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In short, yes, the non-U.S. compensation is part of 415 compensation.

Your question intrigued me and I went down a rabbit hole. I'm not sure if this is still accurate but an article on Benefits Link from 2002 (man this place has been a great resource for a long time) came up https://benefitslink.com/articles/tarpley020313.html It seems to hinge on §402(h) and §404(h). I don't know if those sections have been updated since 2002, I honestly can't tell from the current code sections and I haven't dug into the regulations. But that appears to be where the 25% cap is coming from. Both the 5305A-SEP (Rev June 2006) the latest version I've been able to find and the FAQs on the IRS website both reference the overall 25% limit. https://www.irs.gov/retirement-plans/retirement-plans-faqs-regarding-sarseps Honestly I thought they mirrored the qualified plan rules in many ways and "assumed" the 100% 415 limit and 25% employer limit were applicable but it appears at least at one point, and possibly still that the limit is 25% of pay limited for each employee and included both employer and employee contributions. It seems a kind of nutty result but not much nuttier than ending SARSEPs in 1996 but grandfathering existing ones. Personally I haven't come across one in quite some time but maybe this will get you where you need to be and can figure out if it's been updated since that article.

see IRS Reg 1.415(c)-2(g)(5)

Outrage??? Nay, nay, this is hilarious; they have just handed you the greatest marketing tool ever, evidence of their own incompetence!! 1) This firm's EIN is public record and all over any 5500 filing that had to report their fees; feel free to reach out to those Plan Sponsors to sell your own more knowledgeable services!! 2) Are they an insurance company? If so their marketing materials have to pass strict truth/factual metrics; you should report this issue to their home state insurance commission, and your clients state commission, if different! 3) Laugh with your clients; share the good news with them that they've retained you, who knows better than many of your competitors, competitors who were brazen enough to put their own incompetence in writing! BTW, what provider is this so we can all protect any mutual clients we may have with them?

I know the company you're talking about. I work for a TPA firm and we have had clients receive the same emails targeting the same 5500 information. It is definitely a shady business practice and your outrage is justified. Employing this kind of fear tactic would be - I believe - an ethics violation for those of us with ASPPA credentials (I would think NIPA as well) so it's disappointing to see such a large, "reputable" company take this route.

Strictly speaking, a retroactive amendment to cure a 401(a)(26) failure is a 1.401(a)(26)-7(c) amendment - however most of the same rules apply as under 1.401(a)(4)-11(g). So no - you can't do a -7(c) amendment to increase only an HCE, because the amendment has to be nondiscriminatory on its own, under the -11(g) rules. If there are no NHCEs that could be added to the plan (including possibly someone who has not yet satisfied age and service requirements), then your options are: 1. VCP (if they even approve it) 2. Retro amendment that increases the one HCE, plus enough NHCEs to satisfy coverage and nondiscrimination on its own All of this is assuming of course that the plan says a 401(a)(26) failure will be corrected by amendment. If the plan document has a fail-safe in place, then you have to apply the fail-safe.

Right, we just had a couple of these and my research turned up a BL post from last year saying exactly that. Interesting - I guess the first return has beginning assets.

No. There is a requirement under Title I of ERISA to file the 5500, but that only applies to plans which are subject to Title I. Plans which cover only the 100% owner of a business, or partners in a partnership, are exempt from Title I. The reason the 5500-EZ exists is for those plans to provide a report to the IRS, since the DOL reporting requirements don't apply. For the most part, a plan which can file 5500-EZ is the same thing as a plan which is exempt from Title I. That line has become a little blurred recently, but there is coordination between the IRS and the DOL here. A plan administrator is only required to file either the 5500-EZ or the 5500(-SF) for any given year.

The standard ERISA disclosure rules provide that ERISA-required documents must be provided to participants in a manner that’s “reasonably calculated to ensure actual receipt” by the intended recipient. The DOL has a safe harbor under which plans will be deemed to meet this standard. This method is sometimes misunderstood as a requirement—it is not. It is merely the only guaranteed way to satisfy ERISA’s disclosure requirements by electronic media. The safe harbor generally requires either (a) the employee has work-related computer access that is integral to his or her job duties (i.e., employee works at a desk with a computer), or (b) the employee’s electronic affirmative consent to electronic disclosure. There are no specific penalties for failure to properly distribute these documents (unless there is a written request for the document, in which case the penalty is $110/day if the employer does not provide the document within 30 days of the request). However, the employer may not be able to enforce the written terms of the plan in a claim for benefits lawsuit if the plan documentation was not properly disclosed. There are many unfortunate cases where courts have come to this conclusion. Summary: If all of the company’s employees have work-related computer access that is integral to their job duties, it is clear that no authorization is required to distribute ERISA documents electronically. If there are employees who don’t meet this standard, the safer approach is to meet the DOL’s safe harbor by receiving their affirmative consent to electronic disclosure of ERISA documents. Here's a quick slide summary: Newfront Office Hours Webinar: ERISA for Employers

I would go ahead and price the COBRA and offer those other services - if it is as expensive and complicated as it appears to be, no one is actually going to elect the COBRA. Carve these services out of the general medical plan (as you have apparently done) and let former employees choose, or not, the coverage. If that is untenable, as you note, the rules are pretty old and there is no enforcement activity around them. Since the services seem to be for testing and the like, failure to offer them is likely to be a small risk. The larger risk is the penalty for not offering COBRA at all.

