Belgarath Posted September 24, 2013 Report Share Posted September 24, 2013 501©(3) private school has two 403(b) plans, using TIAA documents. One is an ERISA plan, and gives a 5% match if you defer at least 5%. The other is a "non-ERISA" plan that is deferral only. It is worth noting that these were set up (by whom I don't know) prior to DOL Advisory Opinion 2012-02A. I think TIAA did this two-plan thing routinely. Although the AO refers to a situation where a separate Money Purchase plan receives the "match" if the employee defers into the deferral plan, it seems to me that the AO would apply to the situation above as well. At the very least, it seems an aggressive interpretation to maintain that the "deferral only" plan is non-ERISA based upon the penultimate paragraph in the AO. I certainly would say the client should get advice from an ERISA attorney if they want to take the aggressive approach. None of it makes much sense to me, because the ERISA plan has no exclusions. Doesn't exclude participants who are in another 403(b) plan of the employer, so it has to file as a large plan. That being the case, I'm not sure what possible benefit there is to maintaining a separate plan, which now being (perhaps arguably) subject to ERISA will also require filing as a large plan, since it also doesn't exclude anyone. Seems as though everyone is eligible to defer into either plan. Now you get to prior 5500's. Can you take the approach that audit wasn't required for years prior to the AO (2012)? I don't see how... I'd love to hear any thoughts on this! Link to comment Share on other sites More sharing options...
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