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for Boston Plasterers & Cement Masons Local 534 Benefits Office (Dorchester MA)View the full text of this job opportunity

I’ll answer a part of one of my questions: For § 129, “[t]he term ‘employee’ includes, for any year, an individual who is an employee within the meaning of section 401(c)(1) (relating to self-employed individuals).” I.R.C. (26 U.S.C.) § 129(e)(3) https://www.govinfo.gov/content/pkg/USCODE-2024-title26/html/USCODE-2024-title26-subtitleA-chap1-subchapB-partIII-sec129.htm. About Eddy’s question: Because there is no Treasury rule to implement or interpret Internal Revenue Code § 128 or § 129, a reasoned interpretation of § 128(c), including its reference to “paragraphs (2), (3), (6), (7), and (8) of section 129(d)”, might be a substantial-authority tax position. See 26 C.F.R. § 1.6662-4(d)(3). This is not advice to anyone.

What happens in the case of a self-employed business with only the owner as an employee (e.g. independent contractor-type businesses) and the non-descrimination provision? Can they offer a Trump Account to their employees (just themselves in this case)? Obviously, in this case, no true discrimination can occur, as there are no other employees to discriminate against. Further one could argue that we cannot calculate the average benefits paid to non-highly compensated employees (we cannot divide by zero), so the 55% rule should not apply. Is there any guidance or case law on this?

Thanks for the good information, @Peter Gulia and @fmsinc. I am definitely recommending that they run this past their attorney, but I'll bring up these points to them.

