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A deferred compensation plan allows a company's directors to elect to defer a portion of their director fees. The deferred amounts are distributed upon the earlier of a 409A change of control or a director's separation from service. At the time of an election to defer, the director can elect to receive payments upon a separation from service either in a lump sum or in annual installments. The plan provides that if installments are elected, the number of annual installments will equal the number of full calendar years the director was a participant in the plan, up to 10 installments. So, for example, if a director has a separation from service after 6 years in the plan, he or she will receive 6 annual installments, and if the director has a separation from service after 12 years in the plan, he or she will receive 10 annual installments. This seems like a violation of the toggle rule because it provides for different times and forms of payment for the same 409A payment event, and I don't believe that any of the exceptions apply, but I'd love to entertain an argument that it's permissible.

Your conclusion is correct. You referenced: Vested balance = $25,000 Existing loan = $25,000 50% vested balance limit 50% * $25,000 = $12,500 Maximum total loan amount allowed across all loans $12,500 - $25,000 = ($12,500) ($12,500) is less than 0. Not eligible for any additional loans. All loans cannot exceed the Maximum statutory limit, which is the lesser of 50% of the vested account balance or $50,000

Oops, no more than half . . . . , or just half.

On Santo Gold’s hypo, isn’t the account balance after the first loan is made still $50,000—that is, $25,000 participant loan receivable + $25,000 other investments? But wouldn’t ERISA § 408(b)(1) and Internal Revenue Code § 72(p)(2)(A) limit the amount for a second loan? Consider 29 C.F.R. § 2550.408b-1(f)(2)(i) https://www.ecfr.gov/current/title-29/section-2550.408b-1. Consider 26 C.F.R. § 1.72(p)-1/Q&A-20 https://www.ecfr.gov/current/title-26/section-1.72(p)-1. Even before applying the tax Code limits, ERISA § 408(b)(1) limits the outstanding balance of all loans to the participant to more than half the participant’s vested account (measured after the origination of each loan). On Santo Gold’s hypo, if the participant when applying for a second loan has not yet repaid anything on the first loan, isn’t the second loan $0?

Your math and logic is all wrong. Read the IRS examples: https://links.us1.defend.egress.com/Warning?crId=6984f4a2c933bcd338c721dd&Domain=oneblueridge.com&Threat=eNpzrShJLcpLzAEADmkDRA%3D%3D&Lang=en&Base64Url=eNrLKCkpKLbS1y9JTcwt1svNTC7KL85PK9FLzs_Vz01NLdE3MrE0s7AwMbe0tDA3M7IvsA21zEsvrfIrzM4M8CrLyvIMzQYALWcXFw%3D%3D&@OriginalLink=teams.microsoft.com

The participant can take a second loan, but there is something wrong if in the above example, they are limited to $25,000 with one loan, but can get $37,500 with 2 loans (or more $$$ with > 2 loans). Is the maximum second loan calculation: [[50% * $25,000 (vested balance)] - $25,000 (current loan balance] = -$12,500. Since this is less than $0, then no second loan is available?

Yes, a participant can generally take multiple 401(k) loans if allowed by the plan; however, care should be taken to ensure that all loans combined do not exceed IRS limits.

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This is too simple, but here goes: Participant has a $50,000 vested 401k account balance. They take a maximum loan of $25,000 and have no other loans at the time A few days later, they realize they need more $$$ and wish to take a second loan (plan allows for this). Lets say the account balance is static and in a few days, the vested account balance is now $25,000 (after the initial loan) and no loan repayments have been made yet. Can the participant take a second loan for $12,500 (50% of $25,000)? I'm sure the answer is "No", but the above makes sense in a weird way. Any comments are appreciated.

The time to negotiate provisions about a recordkeeper’s conversion-out is before the plan’s responsible plan fiduciary makes a service agreement with the recordkeeper the plan later might want to leave. The time to negotiate provisions about a recordkeeper’s conversion-in is before the plan’s responsible plan fiduciary makes the service agreement with the recordkeeper that would, if engaged, process the conversion-in. For many plans, either observation is impractical because a plan might lack bargaining power. Beyond whatever service obligations a plan might get, a transition from one recordkeeper to another calls for not only caring work from every service provider but also strong and sustained oversight and supervision from the plan’s responsible plan fiduciary. Each recordkeeper might, to supplement the plan fiduciary’s attention, appeal to the other recordkeeper’s sense of business decency and fair dealing. A mature recordkeeper might work to get and keep a good reputation as both a graceful loser and an accommodating winner. Bill Presson is right that—at least regarding mutual fund shares, collective trust fund units, and insurance company separate account units (forms of investment designed for redemptions)—a transfer of property other than a payment of money is unusual.

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A few further observations: A service provider’s agreement might provide the accounting method the service provider uses in assembling information into a draft Form 5500 report for the plan administrator’s review. If the agreement specifies cash accounting, a service provider might decline to provide service on a different method. Or, a service provider might offer accrual accounting for an extra fee. Paul I describes a mainstream outlook about a relationship between an adviser and an advisee. But some professionals have a more nuanced outlook, recognizing that one’s client might have its own sensible reason for not following advice. Some don’t object to a client’s informed choice, if the resulting act or failure to act is not a crime. If a service provider’s relationship with a referral source is more important than the relationship with the plan’s sponsor/administrator, a service provider might suggest alternative accounting treatments as a way to appease a referral source. A payer’s Form 1099-R report is on what was paid in the year reported on. Even if Plan 2’s administrator assumes a distribution payable in Plan 2’s Form 5500 report on 2025, Plan 2’s payer would report the $3,500.00 on a 2026 Form 1099-R report. This is not advice to anyone.

