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PFranckowiak

Late Contributions

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Deposits late by deposit date, but they mailed checks a week previous.    Do we calculate from check date or date that it was deposited into the account? 

 

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I think the rules is the date the assets are "segregated from employer assets" for purposes of the "DOL rule."  When they are deposited/invested may be a fiduciary issues, but "segregating" from employer assets is the first hurdle.

That said, IMHO, "mailed" meets the test, but I have lost that argument with the IRS on more than one occasion.  Their position was never fully spelled out, but the undertones were 1) who mails checks anymore; and 2) it was still drawn on a corporate account, so it was still in the employer's "possession" (despite decades of law to indicate that a check - a "negotiable instrument" when taken out of the control of the drafter was considered out of their control.

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Yes, it's still a late deposit.  I've had that issue before and it was treated the same as if there were 100 non-owners affected.

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