There are 163,000+ ERISA qualified retirement and pension plans in the USA are you going to assume that it is your Plan. I would kick it back and require the Order to identify the correct name of the plan. You didn't say that this was a QDRO and that it was a garnishment intended to implement a criminal restitution. In order for that to take place the court would first have to determine that the debtor's spouse did not have a marital interest in the Plan. In US v. Abell, 435 F.Supp.3d 299 (D. Mass.,2020), affirmed 985 F.3d 111 (2021), the husband pleaded guilty to eight counts of wire fraud and money laundering and was sentenced to 97 months incarceration and three years supervised release. The Court also issued an Order of Forfeiture for criminal restitution in the amount of $3,879,750.00. The Government sought a Writ of Garnishment against the husband's assets including his 401(k) plan with an approximate value of $393,500.00. The husband and his wife oppose garnishment of the 401(k) account on the grounds that the wife had a vested interest in the 401(k) account by virtue of her marriage to the husband, and that Massachusetts property law compels equitable distribution of marital assets and, therefore, the wife is entitled to an equitable portion of the funds in the 401(k) account. The court held: "The argument that Massachusetts property law precludes garnishment of defendant's 401(k) Account is unavailing. Persuasive case law indicates that the pre-divorce property interest of an individual in her spouse's ERISA-qualified retirement account is governed exclusively by federal law, not state property law. See, e.g., United States v. Novak, 476 F.3d 1041, 1061 (9th Cir. 2007) (en banc) ("Retirement plans covered by ERISA ... are governed exclusively by federal law."); United States v. Beulke, 892 F. Supp. 2d 1176, 1180 (D.S.D. 2012) ("Federal law, not state community property law, determines whether a person has a 'property or a right to property' interest in an ERISA-qualified pension plan."). It is undisputed that the Abells are still married. In the absence of a divorce decree or other qualifying domestic relations order, state property law will not displace federal law with respect to a spouse's alleged claim to a 401(k) Account subject to a criminal restitution order. See Beulke, 892 F. Supp. 2d at 1180." (Emphasis supplied.) In US v. Brazile, Case No. 4:18-cv-00056 SEP., United States District Court, E.D. Missouri, Eastern Division.(2020), - -https://scholar.google.com/scholar_case?case=17860472826493880578&hl=en&lr=lang_en&as_sdt=6,33&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:12484640753426065479:AAGBfm1agvHLwT5aWZ_N6PDZrK7iWFqV8A&html=&eexpid=320022102 ...involved a case where on July 30, 2013, Steven Brazile ("Steven") pleaded guilty to one count of transportation of securities obtained by fraud, in violation of 18 U.S.C. § 2314. As a part of his plea agreement with the Government, Steven acknowledged that he owed restitution in the amount of $3,902,880.85. The Government has a lien against Steven's property and rights to property under 18 U.S.C. § 3613(c) as a result of the judgment entered against him on November 13, 2013, in the Northern District of Illinois. Before the entry of Steven's sentence and judgment, Lorraine Brazile ("Lorraine"), Steven's then-wife, filed a suit for dissolution of marriage in the Circuit Court of St. Louis County, Missouri, on July 25, 2013. Id. On August 29, 2013, Defendants entered into a voluntary Property Settlement and Separation Agreement ("Agreement"), and the circuit court entered a final judgment of dissolution awarding Lorraine child support and a portion of Steven's pension benefits. On August 24, 2016, Defendants submitted a qualified domestic relations order ("QDRO") to the divorce court, which assigned Lorraine 100% of Steven's lump sum benefit amount and monthly annuity benefits. The QDRO similarly awarded Lorraine 100% of the Braziles' marital home on Vienna Avenue (the "Vienna property"). In September of 2017—four years after their marital dissolution and 13 months after they submitted their QDRO assigning the disputed assets to Lorraine—probation officers conducted a home visit and discovered that Steven and Lorraine were living together with their children and were raising their kids together as a "family." Id. ¶ 28. The Government contends that this demonstrates the Defendants entered into a "sham divorce" to transfer assets to Lorraine that could otherwise have been used to pay victim restitution. The Government alleges fraudulent transfer in violation of 28 U.S.C. § 3304(a)(2) (Count I); fraudulent transfer in violation of 28 U.S.C. § 3304(b)(1)(A) (Count II); and fraudulent transfer in violation of 28 U.S.C. § 3304(b)(1)(B) (Count III). The Government alleges that Steven has violated three provisions of the Federal Debt Collection Procedures Act ("FDCPA"). As a remedy, it asks the Court to void the final judgment and dissolution of property in Defendants' divorce case, enter judgment for the United States for the full value of the property transferred from Steven to Lorraine, and grant the United States a lien against all fraudulently transferred property such that it can seize that property immediately to pay Steven's restitution. By seeking dissolution of agreements to which he is a party, reversal of his transfer of assets to Lorraine, and seizure of the house he lives in as well as other assets that allegedly support him and his family—all in satisfaction of Steven's own debt. The court goes on to consider several evidentiary issues, expert witness qualifications, res judicata, collateral estoppel, waiver, equitable estoppel, and more. The Court then held: "Count III alleges constructive fraud in violation of 28 U.S.C. § 3304(b)(1)(B). Doc. [1] at 11. To prove constructive fraud under that section, the Government must show that Steven transferred assets to Lorraine "without receiving a reasonably equivalent value in exchange for the transfer" at a time when he "intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due." 28 U.S.C. § 3304(b)(1)(B)(ii). "As noted already, the Government alleges the Braziles' divorce settlement gave Lorraine all of the couple's viable assets in order to insulate those assets from Steven's criminal restitution liabilities. The Government thus contends that all the elements of § 3304(b)(1)(B) have been met. Doc. [66] at 5-12." * * * * "By contrast, the Government has produced substantial, undisputed evidence that Steven was aware of his impending restitution liabilities when he signed the divorce settlement. See, e.g., Doc. [85] ¶¶ 15, 17-18, 32. The restitution debt totaled roughly four times what Steven received in the divorce, even if the assets allocated to him are assigned their full value. See Doc. [87] at 31 (explaining that the "grand total" of Steven's share of the divorce settlement amounted to $800,490.0).[7] Steven has neither contradicted this evidence nor produced other evidence that would support a finding in his favor, so the Government is entitled to summary judgment." See also Cf: United States of American v. Wolas, 520 F.Supp.3d 114 (2021) - Criminal Action No. 17-10198-FDS,United States District Court, D. Massachusetts (2021), - https://scholar.google.com/scholar_case?case=9503464558169105254&q=United+States+of+American+v.