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I think 414(c)-5 does cover this situation, Purplemandinga. A for-profit organization that controls at least 80% of the nonprofit's board is an "any other organization" for purposes of Treas. reg. 1.414(c)-5(b).

I am asking not debating when I ask this. is this plan terminated? There is a resolution to terminate but in order for a plan to be fully terminated you have to have a resolution and all the assets have to be gone. My first reaction is you can't file a final 5500 because this plan still has assets in the form of a contribution receivable. You have to resolve this issue and then you can say the plan is terminated. Happy to be told otherwise but that is my first reaction.

I was willing to afford you the benefit of the doubt and assume that you were not as big a schmuck as you appeared to be from reading your responses to my messages. But I was wrong. I wonder why the moderator of this message board has not removed you given your rude and unprofessional conduct. I am the founder and moderator of a listserv with over 1,460 family law attorneys here in Maryland. Nobody in the 8 years of our existence has ever posted the sort of offensive attacks you have made on me....someone you don't even know. Why would you be a member of this message board if your goal is not to help people who ask for assistance? To insult them? You are sorely lacking in people skills, a basic smart ass.

<<YAWN>> You have told your stories before. Look up my prior responses to your drivel. <<plonk>>

Ignoring the fact that they may not have the cash to fund it (because that's a whole different can of worms), they can still fund the 2017 safe harbor with lost earnings and then re-distribute those funds to the employees. At this point, I would say the employer should eat the cost of those distributions since it is past the due date.

You want to talk to an ERISA attorney that knows the VCP process well. I have seen a number of times where if you can show the intent was all along to exclude bonuses and show that was how it was communicated to the employees all the time the IRS will allow a retroactive amendment. i am not saying it is 100% and VCP filings aren't cheap so you need to look at the choices but I have seen the IRS sign off on it. I would see if you know an attorney that has gotten this done to review the facts.

Does the plan also have safe harbor? Match or nonelective? Discretionary match? Additional profit sharing? Does the bonus amount get included/excluded for different purposes? In other words, is this strictly a deferral problem, or are there also missed employer contributions for 15 years? The problem could get larger than it seems at first glance. You might consider seeking ERISA counsel on this - it is possible, depending on the amount of money involved, the recommendation might be to ignore the issue and just correct moving forward. I'm making no recommendation, just tossing that out there for consideration.

Operational failure. After reviewing the document and the amounts involved, if it’s really 15 years, negotiating a solution under VCP would probably be the recommendation.

If there is no mechanism to change the settlement (which I don't really believe, but I'm humouring you) then a DRO that is prepared consistent with that settlement can't be submitted to the Plan Administrator until it becomes approvable. That will happen as soon as the P applies for benefits or, if earlier, when the AP is age 65. At that point, the plan administrator has nothing to object to. Wait for then and submit the DRO at that point. Or get the settlement changed. Only choices I see.