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This IRS website page (blah blah blah not official guidance disclaimer dot dot dot) confirms it: https://www.irs.gov/retirement-plans/deadline-extended-to-add-new-in-plan-roth-rollover-provisions

But if you had in the plan, allowed an owner or HCE to take advantage of, and then amended out - you might have a discrimination issue, especially if the provision was not in the plan for a while, or was amended out before NHCEs became fully vested and were able to utilize.

No. 1.401(k)-2(a)(5)(vi)

If the bonus is just reinstating pre-pandemic pay level after cut, I would argue it is base pay. If everyone got the same 5%, probably also argue it's base pay and within employer's administrative authority to interpret plan as saying base pay. Since the year is not over, you could adopt a discretionary amendment on or before 12/31/2021 if you are unsure.

Under the "facts" you've provided, there is no correct answer. You'll need to go back to the attorneys.

Don't think so.

Do the participant's circumstances support a hardship or unforeseeable-emergency distribution (whichever, if either, the plan provides)?

Yes!

It's not a requirement, it's a "deemed to satisfy" thing. I wouldn't hesitate to amend and do a new notice; I mean good grief, a notice should not entitle someone who is not in the plan yet to anything.

If SEP is on IRS model document Form 5305-SEP, that precludes the sponsor from having another plan. If SEP document is on a pre-approved volume submitter/prototype document then you can have another plan. The SEP is treated as a DC plan. If more than 6% of compensation has already been funded for 2021 then you have a combined plan deduction limit of 31% of compensation, which likely severely limits the DB deduction - unless they can somehow finagle a return of 2021 SEP contributions.

The IRA shouldn't issue a 1099-R for that as it is a return of an ineligible contribution. The Plan will issue 2 1099's--one for the rollover and one for the excess. The IRA shouldn't be involved in the 1099s at all. However, everyone must pay attention in this. The plan will just be issuing the refund 1099-R for the excess and earnings gained (or lost) whilst in the plan. (Maybe) the IRA custodian issues a 1099-R for the gains on the refund? Or do the tell the plan and the plan will issue the refund 1099-R including plan and IRA earnings? I do not like the latter, becasue then 1099-R's don't match up to distributions from the account. And if there is a loss at the IRA, they need to tell the plan so it can issue the correct 1099-R? Again, you have a problem with the 1099's not matching distributions. Can you even do a negative 1099?

I happen to have some more experience dealing with full-time life insurance salespersons who are classified as statutory employees. In weighing the factors for classifying workers as employees versus independent contractors, full-time life insurance salespersons who are statutory employees must satisfy many of the factors leaning toward independent contractor status, except that the service contract contemplates that substantially all of such services are to be performed personally by the contract for such insurance company and such individual does not have a substantial investment in facilities used in the performance of such services. As expected, Peter has accurately quoted the relevant sections of the Code subjecting such individuals to FICA and permitting such workers to be covered as an employee under certain employee benefit plans. Basically, such an individual is a hybrid between a common law employee and an independent contractor with respect to the entity hiring him or her. I am also in agreement with Peter's conclusoin that such individuals do not need to be covered under a plan

if your concern is that the plan no longer exist, just have the employee roll it into an IRA and once the new plan is established, s/he can roll it into the new plan if they want to.

Internal Revenue Code of 1986 (26 U.S.C.) § 7701(a)(20) provides: “For the purpose of applying the provisions of section 79 with respect to group-term life insurance purchased for employees, for the purpose of applying the provisions of sections 104, 105, and 106 with respect to accident and health insurance or accident and health plans, and for the purpose of applying the provisions of subtitle A [income taxes] with respect to contributions to or under a stock bonus, pension, profit-sharing, or annuity plan, and with respect to distributions under such a plan, or by a trust forming part of such a plan, and for purposes of applying section 125 with respect to cafeteria plans, the term ‘employee’ shall include a full-time life insurance salesman who is considered an employee for the purpose of chapter 21 [FICA].” For FICA taxes, “a full-time life insurance salesman” is treated as if she were an employee. IRC § 3121(d)(3)(B). Following this, a service recipient is not precluded from including its nonemployee full-time life insurance salespersons from the service recipient’s IRC § 401(a) retirement plan. The Internal Revenue Manual recognizes this. IRM 4.23.5.7.4.1 (11-22-2017) https://www.irs.gov/irm/part4/irm_04-023-005r#idm139946602957840. For plan design, you might test whether excluding such a deemed employee from a plan’s nonelective contribution, matching contribution, or elective-deferral contribution would cause the plan to fail to meet one or more coverage or nondiscrimination conditions. In my experience, excluding them might not tax-disqualify a plan because life insurance salespersons tend to be highly-compensated employees.

If it is eligible for rollover then yes you need a Special Tax Notice. So things like annuity payments, hardship distribution, RMD then no. Otherwise for most distributions I can think of, yes. I may be missing some special cases.

The RMD is still part of his account balance when he dies, therefore it is payable to his beneficiaries. It is not eligible for rollover as it is still an RMD.

Agree. The fact that it is an RMD is irrelevant as far as who gets it. It goes to the beneficiary, however that is determined.

Issue two (2) Form 1099-R. One for the for the excess deferral, and one for the rollover. For example if total Rollover was $100,000 and Excess was $5,000 issue a 1099-R for $95,000 as rollover and another 1099-R as $5,000 excess deferral. Notify the participant that $X.xx ($5,000 in my example) was not eligible for rollover due to excess deferral over 402(g) limit and that he must remove the excess plus any earning from his IRA or it will be subject to penalties each year it remains in the IRA. 6% excess tax IIRC but you can double check that. I believe he must remove it by the due date of his tax return with extensions to avoid the penalty, again you can double check on that. Alternatively you can try to recover the excess from the IRA and then process as excess deferral from the Plan. I think this is the method the IRS would prefer as it's cleaner but is often much harder to accomplish with the participant and IRA custodian.

Did she have a named beneficiary or beneficiaries? If not, what does the plan language have for a hierarchy of beneficiaries if no one is named? IMHO, you have to follow through that process.

If the person's below the covered comp level, it's the lesser of 1) original EBAR times 2, or 2) original EBAR plus the disparity factor from a big table based on the plan's NRA and the individual's SSRA. If the person's above the covered comp level, it's the lesser of 1) annual accrual / (comp - (50% times covered comp)), or 2) (annual accrual + (disparity factor x covered comp))/ compensation

1.401(a)(4)-7(c)(2) and (3)

As Lou mentioned, it's facts and circumstances if you miss the 12/1 date. But if you can document that a meeting was held, that helps. If you just started the plan, I think that would help. If you had been doing a match, but it's now a SH match, I think that would help. And the further into January that the first paycheck is cut helps as well.

From the IRS Website https://www.irs.gov/retirement-plans/notice-requirement-for-a-safe-harbor-401k-or-401m-plan General Rule: Generally, the safe harbor notice must be provided within a reasonable period before the beginning of the plan year. The timing requirement is deemed to be satisfied if the notice is provided at least 30 days (and not more than 90 days) before the beginning of each plan year. If the notice is not provided within this time frame, whether the notice is timely depends upon all of the relevant facts and circumstances. If you can document the shorter period is reasonable you would be OK. It could be subject to challenge so the more you could document the steps taken to insure that all participants received the notice and had an effective opportunity to change their deferral elections prior to the next year's first payroll the more likely you will be deemed to have distributed in reasonable time frame before the start of the year. And yes that might be easier to do in a small company than a large one.

3) the participant can die.