Just to add to what Paul said - you will never get an in-kind transfer from one RK to another. All the shares are held in omnibus accounts.

CAFA, are you asking about an incentive to elect against covering one's spouse (what Chaz describes), or about making an employee's spouse ineligible if the spouse is eligible for other health coverage? If it's about making a spouse ineligible, one guesses that Medicare might be treated differently than employment-based group health plan coverage.

Onboarding a plan requires attention to extremely granular detail that is customized to the plan provisions, the deconversion processes of the existing service providers including potentially the recordkeeper, TPA and investment firms, the client's internal administrative support including payroll, HR systems, and funding procedures, and to the you as the new service provider including everything needed to provide continuity of the rights and privileges of all of the plan participants. Coordinating all of this commonly takes 10-12 weeks, and starts with working out a detailed work plan in the first few weeks with all of the parties involved. The time for asking your questions is at the beginning of the conversion process and the people you need to ask are the client and the existing service providers.

Peter lays out the basis for arguing that the plans were closed out in 2025, and makes it clear that this is solely the plan's fiduciaries' (read client's) decision. I expect most practitioners would say don't sweat the $0.50 for Plan 1 and writing off the $0.50 with no adjustment to the 1099R, most would say it is really pushing it where the amount is $3,500 that was not closed out until 31 days after the end of the plan year. From the perspective of a service provider, I would explain to the client that it is their decision to make and their fiduciary responsibility and accountability for the consequences of their decision (unless you are a 3(16) provider). I would let the client know I disagree with the Advisor and I only would be willing to prepare a final filing for 2026 along with a 1099R for the residual payment. If the client chooses to follow the Advisor's "promise", then the Advisor can help the client find someone who is willing to close out everything for 2025. The plans are closing so there is no future work for you on those plans. If your relationship with the client is ongoing, keep in mind that if the client chooses to follow the Advisor's advice over yours, that says something about the relative value of your relationship to the client. This is also true about any relationship you may have with the Advisor.

I believe, off the top of my head, that HHS has informally stated that an opt-out/cash-out incentive does not violate the MSP rules if it is available to Medicare-entitled employees on the same terms as other employees. But my recollection is that the informal guidance was provided many years ago so I recommend checking to see if it has revised its thoughts or has issued more recent guidance.

Indeed, no sense creating a MDO for everyone else to fix one mistake.

The Instructions for a Form 5500 report generally allow a plan’s administrator (see I.R.C. § 414(g)) to report financial information on a cash, modified-cash, or accrual basis of accounting for recognition of transactions (if the administrator uses one method consistently). If an administrator reports with accruals, it might recognize a dividend receivable (for the amount, if any, not paid to the plan’s trust by December 31) and a distribution payable as at December 31, 2025 (for the follow-on increment of the final distribution not paid until January). Consider that a plan’s administrator, not a nondiscretionary service provider, decides the method of accounting. Likewise, the administrator decides how accounting principles apply to a set of facts. Even if an administrator made all preceding years’ reports on the cash-receipts-and-disbursements method of accounting, an administrator in its discretion might find that accrual accounting fits for an intended plan-termination year and facts like those you describe. If an administrator lacks enough knowledge about generally accepted accounting principles, it might seek a certified public accountant’s advice (even if that professional will not audit, review, compile, or assemble any financial statements or other report). This is not advice to anyone.

2 separate one-person calendar year plans terminated and distributed assets in 2025. Both plans received interest/dividends at the last moment that were not able to be distributed by 12/31/25 and ended up with balances. Plan 1 was $0.50. Plan 2 was $3,500.00. Both plans managed to zero out by 1/31/26. Both plans have asked to incorporate those amounts into 2025 distributions with the following implications: Form 1099-R's would be amended 2025 Form 5500 would be Final I think we can live with doing that for Plan 1, but Plan 2 is more questionable. We are more comfortable with a 2026 Final 5500 but the client was promised (by the Advisor) that would not be necessary. Just looking for thoughts on whether there is a de minimis for this situation of when to combine it for prior year?

We just finished a brutal plan conversion. The plan was on Guideline and went to accrue during our blackout. All of the conversion assets were sitting in cash for 31 days, which is absolutely unacceptable to me. For those who are more familiar with the recordkeeping side, could you help me understand how this could happen? The RK said they didn't have all the conversion files, blah blah blah. 1) How many plans are converted in kind vs sold ->Wire->Reinvest? -And why aren't all plans in kind? 2) What can I do in the future to prevent this from happening? Just send the RK daily emails asking for updates when money is in motion? What is your guys process?

Im assuming this is not the first year filing a return for the plan, and you filed an SF for the prior year? If so, you can continue to file an SF until you cover more than 120 participants and meet the other eligibility conditions (total of eight conditions). See instructions to the 5500-SF, page 3, Who May File Form 5500-SF, for all conditions.

Sounds like you have an AckID then, so you can prove that it was filed. I would start with EFAST support, but when it comes to issues beyond what can be found in the instructions to the forms, they usually refer you to Office of the Chief Accountant at the DOL at 202/693-8360.

But are there some participants who might perceive a retroactive amendment as unfair because they obeyed the then-stated 10% limit and might have desired to do more?

Client has 105 account balances (125 participants) at the beginning of the plan year. I am assuming we can use the 80-120 rule to continue filing the 5500-SF until the number of account balances exceeds 120 as of the beginning of the plan year. Any input would be greatly appreciated.