Internal Revenue Code · 26 U.S.C.
§ 402A. Optional treatment of elective deferrals as Roth contributions
Official text, no changes From the Office of the Law Revision Counsel, release point 119-121 (current through Public Law 119-121 (October 9, 2026)). Compare it with the official text at uscode.house.gov (external site).
Cite as 26 U.S.C. § 402A
At a glance
Read from the text, the source credit and the official notes. Not part of the law.
- Status
- In force
- Added
- June 7, 2001 by Pub. L. 107–16
- Last amended
- December 29, 2022 by Pub. L. 117–328
- Amendments
- 4 dated changes in the source credit
- Length
- 6 subsections · 3,579 words · about 16 min to read
- Defines
- 8 terms
- Cross-references
- cites 11; cited by 10 Code sections and 10 other regulations
- Regulations
- 2 issued under this section
The term “qualified Roth contribution program” means a program under which an employee may elect to make, or to have made on the employee’s behalf, designated Roth contributions in lieu of all or a portion of elective deferrals the employee is otherwise eligible to make, or of matching contributions or nonelective contributions which may otherwise be made on the employee’s behalf, under the applicable retirement plan.
Any rollover contribution to a designated Roth account under subparagraph (A) shall not be taken into account for purposes of paragraph (1).
In the case of an applicable retirement plan which includes a qualified Roth contribution 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 contribution (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.
Any distribution to which this paragraph applies shall not be taken into account for purposes of paragraph (1).
The rules of subparagraphs (D), (E), and (F) of section 408A(d)(3) (as in effect for taxable years beginning after 2009) shall apply for purposes of this paragraph.
Any qualified distribution from a designated Roth account shall not be includible in gross income.
The term “qualified distribution” has the meaning given such term by section 408A(d)(2)(A) (without regard to clause (iv) thereof).
The term “qualified distribution” shall not include any distribution of any excess deferral under section 402(g)(2) or any excess contribution under section 401(k)(8), and any income on the excess deferral or contribution.
Section 72 shall be applied separately with respect to distributions and payments from a designated Roth account and other distributions and payments from the plan.
Notwithstanding subparagraph (A)(ii), an individual on whose behalf a pension-linked emergency savings account is established who thereafter becomes a highly compensated employee (as so defined) may not make further contributions to such account, but retains the right to withdraw any account balance of such account in accordance with paragraphs (7) and (8).
The required notices under subparagraph (A) may be included with any other notice under the Employee Retirement Income Security Act of 1974, including under section 404(c)(5)(B) or 514(e)(3) of such Act, or under section 401(k)(13)(E) or 414(w)(4), if such other notice is provided to the participant at the time required for such notice.
If an employer makes any matching contributions to a defined contribution plan of which a pension-linked emergency savings account is part, subject to the limitations of paragraph (3), the employer shall make matching contributions on behalf of an eligible participant on account of the participant’s contributions to the pension-linked emergency savings account at the same rate as any other matching contribution on account of an elective contribution by such participant. The matching contributions shall be made to the participant’s account under the defined contribution plan which is not the pension-linked emergency savings account. Such matching contributions on account of contributions to the pension-linked emergency savings account shall not exceed the maximum account balance under paragraph (3)(A) for such plan year.
For purposes of any applicable limitation on matching contributions, any matching contributions made under the plan shall be treated first as attributable to the elective deferrals of the participant other than contributions to a pension-linked emergency savings account.
For purposes of subparagraph (A), the term “matching contribution” has the meaning given such term in section 401(m)(4).
A pension-linked emergency savings account shall allow for withdrawal by the participant on whose behalf the account is established of the account balance, in whole or in part at the discretion of the participant, at least once per calendar month and for distribution of such withdrawal to the participant as soon as practicable after the date on which the participant elects to make such withdrawal.
No amounts shall be transferred by the participant from another account of the participant under any plan of the employer into the pension-linked emergency savings account of the participant.
Subparagraph (F) of section 408A(d)(3) shall not apply (including by reason of subsection (c)(4)(D) of this section) to any rollover contribution of amounts in a pension-linked emergency savings account under subparagraph (A).
If any excess deferrals are distributed under section 402(g)(2)(A) to a participant, such amounts shall be distributed first from any pension-linked emergency savings account of the participant to the extent contributions were made to such account for the taxable year.
Except as provided in subparagraph (B), a distribution from a pension-linked emergency savings account shall not be treated as an eligible rollover distribution for purposes of sections 401(a)(31), 402(f), and 3405.
In the case of termination of employment of the participant, or termination by the plan sponsor of the pension-linked emergency savings account, except for purposes of 401(a)(31)(B), a distribution from a pension-linked emergency savings account which is contributed as provided in paragraph (8)(A)(i) shall be treated as an eligible rollover distribution.
Notwithstanding section 411(d)(6), a plan which includes a pension-linked emergency savings account may cease to offer such accounts at any time.
