Skip Navigation or Skip to Content
Audit & Assurance, Employee Benefit Services

Know the Rules Regarding Late Employee Deferral Deposits

At a Glance

Main Takeaway

Employers offering 401(k) plans for their employees are required to timely deposit employee salary deferrals and loan payments to the trust account each payroll cycle. As a general rule, these deposits should be made as soon as administratively feasible. Remittances outside “typical” timing may be considered late; without exception, remittances deposited later than the 15th business day of the following month are late. Consistency in the timing of remittance to the trust is crucial.

The Department of Labor (DOL) considers late remittances a prohibited transaction and must be reported and corrected.

Next Step

To avoid penalties for late 401(k) contributions, learn the rules, exceptions, and consequences of late deferral deposits, along with available options for fixing late deposits to restore compliance.

Understand the General Rule

Generally, salary deferrals and loan payments must be deposited as soon as possible to avoid extra employer costs and penalties; however, “as soon as possible” is not clearly defined by the IRS or DOL. Typically this time frame begins once the money is withheld from a participant’s paycheck and becomes reasonably segregated from the employer’s general accounts during a payroll cycle. The contributions become plan assets upon withholding from an employee’s pay and should be deposited as soon as possible.

The timeliness of 401(k) contributions will be scrutinized in a DOL investigation. The DOL will review the payroll and deposit records to determine how long your business usually takes to deposit the funds. If you regularly deposit within 2 days of payroll but start to deposit outside that typical range, the remittances with longer timing may be considered late, even if it has not reached the 15-day outer limit.

Understand How Plan Size Affects Deadlines

The size of the 401(k) plan will also affect the deposit deadline. Deferrals for small plans, with less than 100 participants on the first day of the plan year, will not be considered late if they are deposited within 7 business days after the funds are withheld from the employee’s paycheck.

For plans with more than 100 participants, there is no precise deadline. Instead, the deposit must be made at the earliest date the employer can reasonably separate the withholdings from its general assets.

What are Late Deferral Deposits?

According to DOL guidance, late deferral deposits are an employer’s 401(k) contributions to an employee deposited outside the typical remittance timing of the company. A late remittance should be corrected by funding lost earnings for each impacted employee for the late remittance. While the lost earnings amounts are typically not significant, calculating and allocating the amounts to each employee can be a time-consuming and tedious process. The process is often further complicated if a participant has left the plan prior to the correction.

Documented Procedures Improve Timeliness

Depositing 401(k) contributions late can easily be avoided by having a documented policy that is actively managed and followed. Each business should have a documented employee retirement plan remittance procedure that includes the steps necessary to ensure 401(k) contributions are properly submitted to the trust. Involved employees should be trained in the steps and procedures to avoid late remittances.

Procedures should detail which employees are responsible for remittances, which dates remittances must be made, and include steps to verify the funds have been received at the trust. Additionally, the procedures should provide for backup personnel who can follow them when the designated employee is sick or on vacation during the payroll cycle.

Last, the use of ACH/wire to submit contributions will improve the timeliness of contributions versus submission by a manual check. Many recordkeepers also have automatic withdrawal features, which reduce the manual components of this process and improve consistency in timing. Partnering with an advisory firm like Windes may help you identify best practices and technology advancements that can streamline and improve this process.

Know Potential Penalties

The Department of Labor states the penalty for an employer not submitting timely 401(k) contributions is that they must make the participant “whole” by funding the lost earnings. These lost earnings start from the date the deposit should have occurred until the deposit is completed.

The IRS will also apply a 15% excise tax on lost earnings. The tax must be paid using Form 5330. If the business does not pay the tax during the year the deposit was due, the 15% tax will apply to the next year and will continue each tax year until the error is corrected.

What if you Have to Make Corrections?

If your business has made a mistake or made a late deposit, you can self-correct or formally correct through the Voluntary Fiduciary Correction Program (VFCP) with the assistance of your third-party administrator to remain compliant with the IRS and the DOL.


Self-correction is a voluntary employer-initiated program that can correct late deposits on 401(k) plans, especially in cases where the lost earnings are not significant. Self-correction is typically performed with the assistance of a third-party administrator and requires the funding of lost earnings to the impacted participants, reporting of the late remittances on Form 5500, and filing of Form 5330. Because the correction is not reviewed and approved by the DOL, there is some risk in a DOL audit that the self-correction could be deemed insufficient; however, agents typically approve the correction and search for other issues. Occasionally, the DOL may require that a company determines earnings using an actual rate of return.

Voluntary Fiduciary Correction Program (VFCP)

A correction under VFCP is a lengthier process requiring submitting an application and a completed VFCP checklist to the DOL. One of the benefits is that if the submission is completed correctly, the plan sponsor will receive a formal “no action” letter from the DOL. The VFCP checklist is free to file, but completing the form and checklist is time-consuming. Most businesses partner with a third-party administrator or advisory firm to complete the process correctly.

In November 2022, the DOL proposed changes to the VFCP program to make it easier for fiduciaries to correct breaches and errors. The DOL is seeking public comment on these changes by January 17, 2023. The proposed procedures can not be used until finalized.

Partner with an Advisory Firm

An advisory firm like Windes can help you navigate the required documents, complex tax language, and requirements regarding 401(k) compliance and administration. If your business has more than 100 participants in the 401(k) plan, Windes can perform the plan audit to assist the company in meeting its reporting and audit requirements.

Timeliness of remittances is one of many compliance items reviewed as part of a plan audit. As qualified benefits plan auditors, we can provide guidance and tools to help the company improve operational compliance. In preparing for an audit, we recommend reviewing our 401(k) audit preparation checklist and utilizing helpful ERISA resources you can access when you have questions about your plan.


Complimentary Plan Audit Quote

Get a plan audit quote today from our ERISA specialists.
Payments OnlineTaxCaddy
Secure File TransferWindes Portal