§ 4972.
(c)
Nondeductible contributions
For purposes of this section—
(1)
In general
The term “nondeductible contributions” means, with respect to any qualified employer plan, the sum of—
(A)
the excess (if any) of—
(i)
the amount contributed for the taxable year by the employer to or under such plan, over
(ii)
the amount allowable as a deduction under section 404 for such contributions (determined without regard to subsection (e) thereof), and
(B)
the amount determined under this subsection for the preceding taxable year reduced by the sum of—
(i)
the portion of the amount so determined returned to the employer during the taxable year, and
(ii)
the portion of the amount so determined deductible under section 404 for the taxable year (determined without regard to subsection (e) thereof).
(2)
Ordering rule for section 404
For purposes of paragraph (1), the amount allowable as a deduction under section 404 for any taxable year shall be treated as—
(A)
first from carryforwards to such taxable year from preceding taxable years (in order of time), and
(B)
then from contributions made during such taxable year.
(3)
Contributions which may be returned to employer
(4)
Special rule for self-employed individuals
For purposes of paragraph (1), if—
(A)
the amount which is required to be contributed to a plan under section 412 on behalf of an individual who is an employee (within the meaning of section 401(c)(1)), exceeds
(B)
the earned income (within the meaning of section 404(a)(8)) of such individual derived from the trade or business with respect to which such plan is established,
such excess shall be treated as an amount allowable as a deduction under section 404.
(5)
Pre-1987 contributions
(6)
Exceptions
In determining the amount of nondeductible contributions for any taxable year, there shall not be taken into account—
(A)
so much of the contributions to 1 or more defined contribution plans which are not deductible when contributed solely because of section 404(a)(7) as does not exceed the amount of contributions described in section 401(m)(4)(A), or
(B)
so much of the contributions to a simple retirement account (within the meaning of section 408(p)), a simple plan (within the meaning of section 401(k)(11)), or a simplified employee pension (within the meaning of section 408(k)) which are not deductible when contributed solely because such contributions are not made in connection with a trade or business of the employer.
For purposes of subparagraph (A), the deductible limits under section 404(a)(7) shall first be applied to amounts contributed to a defined benefit plan and then to amounts described in subparagraph (A). Subparagraph (B) shall not apply to contributions made on behalf of the employer or a member of the employer’s family (as defined in section 447(e)(1)).
1
See References in Text note below.
(7)
Defined benefit plan exception
(Added [Pub. L. 99–514, title XI, § 1131(c)(1)], Oct. 22, 1986, [100 Stat. 2477]; amended [Pub. L. 100–647, title I, § 1011A(e)(1)], (2), title II, § 2005(a)(1), Nov. 10, 1988, [102 Stat. 3477], 3610; [Pub. L. 103–465, title VII, § 755(a)], Dec. 8, 1994, [108 Stat. 5023]; [Pub. L. 104–188, title I, § 1421(b)(9)(D)], Aug. 20, 1996, [110 Stat. 1798]; [Pub. L. 105–34, title XV, § 1507(a)], Aug. 5, 1997, [111 Stat. 1067]; [Pub. L. 107–16, title VI], §§ 616(b)(2)(B), 637(a), (b), 652(b), 653(a), June 7, 2001, [115 Stat. 103], 118, 130; [Pub. L. 108–311, title IV], §§ 404(c), 408(b)(9), Oct. 4, 2004, [118 Stat. 1188], 1193; [Pub. L. 109–280, title I, § 114(e)(5)], title VIII, § 803(c), Aug. 17, 2006, [120 Stat. 855], 996; [Pub. L. 117–328, div. T, title I, § 118(a)], Dec. 29, 2022, [136 Stat. 5302].)