(Added Pub. L. 107–16, title VI, § 617(a), June 7, 2001, 115 Stat. 103; amended Pub. L. 111–240, title II, §§ 2111(a), (b), 2112(a), Sept. 27, 2010, 124 Stat. 2565, 2566; Pub. L. 112–240, title IX, § 902(a), Jan. 2, 2013, 126 Stat. 2371; Pub. L. 113–295, div. A, title II, § 220(k), Dec. 19, 2014, 128 Stat. 4036; Pub. L. 117–328, div. T, title I, § 127(e)(1), title III, § 325(a), title VI, § 604(a)–(d), Dec. 29, 2022, 136 Stat. 5324, 5359, 5392.)
Terms defined here
Where the text says “the term … means”. Select a term to jump to its definition.
- applicable retirement plan § 402A(f)(1)
- designated Roth contribution § 402A(c)(1)
- elective deferral § 402A(f)(2)
- matching contribution § 402A(e)(6)(C)
- matching contribution § 402A(f)(3)
- qualified distribution § 402A(d)(2)(A)
- qualified distribution § 402A(d)(2)(C)
- qualified Roth contribution program § 402A(b)(1)
Regulations under this section
Treasury regulations (26 CFR) issued under § 402A
Cross-references
Computed from the citations in the text of Title 26 and 26 CFR.
This section cites 11 other sections
- § 401(m)(13) Qualified pension, profit-sharing, and stock bonus plans
- § 402(c) Taxability of beneficiary of employees’ trust
- § 403(b)(8) Taxation of employee annuities
- § 457(e)(16) Deferred compensation plans of State and local governments and tax-exempt organizations
- § 72(t) Annuities; certain proceeds of endowment and life insurance contracts
- § 408A(e) Roth IRAs
- § 414(q) Definitions and special rules
- § 415(d) Limitations on benefits and contribution under qualified plans
- § 3405 Special rules for pensions, annuities, and certain other deferred income
- § 411(d)(6) Minimum vesting standards
- § 501(a) Exemption from tax on corporations, certain trusts, etc.
Cited by 10 Code sections
- § 72(d)(3) Annuities; certain proceeds of endowment and life insurance contracts
- § 402(c)(8)(B)(vi) Taxability of beneficiary of employees’ trust
- § 408A(d)(3)(B) Roth IRAs
- § 414(v)(7)(A) Definitions and special rules
- § 3121(v)(1)(A) Definitions
- § 4960(c)(3)(A) Tax on excess tax-exempt organization executive compensation
- § 6047(f) Information relating to certain trusts and annuity plans
- § 6051(a)(8) Receipts for employees
- § 6343(f)(3)(B) Authority to release levy and return property
- § 6433(e)(2)(A)(i)(II) Saver’s Match
Cited in 10 regulations not issued under it
- § 1.199A-2 Determination of W-2 wages and unadjusted basis immediately after acquisition of qualified property.
- § 1.199A-11 Wage limitation for the section 199A(g) deduction.
- § 1.401(a)(9)-3 Death before required beginning date.
- § 1.401(a)(9)-5 Required minimum distributions from defined contribution plans.
- § 1.401(k)-1 Certain cash or deferred arrangements.
- § 1.402(c)-2 Eligible rollover distributions.
- § 1.402(g)-1 Limitation on exclusion for elective deferrals.
- § 1.403(b)-4 Contribution limitations.
- § 1.414(v)-2 Catch-up contributions required to be designated Roth contributions under section 414(v)(7).
- § 53.4960-2 Determination of remuneration paid for a taxable year.
Amendment history
From the source credit and the official notes, newest first.
- Amended by Pub. L. 117–328Parts changed in 2022: (a) (b)(1) (c)(1) (d)(5) (e) (f) (f)(3)
- Amended by Pub. L. 113–295Parts changed in 2014: (c)(4)(E)(iii)
- Amended by Pub. L. 112–240Parts changed in 2013: (c)(4)(E)
- Amended by Pub. L. 111–240Parts changed in 2010: (c)(4) (e)(1)(C) (e)(2)
- Added by Pub. L. 107–16
Where it sits in the Code
- Subtitle A Income Taxes
- Chapter 1 NORMAL TAXES AND SURTAXES
- Subchapter D Deferred Compensation, Etc.
- Part I PENSION, PROFIT-SHARING, STOCK BONUS PLANS, ETC.
- Subpart A General Rule
Nearby sections
- § 401 Qualified pension, profit-sharing, and stock bonus plans
- § 402 Taxability of beneficiary of employees’ trust
- § 402A Optional treatment of elective deferrals as Roth contributions
- § 403 Taxation of employee annuities
- § 404 Deduction for contributions of an employer to an employees’ trust or annuity plan and compensation under a deferred-payment plan
- § 404A Deduction for certain foreign deferred compensation plans
- § 405 Repealed
Official notes
Show the Law Revision Counsel's notes (amendments, effective dates)
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 403(b)(7)(A)(ii), referred to in subsec. (c)(4)(E)(iii), probably means section 403(b)(7)(A)(ii) of this title prior to amendment by Pub. L. 116–94, div. O, title I, § 109(c)(2), Dec. 20, 2019, 133 Stat. 3151.
