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Otherwise, can we all acknowledge that Keogh's sunset in 1984 (TEFRA '82), were laid to rest in 2000 (IRS Publication 560), and officially expired in 2002 (EGTRRA '01)? This is in some ways worse than the "Solo-401(k)" naming convention.

Yes, sorry, I was questioning myself after I sent - it was so long ago that I even forgot the (ir)relevant Code Section. At least I didn't go Corporal Klinger and say Section 8! (Yeah, I know, a lot of you youngsters are asking who's Corporal Klinger?) Answer for curious minds, and this is based on the memory of 60-year-old so cut me some slack, Section 89 was essentially the 401(a)(4) version of regulations for health and welfare plans, it came out well in advance of its effective date, and it had employers and practitioners spending boatloads of time preparing and determining how to test if plans were compliant or how they could make them compliant - but was ultimately repealed either just before or after it was to take effect, rewarding all the procrastinators who decided to be reactive rather than proactive. I was an underling at the time but will let you guess which side of the Section 89 fence we were on!

Without stating any conclusion or point of view, here’s another mode for analysis: Even if you consider the possibility that the plan’s administrator furnished proper notices to everyone eligible and not one did not opt out, the facts you describe suggest circumstances in which a prudent fiduciary might not close its eyes to the obvious, and, absent the other fiduciary’s written assurance of facts that would show no breach, might further investigate the facts. The investment adviser should want its lawyer’s advice about how to evaluate the situation to consider what to do next. With your lawyer’s advice, consider: Of the TPA and the investment adviser, is one of those companies or operations a fiduciary? If the services are provided by one company, would the law treat one operation’s knowledge as the company’s knowledge? Or if the services are provided by companies that are commonly controlled (and perhaps have some workers or executives in common), might the law impute one company’s knowledge to another? Even if the governing documents and their ERISA §§ 402-405 allocations make clear that a fiduciary has no direct responsibility for collecting contributions, every fiduciary has co-fiduciary responsibility. Even if a fiduciary does nothing to enable another fiduciary’s breach, knowledge imposes a responsibility: ERISA § 405 [29 U.S.C. § 1105] Liability for breach of co-fiduciary (a) Circumstances giving rise to liability In addition to any liability which he may have under any other provisions of this part {ERISA §§ 401-414}, a fiduciary with respect to a plan shall be liable for a breach of fiduciary responsibility of another fiduciary with respect to the same plan in the following circumstances: (3) if he has knowledge of a breach by such other fiduciary, unless he makes reasonable efforts under the circumstances to remedy the breach. Mere resignation is, at least in the Labor department’s view, not enough effort to remedy another fiduciary’s breach. Further, a fiduciary’s resignation (without other steps) might be imprudent, especially if the resignation would increase a breaching fiduciary’s control or make it likelier that no one calls attention to the breach. One unpublished trial-court decision included a finding of fact, without analysis, that a fiduciary made reasonable efforts to remedy another fiduciary’s breach by promptly filing a Federal court proceeding against the breaching fiduciaries. In the range between those points, there is no published Federal court decision that interprets in meaningful detail what steps are enough to prove an observing fiduciary used “reasonable efforts” to remedy another fiduciary’s breach. Is informing the Labor department enough? (If there is a co-fiduciary responsibility, doing nothing is not enough.) If there was a theft and it becomes detected, a plaintiff might pursue everyone that has collectible assets. Yet, many service providers dislike blowing the whistle on a client or customer. So, even if there is a co-fiduciary responsibility, the TPA and investment adviser might want their lawyer’s evaluation of the size of potential liability exposure and how probable or improbable it is that the adviser will become liable.

What I'm saying is that you see the problem as the fact that they gave the rank and file person a regular allocation, as if s/he worked 1000 hours. But if they didn't, then the fix would be to in fact give that person a regular allocation. So the problem isn't the allocation, it is the lack of an amendment. They got to the right place. I'm not sure I would be going back to 2018 looking for problems in the first place, and having found it, not sure I would do anything other than point out that the allocation was ok but there should have been an amendment to justify it. And then I'd ask if they wanted to spend $$ to fix it. 2020 as originally posted is a bigger problem.

Do you mean Section 89? Lots of people bet a lot of time and money on that.

1984, so I came in as most of TEFRA became effective (right? passed in 82, effective in 84), have all the legal alphabet soup under my belt, except of course for ERISA. Over the years, the one thing I noticed was the increasing creativity of the law acronyms, starting with COBRA, but certainly with CARES, SECURE and now EARN, RISE and SHINE - someone gets paid good money to think these up! Finally, an old timer's trivia question - who remembers Section 83, what is was and what ultimately happened to it. Clue - maybe the biggest time waster for employee benefits professionals in the last 40 years.

Yes, happens all the time.

Sadly I started my pension career in '83, back in the day when we used "PENTABS" for anyone who remembers that system from Santa Barbara CA. Back when there were no message boards... no internet to research and ask questions, just the CCH books with their tracing paper pages (hated pulling out pages and adding replacements when rules/laws changed). I know the answers... it's just reassuring when I ask you fine people and your responses confirm what I already knew. So... cheers to you all! 🍺 To stay on topic... yes Bird... it's all about moving the assets. I told the new financial advisor to use the EIN on file for a seamless move. I'll take a look at that link. Appreciate it.

I always assumed @K-t-F meant "Keogh to Four 0 1 k" 😁

Allow some older practitioners their nostalgia!

No problem at all from my viewpoint. Many documents (Relius, for example) you would just specify the effective dates of those changes in the Appendix. So you restate 1/1/2022, with one or more provisions in the restated document not taking effective until 8/1/2022, as noted in the Appendix.

and it would already be included in box 1 taxable so no add back required

Ha, this is the "common" difference between W-2 wages and "wages for withholding purposes" under 3401, since that amount is typically not part of the 3401 definition. A quick peek over at the EOB indicates the amount is typically included in 415 compensation, if not explicitly excluded separately. But the prime consideration would be your plan's definition of Compensation.