+Wolas,+Criminal+Action+No.+17-10198-FDS,United+States+District+Court,+D.+Massachusetts+(2021)&hl=en&as_sdt=20000003= another forfeiture case where the parties had been divorced and sought to amend the divorce decree to give the ex-wife the ex-husband's $700,000.00 retirement account. Said the Court: "In Florida, marital assets are distributed equitably upon divorce. Fla. Stat. Ann. § 61.075. Such assets include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs." Fla. Stat. Ann. 61.075(6)(a) (emphasis added). A spouse who does not have legal title to a marital asset acquires an interest in that asset only if a court issues a judgment during the divorce proceeding establishing that interest. United States v. Kermali, 60 F. Supp. 3d 1280, 1283 (M.D. Fla. 2014) ("In Florida, however, there is no legal interest in marital assets until a judgment vesting such interest has been entered in a divorce proceeding."); Fla. Stat. § 61.075(8) ("[T]itle to disputed [marital] assets shall vest only by the judgment of a court."). (Emphasis supplied.) In re Michael GONSALVES, Debtor, Monica Gonsalves, Plaintiff v. Michael Gonsalves, Defendant, Bankruptcy No. 12–30233, Adversary No. 13–00023, Signed Oct. 1, 2014, 519 B.R. 466, United States Bankruptcy Court, D. Maryland, at Greenbelt, the Court said: "The Master's Report did not include a statement of the standards employed to determine extant property. But the standards are well established. In determining a marital award in Maryland, a court must determine the amount and value of marital property at trial. Property that is disposed of before trial cannot be declared marital property, with the exception of dissipated property. Omayaka v. Omayaka, 417 Md. 643, 12 A.3d 96, 101 (2011). Generally, "marital property which generates a monetary award must ordinarily exist as "marital property" as of the date of the final decree of divorce based on evidence adduced at the trial on the merits or a continuation thereof. Therefore, property disposed of before commencement of the trial under most circumstances cannot be marital property. Although, "marital property" is defined as "all property, however titled, acquired by either or both spouses during their marriage ...," the legislative scheme of the 1978 Marital Property Act contemplates determination of marital property at the time marriage is dissolved, i.e., when the absolute divorce is granted. On a related matter, see USA v. Wells, No. 23-3969,D.C. No. 3:13-cr-00008-SLG-1, United States Court of Appeals for the 9th Circuit, (September 26, 2025), addressing the right to seize the full amount of a convicted felon’s TSP account under the Mandatory Victims Restitution Act of 1996 (MVRA) in derogation of the spouse’s right to insist on an annuitized payout what would make is subject to a garnishment not to exceed 25%. The purpose of the MVRA is to provide compensation for crime victims and their families. Said the court: “Under the MVRA, the government cannot enforce a restitution order by cashing out a defendant’s retirement plan account if the retirement plan’s terms prohibit the defendant from doing so without spousal consent. Here, FERSA § 8435 provides the relevant terms of Wells’ retirement plan. Section 8435 prohibits Wells from cashing out the balance of his TSP account without his spouse’s consent. Section 8437(e)(3) does not expand the government’s authority under the MVRA, nor does it override FERSA’s spousal protections.” See United States v. Byers, 133 F.4th 824 (USCA 8th Cir. 2025). The IRS brought suit against the husband to enforce a substantial tax lien against the family home that was titled in his sole name. He and his wife claimed that the wife had a property interest in the property as the “marital homestead”, pursuant to Minn. Stat. § 507.02, and, therefore, was entitled to half of the proceeds from the sale of the property. Said the Court: “Although "Minnesota homestead laws," including § 507.02, afford Deanna "extensive protection to safeguard her rights and interests in the homestead property owned by [Ronald]," they "do not vest in [Deanna] a property interest which rises to the level of that recognized under Texas law in United States v. Rodgers, 461 U.S. 677[, 103 S.Ct. 2132]." Id. As a result, Deanna's "homestead interest in the [Wayzata Property] is not in the nature of a property right for which the government need compensate in a forced sale action under 26 U.S.C. § 7403." Id.[4] The district court did not err in determining that Deanna lacked a present property interest in the home and granting summary judgment to the government.” Although Minnesota has the concept of “marital property” in its law, Minnesota Statutes 518.003, neither party argued that the wife had a marital property interest in the proceeds of sale. SOOO... since you have a fiduciary duty to the Participant and a potential Alternate Payee you might want to confirm that there is in fact no such potential Alternate Payee who will suffer a loss of benefits if a divorce action is pending and/or the account with which you are dealing is "marital" or "community" property, and or is not subject to being garnished or attached. And while you are at it, take a look at one of my favorite cases: Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011)- https://scholar.google.com/scholar_case?case=4019345202025914766&q=brown+v.+continental+airlines&hl=en&as_sdt=20000003 Continental alleged that a number of pilots and their spouses obtained "sham" divorces for the purpose of obtaining lump sum pension distributions from the Continental Pilots Retirement Plan that they otherwise could not have received without the pilots' separating from their employment with Continental. The pilots were allegedly acting out of concern about the financial stability of Continental and the fear that the Plan might be turned over to the PBGC and that their retirement benefits would be substantially reduced. By divorcing, the pilots were able to obtain QDROs from state courts that assigned 100% (or, in one instance, 90%) of the pilots' pension benefits to their respective former spouses. The Plan provides that, upon divorce, if the pilot is at least 50 years old (as all the pilots in this case were), a former spouse to whom pension benefits are assigned can elect to receive those benefits in a lump sum even though the pilot continues to work at Continental. The former spouses presented the QDROs to Continental and requested payment of lump-sum pension benefits. After the former spouses received the benefits, the couples remarried. Continental sought to obtain restitution under ERISA Section 502(a)(3). The Court of Appeals noted that ERISA § 206(d)(3) limits the QDRO qualification determination to whether the state court decree calls for benefit payments outside the terms of the Plan. It rejected Continental’s expanded reading of § 206, concluding that plan administrators may not question the good faith intent of Participants submitting QDROs for qualification David

