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What we have here is a failure to communicate...... The accountant needs to be told that it is never wise to finalize the contribution amount before a qualified plan expert weighs in. Isn't this just a case of the accountant recognizing the wrong amount for the 2015 deduction?

Coming in late here but FWIW, there is no doubt in my mind that the loan IS counted for purposes of determining the RMD, and the vesting rule does NOT apply (that is, you don't get out of the RMD simply because cash isn't available). I don't see not having a vested account and not having cash as being analogous.

$37,500 contributed in 2016, why not simply amend the 2015 return to be within both limits and count the remainder as a current year contribution deducted in 2016? Why insist on calling it a 2015 annual addition or excess?

To amplify Bird's prior response which I think it is totally on point. The participant loan issue is much more analogous to having too much tied up in an illiquid asset which does not relieve you from the RMD requirement.

I still have the odd view that the workings of a statute or other authority should result in the intent of the statute or other authority being fulfilled. And that it makes no sense when this does not happen. It's like my view of VCP and governmental plans. It is clear that VCP does apply to governmental plans. But the whole point of VCP was to encourage employers to come forward, knowing that the penalties for doing so are less than the penalties if they get audited. For governmental plans, in which the penalties on the employer if they get audited are typically nonexistent (deductions aren't at issue, and the trust is tax-exempt even if disqualified), it makes no sense to apply penalties if they come forward. "Incongruous" might go into a formal memo to a client. But I'm allowed my occasional rant here.

Under Code section 413 and 26 CFR 1.413-2(d), all employers in a multiple employer plan are combined for purposes of section 411. But governmental plans are subject only to the pre-ERISA version of section 411. And section 413 was added with ERISA. Thus, standards for an exclusively governmental multiple employer plan should not require that vesting be combined.

That assumes it is a private 501(c)(3). If it's a public school or university, a 401(k) would be unavailable (unless grandfathered).

Depending on the circumstances and the terms of your cafeteria plan, you may be able to adjudicate the claim manually and, if the claim if for a qualifying expense and was timely submitted, reimburse this employee under the FSA without using the TPA. You and your HR department should speak with counsel as resolving these issues are highly dependent on the facts.

Are you sure that the TPA is an ERISA fiduciary (at least for activities other than claims adjudication)? In my experience in the health plan area, that would rarely be the case. By contrast, the Information Letter you cite is with respect to a trustee of a multiemployer plan who clearly is a fiduciary. Virtually of the ASA agreements I review permit the TPA to delegate certain functions to its affiliates and there is no disclosure of how much of the fees go to the affiliates. That is even the case where the plan sponsor is a multiemployer health and welfare fund.

I suppose in a round about way you could, at least catch-ups that pertain to HCEs(since you could exclude HCEs from the entire safe harbor), but I'm not sure what document language that would imply. If it is a basic match, I'm not even sure if you would reach that point since you are capped at 4% of comp for the match