The Employee Retirement Income Security Act of 1974, referred to in subsec. (e)(1)(A)(i), (5)(A), (C), is Pub. L. 93–406, Sept. 2, 1974, 88 Stat. 829. Sections 404, 514, and 801 of the Act are classifed to sections 1104, 1144, and 1193, respectively, of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 29 and Tables.
The date of the enactment of the SECURE 2.0 Act of 2022, referred to in subsec. (e)(12), is the date of enactment of div. T of Pub. L. 117–328, which was approved Dec. 29, 2022.
Amendments
2022—Subsec. (a). Pub. L. 117–328, § 604(a), added pars. (2) and (3) and redesignated former par. (2) as (4).
Subsec. (b)(1). Pub. L. 117–328, § 604(b), inserted “, or to have made on the employee’s behalf,” after “elect to make” and “, or of matching contributions or nonelective contributions which may otherwise be made on the employee’s behalf,” after “otherwise eligible to make”.
Subsec. (c)(1). Pub. L. 117–328, § 604(c), inserted “, matching contribution, or nonelective contribution” after “elective deferral” in introductory provisions.
Subsec. (d)(5). Pub. L. 117–328, § 325(a), added par. (5).
Subsec. (e). Pub. L. 117–328, § 127(e)(1), added subsec. (e). Former subsec. (e) redesignated (f).
Subsec. (f). Pub. L. 117–328, § 127(e)(1), redesignated subsec. (e) as (f).
Subsec. (f)(3). Pub. L. 117–328, § 604(d), added par. (3).
2014—Subsec. (c)(4)(E)(iii). Pub. L. 113–295 substituted “403(b)(7)(A)(ii)” for “403(b)(7)(A)(i)”.
2013—Subsec. (c)(4)(E). Pub. L. 112–240 added subpar. (E).
2010—Subsec. (c)(4). Pub. L. 111–240, § 2112(a), added par. (4).
Subsec. (e)(1)(C). Pub. L. 111–240, § 2111(a), added subpar. (C).
Subsec. (e)(2). Pub. L. 111–240, § 2111(b), amended par. (2) generally. Prior to amendment, text read as follows: “The term ‘elective deferral’ means any elective deferral described in subparagraph (A) or (C) of section 402(g)(3).”
Statutory Notes and Related Subsidiaries
Effective Date of 2022 Amendment
Amendment by section 127 of Pub. L. 117–328 applicable to plan years beginning after Dec. 31, 2023, see section 127(g) of Pub. L. 117–328, set out as a note under section 72 of this title.
Pub. L. 117–328, div. T, title III, § 325(b), Dec. 29, 2022, 136 Stat. 5359, provided that:
“(1) In general.— Except as provided in paragraph (2), the amendment made by this section [amending this section] shall apply to taxable years beginning after December 31, 2023.“(2) Special rule.— The amendment made by this section shall not apply to distributions which are required with respect to years beginning before January 1, 2024, but are permitted to be paid on or after such date.”
Pub. L. 117–328, div. T, title VI, § 604(e), Dec. 29, 2022, 136 Stat. 5393, provided that: “The amendments made by this section [amending this section] shall apply to contributions made after the date of the enactment of this Act [Dec. 29, 2022].”
Effective Date of 2013 Amendment
Pub. L. 112–240, title IX, § 902(b), Jan. 2, 2013, 126 Stat. 2371, provided that: “The amendment made by this section [amending this section] shall apply to transfers after December 31, 2012, in taxable years ending after such date.”
Effective Date of 2010 Amendment
Pub. L. 111–240, title II, § 2111(c), Sept. 27, 2010, 124 Stat. 2566, provided that: “The amendments made by this section [amending this section] shall apply to taxable years beginning after December 31, 2010.”
Pub. L. 111–240, title II, § 2112(b), Sept. 27, 2010, 124 Stat. 2566, provided that: “The amendments made by this section [amending this section] shall apply to distributions after the date of the enactment of this Act [Sept. 27, 2010].”
Effective Date
Section applicable to taxable years beginning after Dec. 31, 2005, see section 617(f) of Pub. L. 107–16, set out as an Effective Date of 2001 Amendment note under section 402 of this title.
Regulatory Authority
Pub. L. 117–328, div. T, title I, § 127(f), Dec. 29, 2022, 136 Stat. 5329, provided that:
“The Secretary of Labor and the Secretary of the Treasury (or a delegate of either such Secretary) shall have authority to issue regulations or other guidance, and to coordinate in developing regulations or other guidance, to carry out the purposes of this Act [div. T of Pub. L. 117–328, see Tables for classification], including—“(1) adjustment of the limitation under section 801(d)(1) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1193(d)(1)] and section 402A(e)(3) of the Internal Revenue Code of 1986, as added by this Act, to account for inflation;“(2) expansion of corrections programs, if necessary;“(3) model plan language and notices relating to pension-linked emergency savings accounts; and“(4) with regard to interactions with section 401(k)(13) of the Internal Revenue Code of 1986.”