I would approach it as, that should be a company check for the deposit. Where the company got the money from, I don't mind hearing/seeing/speaking no evil as to how. So that I can at least apply a standard of reasonableness

Wait a second, the plan benefit never gets to go over 100% of FAE3. That's what's forcing the payments to start early in the first place. The post-NRA adjustment is on the 290,000, not the 100%.

The shareholder might want his lawyer’s, accountant’s, and actuary’s collaborative advice about whether it makes sense for the shareholder to loan money to the corporation, or contribute new capital to the corporation. If either transaction makes sense, the corporation then might have money to pay a contribution to the pension plan. This is not advice to anyone.

Amending is fine. Assuming it's a non PBGC plan, just be careful of the 6% of comp limit in the DC plan as you may have to give more in the DC plan to one or two to pass testing.

I did see some accountants take this approach in 2025 to keep the comp below the limit to avoid the ROTH in 2026. For an owner only plan it has no effect on the amount the owner can get in the plan. If there are employees, and cross tested, then there may be higher contributions required for the NHCE's.

Well on its face it is a true statement. Once you adopt the plan, simply not adopting it again is not enough to end your participation. With that being said I think you just do a new one today and have them execute it. All of their original information regarding the effective date of their participation is unchanged. Then you will have a participation agreement that more perfectly aligns with the new format of the plan document.

Hi, Does anyone see anything wrong with a DB plan sponsored by an s corp, the owner needs cash to make the contribution so he will contribute from his personal brokerage account (and not from the corp account).? Thank you

Thank you very much, Calavera.

for Growing national benefits brokerage firm (Tinley Park IL / AR / CA / MN / OH / OR / UT / Hybrid)View the full text of this job opportunity

for Strongpoint Partners (Remote / Chicago IL)View the full text of this job opportunity

Yes, BCD would be established from then. I would provide all applicable forms of benefits as of that BCD, including lump sum that would be payable at that time. Then, based on the election, I would figure out what should be paid now, including missing payments and interest. And don't forget about RMD issues as well.

I don't think that's clear. If you want safety, maybe ignore the statutorily excludable and apply the 6% to the rest.

Yes, assuming the plan allows.

Thanks @WCC - I agree that if the intent is not to match separately elected catch up, then the document should state that but just the standard "catch up contributions are not matched" provision, my opinion is that you must follow the term in regulations and catch ups are defined as deferrals that exceed either an plan or statutory limit (not verbatim obviously).

for Strongpoint Partners (Remote / Cincinnati OH)View the full text of this job opportunity

for Strongpoint Partners (Remote / Skokie IL)View the full text of this job opportunity

I agree with you. The separate election is just a cosmetic box used for "convenience". I am not a fan, but I know some sponsors have their reason why they think it is advantageous. I have seen this many times and those dollars should be matched. I have seen one or two documents written in a way that says "...we don't match contributions made under the separate catch-up election box". If your plan just says "we don't match catch-up", then those dollars should be matched.

for Employee Benefits Security Administration [EBSA] (Washington DC / Hybrid)View the full text of this job opportunity

for Pension Benefit Guaranty Corporation [PBGC] (Washington DC / Hybrid)View the full text of this job opportunity

And this is why this forum is excellent. Thank you!!