ERISA Benefits Law Desk ReferenceERISA Benefits Tech, LLC

Part 8 · Chapter 1

403(b) Plans

Law stated as of October 3, 2026 · 403(b) Plans

Scope and status

This is an actively changing area — SECURE 2.0 implementation (Roth catch-up, LTPT, automatic enrollment, CIT access), the 2024 final RMD regulations, and unsettled §414(d) governmental-plan status all bear on it. Verify every limit, effective date, and correction rule against current primary authority before relying on them.

Citations are to primary authority (Code section; Treasury/DOL regulation; agency guidance; controlling case law).

Anchoring authority: The core 403(b) regulations are T.D. 9340 (72 Fed. Reg. 41128, July 26, 2007; Treas. Reg. §§1.403(b)-0 through -11), as corrected. RMDs are governed by the 2024 final regulations T.D. 10001 (89 Fed. Reg. 58886, July 19, 2024). SECURE 2.0 catch-up rules are in T.D. 10033 (90 Fed. Reg. 44527, Sept. 16, 2025). Church-plan status rests on Code §414(e), Treas. Reg. §1.414(e)-1, and Advocate Health Care Network v. Stapleton, 581 U.S. 468 (2017); the §410(d) election on Treas. Reg. §1.410(d)-1. The DOL non-ERISA safe harbor is 29 C.F.R. 2510.3-2(f), read with FAB 2010-01 and Adv. Op. 2012-02A. Governmental-plan status under Code §414(d) has no final regulation — only the 2011 ANPRM (76 Fed. Reg. 69172). Related questions are treated elsewhere: HCE/coverage/§415/§402(g) mechanics in Part 5 (Qualified Plan Testing, Eligibility, and Vesting); distribution and RMD mechanics in Part 6 (Distributions, Loans, Rollovers, and RMDs); and 403(b) corrections in Part 21 (Plan Corrections: EPCRS, VFCP, and DFVCP).

Sections

Part A is shown in full. The other sections are listed by title; their text is available to subscribers.

Part A — 403(b) Fundamentals

A1.What a 403(b) plan is, and who may sponsor one

Part 8, ch. 1, § A1

A 403(b) plan is a tax-favored retirement arrangement available only to eligible employers: (1) a public school or other public educational organization of a State (a §170(b)(1)(A)(ii) entity), and (2) a §501(c)(3) tax-exempt organization; plus, for ministers, certain church and self-employed-minister arrangements. Statute: Code §403(b)(1)(A); Final reg: Treas. Reg. §1.403(b)-2. A for-profit employer cannot sponsor a 403(b) for its workforce (the one exception: any employer of a §414(e)(5)(A) minister is an eligible employer, but only with respect to that minister Final reg: Treas. Reg. §1.403(b)-2(b)(8)(i)(C)); an ineligible-employer plan is not a 403(b) at all. Eligible employers may also join a 403(b) multiple employer or pooled employer plan (Code §403(b)(15), added by SECURE 2.0 §106; not available to church plans). See Part 11 (Multiple-Employer and Small-Employer Arrangements). Rev. Proc.: Rev. Proc. 2021-30 §§4.06, 6.03).

A2.The three funding vehicles

Part 8, ch. 1, § A2

403(b) contributions must be held in one of exactly three vehicles: (1) an annuity contract issued by an insurance company; (2) a custodial account under Code §403(b)(7), invested in regulated investment company (mutual fund) stock or, since SECURE 2.0 Act §128, a Rev. Rul. 81-100 group trust. That Code change is not yet usable in practice; see E8; or (3) a retirement income account under Code §403(b)(9), available only to church-related employers. Statute: Code §403(b)(1), (7), (9); Final reg: Treas. Reg. §1.403(b)-8, -9.

A3.The written plan requirement

Part 8, ch. 1, § A3

Since the 2007 regulations (effective generally Jan. 1, 2009), every 403(b) plan must be maintained under a written plan that satisfies the §403(b) rules in form and operation, allocating responsibilities and incorporating all material terms (eligibility, benefits, limitations, the contracts available, and timing). Final reg: Treas. Reg. §1.403(b)-3(b)(3). Exception: for a church or QCCO (Treas. Reg. §1.403(b)-2(b)(5)), the written-plan requirement applies to its contributions to an annuity contract only if the annuity is part of a §403(b)(9) retirement income account; it is not extended to non-QCCO church-related employers. Final reg: Treas. Reg. §1.403(b)-3(b)(3)(iii). The IRS maintains a pre-approved 403(b) program and opinion-letter system.

A4.Consequences of failure to satisfy §403(b)

Part 8, ch. 1, § A4

If a contract fails to satisfy §403(b), the affected amounts generally lose tax-favored status and may be currently includible; the regulations and EPCRS limit collateral damage by treating failures contract-by-contract in some cases and providing correction. Final reg: Treas. Reg. §1.403(b)-3(d); Rev. Proc. EPCRS — current version.

Part B — Universal Availability and Nondiscrimination

  1. B1Universal availability for elective deferralsSubscribers
  2. B2The permitted exclusions — narrow and specificSubscribers
  3. B3Long-term part-time (LTPT) employees — ERISA 403(b) plansSubscribers
  4. B4Nondiscrimination for employer (non-elective and matching) contributionsSubscribers
  5. B5The governmental and church exemptions from nondiscriminationSubscribers
  6. B6Mandatory automatic enrollment (Code §414A)Subscribers

Part C — Contributions and Limits

  1. C1The §402(g) elective-deferral limitSubscribers
  2. C2Age-50 catch-upSubscribers
  3. C3The special 403(b) "15-year" catch-upSubscribers
  4. C4Roth contributions and the mandatory Roth catch-upSubscribers
  5. C5The §415(c) annual-additions limit and the 403(b) aggregation ruleSubscribers
  6. C6Compensation cap and includible compensationSubscribers
  7. C7Controlled-group / common-control for tax-exempt employersSubscribers
  8. C8Excess contributionsSubscribers

Part D — Distributions, Loans, and RMDs

  1. D1Distribution restrictions on elective deferralsSubscribers
  2. D2Hardship and in-service rulesSubscribers
  3. D3LoansSubscribers
  4. D4Required minimum distributionsSubscribers
  5. D5Taxation of distributions and rolloversSubscribers

Part E — Exchanges, Transfers, Terminations, and Miscellaneous

  1. E1Contract exchanges within the same planSubscribers
  2. E2Plan-to-plan transfersSubscribers
  3. E3Plan termination and the full-distribution requirementSubscribers
  4. E4Employers that cease to be eligibleSubscribers
  5. E5Rollovers into a 403(b); QDROs; deemed IRAsSubscribers
  6. E6Defined benefit and frozen plansSubscribers
  7. E7Church retirement income accounts (cross-reference)Subscribers
  8. E8Collective investment trusts — the unresolved securities-law gapSubscribers

Part F — ERISA Status of a 403(b) Plan

  1. F1The default and the DOL non-ERISA safe harborSubscribers
  2. F2What crosses the line (FAB 2010-01)Subscribers
  3. F3Consequences of ERISA coverageSubscribers
  4. F4Governmental and church 403(b) plans are outside ERISASubscribers
  5. Parts G and H — Governmental and Church Plans (moved)Subscribers

The first Part of each chapter is open to everyone. The remaining sections, with their authority and practice points, are available to subscribers and to clients of ERISA Benefits Law Group, PLLC whose engagement includes access.

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