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The Plan document usually controls the process of a controlled group corporation participating in the plan. You should look at the plan document.

About what would have been the agency’s best or better interpretation of ERISA, people might (and, in comments on the proposed rule, did) disagree. The final rule is clear that a notice of internet availability cannot be on paper. To be codified 29 C.F.R. § 2520.104b-31(d)(4)(i) (“A notice of internet availability must: Be furnished electronically[.]”), 85 Federal Register 31884, 31923 (May 27, 2020). The preamble states the Assistant Secretary’s reasoning: “The Department did not, however, adopt certain commenters’ suggestion that plan administrators should be able to furnish the [notice of internet availability] in paper form. One of the goals in adopting this safe harbor is to advance the use of electronic tools to enhance the effectiveness of, and reduce the costs associated with, ERISA disclosures. The Department maintains that it is important for covered individuals to receive an initial notice, on paper, alerting them that disclosures will be furnished using different procedures. But after that, the safe harbor will create consistency by requiring plan administrators to communicate electronically. As to ensuring the receipt of notices, the rule includes a specific provision in paragraph (f)(4) requiring that action be taken in response to invalid or inoperable electronic addresses. Accordingly, paragraph (d)(4)(i) of the final rule adopts the proposal’s requirement that an NOIA must be furnished electronically to the address referred to in paragraph (b) of the safe harbor.” 85 Federal Register 31884, 31894 (May 27, 2020). The new rule’s preamble, on its first page, describes the 2002 and 2020 safe-harbor rules as not the “exclusive means” of furnishing something. A plan’s administrator might defend other methods as “measures reasonably calculated to ensure actual receipt of the material by plan participants, beneficiaries and other specified individuals.” 29 C.F.R. § 2520.104b-1(b)(1).

If this is an unfunded § 457(b) plan for a select-group employee of a non-governmental non-church tax-exempt organization, the plan likely is governed by ERISA’s title I, but without subtitle B’s part 4 (Fiduciary Responsibility)—ERISA §§ 401-414, 29 U.S.C. §§ 1101-1114. The employer’s unfunded obligation to its employee is as provided by the contract between them. If there is ambiguity in what that contract (including a plan document, if it governs), one construes and interprets the contract according to the common law of contracts. That law includes reasoning for interpreting ambiguous texts. If ERISA governs, it preempts States’ laws. However, if the plan document or contract itself includes a choice-of-law provision, such a provision might have some effect, at least for what interpretation methods a court would use for a dispute about an ambiguous text. As your query observes, for an unfunded plan a bookkeeping account is no more than a measure of the employer’s obligation to pay deferred wages to its employee or former employee. It seems your client’s question is primarily about contract interpretation. I have negotiated both sides of these questions, depending on whether my client was the employer or the employee.

Huh? Each employer already has its own EIN. For a member of the controlled group to adopt the plan, you need an amendment whereby that employer adopts the existing plan. In our SMM we include the information on the adopting employer which does include their EIN. So, what are you actually asking here?

I think IRS will have a hard time saying it doesn't work. 2202(a)(4)(C) of CARES Act defines "eligible retirement plan" to which CRD may be rolled by reference to IRC sec. 402(c)(8)(B), of which 402(c)(8)(B)(i) is an IRA described in 408(a). 408A(a) says a Roth IRA = an IRA except as otherwise provided in 408A (there's a run-around between account and "plan" and 7701(a)(37) is involved, but that's what it amounts to; check it out). 2202(a)(5)(A) says "any amount" required to be included in income on account of a CRD gets the 3-year spread, no distinctions as to whether must be included because not rolled, or because rolled to Roth. Also, take a look at 2202(a)(5)(B), which refers to the old 408A(d)(3) Roth rule when they first allowed conversion without income limits in 2010, although I have to say that one has me a little baffled. Basically, under 408A(d)(3), if you did a Roth conversion in 2010 and were supposed to include the income ratably in 2011 and 2012, but took a distribution from the Roth in 2010 or 2011, you accelerated your tax (i.e., you lost all or part of the 2-year spread, because you did not leave it in the Roth). Why that would matter for a CRD (whether the roll is to a Roth or to another type of plan, if, as seems possible, Congress's reference in CARES intended the 408A(d)(3) rules to be extended to non-Roth IRAs and plans as well) is beyond me, i.e., if you took the CRD, thought you could afford to roll it back, then end up taking it out again because your needed expands with pandemic, I don't see why that should accelerate the tax, even if the roll was initially to a Roth. 408A(d)(3) also has a rule for accelerating if the recipient of a CRD passes away before the last year of the spread, which would make more sense. Perhaps that latter part of 408A(d)(3) is all Congress had in mind. Anyway, it seems hard to believe that Congress would have specifically referenced an old Roth anti-abuse rule in 2202(a)(5)(B), but not intended the 3-year spread generally to apply to CRDs rolled to Roths.

Wait, so she got paid, plus got a 50% QNEC and you're worried that the earnings will be taxes? Have her do an In-plan ROTH conversion if that's the issue.

You can do it, but if the plan is top heavy, the otherwise excludable group will likely have to get a top heavy minimum contribution.

Sounds vaguely familiar... ?