regard to sub- paragraph (B) or (H) of section 402(e)(4) of such Code.’’ PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1998 For provisions directing that if any amendments made by subtitle D [§§ 1401–1465] of title I of Pub. L. 104–188 require an amendment to any plan or annuity contract, such amendment shall not be required to be made before the first day of the first plan year begin- ning on or after Jan. 1, 1998, see section 1465 of Pub. L. 104–188, set out as a note under section 401 of this title. PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1994 For provisions directing that if any amendments made by subtitle B [§§ 521–523] of title V of Pub. L. 102–318 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1994, see section 523 of Pub. L. 102–318, set out as a note under section 401 of this title. PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989 For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title. TREATMENT OF CERTAIN DISTRIBUTIONS FROM QUALIFIED TERMINATED PLAN Pub. L. 98–369, div. A, title V, § 551, July 18, 1984, 98 Stat. 896, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘(a) IN GENERAL.—For purposes of the Internal Rev- enue Code [of] 1986 [formerly I.R.C. 1954], if— ‘‘(1) a distribution was made from a qualified termi- nated plan to an employee on December 16, 1976, and on January 6, 1977, such employee transferred all of the property received in such distribution to an indi- vidual retirement account (within the meaning of section 408(a) of such Code) established for the benefit of such employee, and Page 1261 TITLE 26—INTERNAL REVENUE CODE § 402 ‘‘(2) the remaining balance to the credit of such em- ployee in such qualified terminated plan was distrib- uted to such employee on January 21, 1977, and all the property received by such employee in such distribu- tion was transferred by such employee to such indi- vidual retirement account on January 21, 1977, then such distributions shall be treated as qualifying rollover distributions (within the meaning of section 402(a)(5) of such Code) and shall not be includible in the gross income of such employee for the taxable year in which paid. ‘‘(b) QUALIFIED TERMINATED PLAN.—For purposes of this section, the term ‘qualified terminated plan’ means a pension plan— ‘‘(1) with respect to which a notice of sufficiency was issued by the Pension Benefit Guaranty Corpora- tion on December 2, 1976, and ‘‘(2) which was terminated by corporate action on February 20, 1976. ‘‘(c) REFUND OR CREDIT OF OVERPAYMENT BARRED BY STATUTE OF LIMITATIONS.—Notwithstanding section 6511(a) of the Internal Revenue Code of 1986 or any other period of limitation or lapse of time, a claim for credit or refund of overpayment of the tax imposed by such Code which arises by reason of this section may be filed by any person at any time within the 1-year pe- riod beginning on the date of enactment of this Act [July 18, 1984]. Sections 6511(b) and 6514 of such Code shall not apply to any claim for credit or refund filed under this subsection within such 1-year period.’’ TRANSITIONAL RULE IN CASE OF ROLLOVER CONTRIBUTIONS TO EMPLOYEE TRUSTS OR ANNUITIES Pub. L. 95–600, title I, § 157(h)(3)(B), Nov. 6, 1978, 92 Stat. 2808, as amended by Pub. L. 96–222, title I, § 101(a)(14)(A), (D), Apr. 1, 1980, 94 Stat. 204, 205; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘In the case of any payment made during 1978 which is de- scribed in section 402(a)(5)(A) or 403(a)(4)(A) of the In- ternal Revenue Code of 1986 [formerly I.R.C. 1954] by reason of the amendments made by this subsection [amending sections 402 and 408 of this title], the appli- cable period specified in section 402(a)(5)(C) of such Code (or in the case of an individual retirement annu- ity, such section as made applicable by section 403(a)(4)(B) of such code) shall not expire before the close of December 31, 1980.’’ TRANSITIONAL RULES RELATING TO PERIOD FOR ROLLOVER CONTRIBUTION Pub. L. 94–267, § 1(d), Apr. 15, 1976, 90 Stat. 367, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘(1) IN GENERAL.— ‘‘(A) PERIOD FOR ROLLOVER CONTRIBUTION.—In the case of a payment described in section 402(a)(5)(A) (other than a payment described in section 402(a)(5)(A) as in effect on the day before the date of the enactment of this Act) [Apr. 15, 1976] or sec- tion 403(a)(4)(A) (other than a payment described in section 403(a)(4)(A) as in effect on the day before the date of the enactment of this Act [Apr. 15, 1976] of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] (relating to distributions of the balance to the credit of the employee) which is contributed by an employee after the date of the enactment of this Act [Apr. 15, 1976] to a trust, plan, account, an- nuity, or bond described in section 402(a)(5)(B) or 403(a)(4)(B) of such Code, the applicable period spec- ified in section 402(a)(5)(B) or 403(a)(4)(B) of such Code (relating to rollover distributions to another plan or retirement account) shall not expire before December 31, 1976. ‘‘(B) TIME OF CONTRIBUTION.