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Failure to deposit Simple IRA contributions


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I don't have all the facts on this one yet, but the business owner and his wife have failed to deposit amounts withheld for their personal Simple IRA contributions and employer match "for several years". Apparently they have had a couple of employees over the years and have deposited those employee's contributions and matches, just not the owner's and wife's.

Does anybody know if this would be considered "misuse or diversion of plan assets", making this error ineligible for any correction program?

If so, any ideas as to how to proceed?

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