What if a retirement plan mis-codes a distribution?

I retired at 49 from a career in public safety, but was in the 401(a) retirement plan for over 25 years. Under section 329 of the Secure 2.0 act, the 10% penalty would now be waived on any distributions I take from that plan. Before making a withdrawal, I looked at the affiliated paperwork from the company (updated 12/20/22) and the tax notices address the after 50 eligibility for a waiver (does not apply to me), but not the 25 years of service waiver, so I called to get confirmation. The rep I spoke to (a senior advisor for our plan), was adamant that unless you meet the retired after 55 in the plan or were 59 1/2, regardless of profession, that they would code any distributions from the plan as an early withdrawal. When I tried to explain why it would not be considered an early withdrawal, he said I should talk to a tax preparer. If they do code it as an early withdrawal, how much of a headache is it going to cause me at tax time to explain it to the IRS that I qualify for an exception to the 10% penalty?
On another note, I have have a 457 and a 401(a) account with the same company. Other than simplification, are their pros or cons of rolling one into the other, and if the pros outweigh the cons, should I role the non-qualified account into the qualified, or vice versa? Thanks so much!



  • While the current 2023 1099R instructions do not yet specify that code 2 (early distribution exception) is to be used for eligible distributions, that is not a problem. If when you receive that 1099R, if code 2 is not shown then you simply attach Form 5329 to your return and indicate exception Code “01” on line 2. The 5329 Instructions have already been updated to include the 25 year service exception under exception Code 01.
  • The person you spoke with is not even up to speed with the age 50 exception that has been around for a few years now, and that is somewhat more surprising. In any event, it will be very easy to file the 5329 if you have to with the applicable 1040. Just be sure you have the required 25 years of service, however they measure it and the plan meets the definition of a “governmental” plan. Until further guidance is released there may also be a question whether the 25 years is required in the plan you retire from or counts prior employment covered under other plans. If you don’t have the full 25 with the current plan, then watch for clarification from the IRS.
  • If there is any doubt about qualifying per above, do not roll the 457 into the 401a since that would forfeit the penalty free distributions in the 457. In addition the following chart compares a 457b with a 401k or 401a. ERISA protection of the 401a may be slightly better than even a govt 457.
  • Comparison of 457(b) Plans, 401(k) Plans, 403(b) Plans, and Deemed IRAs – Employee Benefits Legal Resource Site (benefitsattorney.com)


Hugely helpful, thank you so much!



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