— (i) GENERAL RULE.—If the initial portion of a payment the applicable period for which is deter- mined under subparagraph (A) is contributed be- fore December 31, 1976, by an individual to a trust, plan, account, annuity, or bond described in sub- paragraph (A) and the remaining portion of such payment is contributed by such individual to such a trust, plan, account, annuity, or bond not later than 30 days after the date a credit or refund is allowed by the Secretary of the Treasury or his delegate under section 6402 of the Internal Rev- enue Code of 1986 with respect to the contribu- tion, then, for purposes of subparagraph (A) and sections 402(a)(5) and 403(a)(4) of such Code, at the election of the individual (made in accordance with regulations prescribed by the Secretary or his delegate), such remaining portion shall be considered to have been contributed on the date the initial portion of the payment was contrib- uted. For purposes of this subparagraph, the ini- tial portion of a payment is the amount by which such payment exceeds the amount of the tax im- posed on such payment by chapter 1 of such Code (determined without regard to this subpara- graph). [chapter 1 of this title] ‘‘(ii) REGULATIONS.—For purposes of this sub- paragraph, the tax imposed on a payment by chapter 1 of the Internal Revenue Code of 1986, and the date a credit or refund is allowed by the Secretary of the Treasury or his delegate under section 6402 with respect to a contribution, shall be determined under regulations prescribed by the Secretary of the Treasury or his delegate. ‘‘(C) PERIOD OF LIMITATIONS.—If an individual has made the election provided by subparagraph (B), then— ‘‘(i) the period provided by the Internal Revenue Code of 1986 for the assessment of any deficiency for the taxable year in which the payment de- scribed in subparagraph (A) was made and each subsequent taxable year for which tax is deter- mined by reference to the treatment of such pay- ment under such Code or the status under such Code of any trust, plan, account, annuity, or bond described in subparagraph (A) shall, to the extent attributable to such treatment, not expire before the expiration of 3 years from the date the Sec- retary of the Treasury or his delegate is notified by the individual (in such manner as the Sec- retary of the Treasury or his delegate may pre- scribe) that such individual has made (or failed to make) the contribution of the remaining portion of the payment within the period specified in sub- paragraph (B)(i), and ‘‘(ii) such deficiency may be assessed before the expiration of such 3-year period notwithstanding the provisions of section 6212(c) of such Code or the provisions of any other law or rule of law which would otherwise prevent such assessment. ‘‘(2) ROLLOVER CONTRIBUTION FOR CERTAIN PROPERTY SOLD.—Sections 402(a)(5)(C) and 403(a)(4)(C) of the In- ternal Revenue Code of 1986 (relating to the require- ment that rollover amount must consist of property received in a distribution) shall not apply with re- spect to that portion of the property received in a payment described in section 402(a)(5)(A) (other than a payment described in section 402(a)(5)(A) as in ef- fect on the day before the date of the enactment of this Act [Apr. 15, 1976] or 403(a)(4)(A) (other than a payment described in section 403(a)(4)(A) as in effect on the day before the date of the enactment of this Act) [Apr. 15, 1976] of such Code which is sold or ex- changed by the employee on or before the date of the enactment of this Act, [Apr. 15, 1976], if the employee transfers an amount of cash equal to the proceeds re- ceived from the sale or exchange of such property in excess of the amount considered contributed by the employee (within the meaning of section 402(a)(4)(D)(i) of such Code). ‘‘(3) NONRECOGNITION OF GAIN OR LOSS.—For pur- poses of the Internal Revenue Code of 1986 [this title] no gain or loss shall be recognized with respect to the sale or exchange of property described in paragraph (2) if the proceeds of such sale or exchange are trans- ferred by an employee in accordance with this sub- Page 1262 TITLE 26—INTERNAL REVENUE CODE § 402A section and the applicable provisions of section 402(a)(5) or 403(a)(4) of such Code.’’ § 402A. Optional treatment of elective deferrals as Roth contributions (a) General rule If an applicable retirement plan includes a qualified Roth contribution program— (1) any designated Roth contribution made by an employee pursuant to the program shall be treated as an elective deferral for purposes of this chapter, except that such contribution shall not be excludable from gross income, (2) any designated Roth contribution which pursuant to the program is made by the em- ployer on the employee’s behalf on account of the employee’s contribution, elective deferral, or (subject to the requirements of section 401(m)(13)) qualified student loan payment shall be treated as a matching contribution for purposes of this chapter, except that such contribution shall not be excludable from gross income, (3) any designated Roth contribution which pursuant to the program is made by the em- ployer on the employee’s behalf and which is a nonelective contribution shall be nonforfeit- able and shall not be excludable from gross in- come, and (4) such plan (and any arrangement which is part of such plan) shall not be treated as fail- ing to meet any requirement of this chapter solely by reason of including such program. (b) Qualified Roth contribution program For purposes of this section— (1) In general The term ‘‘qualified Roth contribution pro- gram’’ means a program under which an em- ployee may elect to make, or to have made on the employee’s behalf, designated Roth con- tributions in lieu of all or a portion of elective deferrals the employee is otherwise eligible to make, or of matching contributions or non- elective contributions which may otherwise be made on the employee’s behalf, under the ap- plicable retirement plan. (2) Separate accounting required A program shall not be treated as a qualified Roth contribution program unless the applica- ble retirement plan— (A) establishes separate accounts (‘‘des- ignated Roth accounts’’) for the designated Roth contributions of each employee and any earnings properly allocable to the con- tributions, and (B) maintains separate recordkeeping with respect to each account. (c) Definitions and rules relating to designated Roth contributions For purposes of this section— (1) Designated Roth contribution The term ‘‘designated Roth contribution’’ means any elective deferral, matching con- tribution, or nonelective contribution which— (A) is excludable from gross income of an employee without regard to this section, and (B) the employee designates (at such time and in such manner as the Secretary may prescribe) as not being so excludable. (2) Designation limits The amount of elective deferrals which an employee may designate under paragraph (1) shall not exceed the excess (if any) of— (A) the maximum amount of elective de- ferrals excludable from gross income of the employee for the taxable year (without re- gard to this section), over (B) the aggregate amount of elective defer- rals of the employee for the taxable year which the employee does not designate under paragraph (1). (3) Rollover contributions (A) In general A rollover contribution of any payment or distribution from a designated Roth account which is otherwise allowable under this chapter may be made only if the contribu- tion is to— (i) another designated Roth account of the individual from whose account the payment or distribution was made, or (ii) a Roth IRA of such individual. (B) Coordination with limit Any rollover contribution to a designated Roth account under subparagraph (A) shall not be taken into account for purposes of paragraph (1). (4) Taxable rollovers to designated Roth ac- counts (A) In general Notwithstanding sections 402(c), 403(b)(8), and 457(e)(16), in the case of any distribution to which this paragraph applies— (i) there shall be included in gross in- come any amount which would be includ- ible were it not part of a qualified rollover contribution, (ii) section 72(t) shall not apply, and (iii) unless the taxpayer elects not to have this clause apply, any amount re- quired to be included in gross income for any taxable year beginning in 2010 by rea- son of this paragraph shall be so included ratably over the 2-taxable-year period be- ginning with the first taxable year begin- ning in 2011. Any election under clause (iii) for any dis- tributions during a taxable year may not be changed after the due date for such taxable year. (B) Distributions to which paragraph applies In the case of an applicable retirement plan which includes a qualified Roth con- tribution program, this paragraph shall apply to a distribution from such plan other than from a designated Roth account which is contributed in a qualified rollover con- tribution (within the meaning of section 408A(e)) to the designated Roth account maintained under such plan for the benefit of the individual to whom the distribution is made. (C) Coordination with limit Any distribution to which this paragraph applies shall not be taken into account for purposes of paragraph (1).