Sorry- yes, profit sharing. Not bonuses.
I wasn't questioning the legality or anything, moreso just wondering what the benefit/risk is of doing it that way. I'm such a damn pessimist on stuff like that, that I have no faith that I'll ever see that money.
There are benefits of doing a Profit Sharing contribution over year-end bonuses, depending upon the goals the company has and the relationship they have with employees. There can also be benefits of doing bonuses over a Profit Sharing contribution.
A Profit Sharing contribution is made in addition to any mandatory match the employer has elected on the 401(k) portion of the plan. A Profit Sharing contribution is completely discretionary. Most employers make that decision at the end of each year for a variety of reasons.
The tax code does give some incentives to doing a Profit Sharing contribution, versus a bonus. First, no payroll taxes on either the employee or employer, which combined is usually approximately 20%. That puts more money into the hands of the employee and employer in the long run. Second, there can be formulas and eligibility criteria that favor elderly employees, depending upon the type of plan it is, such as an "age-weighted" Profit Sharing Plan. That allows an employer to establish a plan, still in compliance with ERISA, with the intent of helping older employees closer to retirement age. As employees stick with them longer and get closer to retirement age, those longevity employees will eventually be the ones garnering a larger portion of the benefit. Third, an employer can defer the contribution to the retirement plan until the due date of the entity tax return, thus giving cash flow flexibility. Fourth, there can be forfeiture clauses for employees who terminate early and before being fully vested, with the forfeited amounts being reallocated among remaining participants. Fifth, well, too many to list. Lots of reason to do, or not do, a Profit Sharing contribution in lieu of year-end bonuses.
As to your concern that you "won't see that money," ERISA rules governed by the DOL are very strict rules regarding Defined Contribution Plans (401k, Profit Sharing, and Money Purchase Plans) that protect you from that concern. You should get an annual statement with your balances, your vested amounts, etc. You, or your estate, are entitled to that upon meeting the retirement or disability provisions outlined in the Retirement Plan Adoption Agreement your employer adopted. The plan features are communicated to participants in their Summary Plan Description.
The only way you won't see it is if it is invested in assets that lose all of their value (something no employer should allow) or a premature death.
This "tax theory" discussion has been going on for my 35 years as a tax accountant. So far, the third rail to never be touched has been qualified retirement plans such as 401Ks. I might be wrong, but I would be very stunned if qualified retirement plans were now subject to taxation in a different manner than they are today. Too many Americans are vested in them and a very large industry (Wall Street and associates) makes large contributions to politicians to make sure such never happens.
In my mind, this is "much ado about nothing."