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An opt-out is irrevocable. If he did opt-out, he cannot opt back in. If he did "not" opt-out (i.e. they can't find the evidence), then the plan is in bad compliance shape as you would have late safe harbor contributions for 8 years.

ETA, are you sure? I'm of the firm belief that nothing can be deferred earlier than the date that the wages would have been paid absent a 401(k) plan. Even though I think of that as the default I recognize that the regs authorize the inclusion in the prior year of that which is paid/payable in the first few days after the end of the period. So I agree that consistency is important. I'm just saying the default is that there is no inclusion in the prior year unless there is a conscious decision to do something which is not standard.

It's for data mining, and usually, where there's a mine, there's a shaft, no?

Opt-outs CAN be irrevocable, but they don't have to be. Which way has testing implications.

Assuming that the receiving participant is not actually comatose, for them to take note of money in their account that they know is not theirs and then to use it sounds like fraud or theft to me. If you go to an ATM to take out $20 and the machine gives you $2,000 (that you don't have in your account), wouldn't the bank have a way to get you to give it back or else? I personally thought that court decision was totally wrong, but in this case, a suitable exception might be made.

Let's see how many sponsors just say "you know what, never mind. I'll just terminate this thing." Tell ya one thing, I am all over pooled plans now... They are regulating these participant directed plans to the grave, literally...

And some of us will get to revel in the new Schedule J (Group Health Plan Information) as well. As much as I'd like to hang around for all this fun, I am old enough, and Feb. 3 is the 'GMK Out' date (ready or not as far as the wealth part goes)..

Yes and yes. I felt the answer was affirmative and that the participant will not be allowed to defer in Plan B for 6 months.

Does Plan A allow for Hardships? Does the participant qualify for a hardship under the definition of Hardship in Plan A? If the answer to both of these questions is yes, why wouldn't the participant be able to take a hardship?

So, you're asking if the participant is part of a plan that provides for hardships, can they be granted one? I know I'm missing something, but what is the question? 99.9997% of the time, you are safe following the terms of the plan. The other 3 out of a million, the plan may contain language that is inconsistent with the Regulations, and you would then follow the Regulations. Good Luck!

It's okay ETA...we all do that at some point or another

I got the fact pattern mixed up. I was reading that the payroll date was 9/25 and the funds were withheld at that time. It's my bad, but 99% of the effort in answering questions is actually determining the fact pattern; and I failed miserably! :-(

agree with Bill. We always went by check date. And that is also how W-2 compensation works. If a check is paid in the current year, it goes on the current W-2 even if the first pay period was for some days within the prior year. In all the processing I did on 401k plans, we always used check date and had no idea on what the actual pay period ending date was. That was not a piece of data that any client provided to us. I do agree that you should be consistent over time.

We've always recommended that our clients use check date. We would not show a 10/2 check date as a receivable for a 9/30 year end. If you try to use accrued compensation, I think you are not only going to need to include the compensation through the pay date of 9/25, but also the additional 5 days through 9/30. In 30+ years, I've never had the IRS, DOL or a CPA plan auditor have an issue with this.

Has either the employer or the plan's administrator evaluated whether the plan sponsor's resolution amended the plan? What does the plan state about what the sponsor must or may do to amend the plan?

somewhat related but different question: Partners in self directed DC plan. One partner has investment in an LLC. when the LLC needs signatures for legal related items as regards to the holding, do all of the Trustees of the plan actually have to sign the document or can it be just the participant holding the investment?

In the few cases I've seen, the company tells us what the payroll periods are for their tax year and what is reported on the W-2. And that's what we use. I think being consistent is what matters.

So all the books would be considered an Andy WarHaul?