You could argue that might constitute a material modification if it changes how employees interact with claims processing or something else practical from a participant perspective. But even if it does, you don't need a stand-alone SMM to address it. For one, most OE materials are designed as an SMM for all changes taking effect for the upcoming plan year. If this is taking effect at the start of the new plan year, that information could just be included with those OE materials. Also, I assume this isn't going to result in a change to the SBC or a material reduction in covered health services. So there wouldn't be any urgency to the disclosure. Here's some template language I usually recommend including with OE materials to also address the SMM requirements for the upcoming plan year changes: This document serves as a Summary of Material Modifications (“SMM”) to the [ENTER PLAN NAME LISTED IN WRAP PLAN DOC/SPD AND FORM 5500] (“Plan”). This SMM summarizes changes to the Plan that are effective as of [DATE]. You should review this information carefully and share it with your covered dependents. Keep this information with your Summary Plan Description (“SPD”) for future reference. In the event of a conflict between the official Plan Document and this SMM, the SPD, or any other communication related to the Plan, the official Plan Document will govern.

If the participant's balance can support the combined amount of the new loan created by the refinance, plus the balance of the loan being refinanced, you can start a new 5 year term for the new loan. Here is a good article: http://employeebenefitplanaudit.belfint.com/participant-loan-refinancing/

Please let's not confuse getting paid with being employed. If the kids are not really employed, and did not work there, then they are not eligible for the Plan. I see this all the time with even babies on the payroll. "it appears that they let their two children work part-time". Is that an assumption, or a fact?

On the "no participation" make sure they aren't named as officers in the other company and don't have any signature authority.

1. Do they have a minor child? 2. Is it a community property state? 3. The spousal attribution exception from the IRS: EXCEPTION: No attribution between spouses if there is no: • direct ownership, • participation in company, and • no more than 50% of business gross income is passive investments. See 1.414(c)-4(b)(5)(ii).

If, for a plan’s cash-or-deferred arrangement, the plan does not provide an automatic-contribution arrangement, doesn’t the absence of a participant’s affirmative election to defer mean she elects “cash” compensation (that is, no § 401(k) elective deferral)? See 26 C.F.R. § 1.401(k)-1(a)(3)(ii) (explaining that the absence of an affirmative election has a default consequence), https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR6f8c3724b50e44d/section-1.401(k)-1#p-1.401(k)-1(a)(3)(ii). However, the plan’s administrator might evaluate whether an employee received the plan’s governing document, a summary plan description, or some other notice of her opportunity to elect for or against § 401(k) elective deferrals. If an employee is or was a minor, an administrator might evaluate whether notice to the minor’s natural guardian or conservator (a parent) is or was notice to the minor. That a plan’s administrator might have breached a fiduciary responsibility by failing to deliver a summary plan description does not by itself mean the plan or its cash-or-deferred arrangement fails to tax-qualify under Internal Revenue Code § 401(a)-(k).

Having completed deferral paperwork is ideal. But it's really not required. The daughters likely said, "mummy/daddy, please don't take more money out of my pay!" and that's the end of it. Are they going to testify otherwise?

I will say, if you've got just the owner and two children, you don't really have nondiscrimination/coverage to worry about. Ha, what's the worse sin - backdating the document or backdating "I'm not interested" election forms from those kids who still want to share in the inheritance some day? 😈

My only thought is to agree with your policy position. But I don't see how you avoid COBRA obligations given it's outside the first-aid exception. From a policy standpoint, there should be an exception for where the services provided at the on-site clinic are required for employees by law. We have an ERISA exemption for disability plans required by state law (i.e., statutory state disability requirements) under ERISA §4(b)(3) that could be extended in the same way: (b) The provisions of this title shall not apply to any employee benefit plan if— (1) such plan is a governmental plan (as defined in section 3(32); (2) such plan is a church plan (as defined in section 3(33) with respect to which no election has been made under section 410(d) of the Internal Revenue Code of 1986; (3) such plan is maintained solely for the purpose of complying with applicable workmen's compensation laws or unemployment compensation or disability insurance laws; (4) such plan is maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens; or (5) such plan is an excess benefit plan (as defined in section 3(36) and is unfunded.

Neither. It's a failure to follow the terms of the document (unless the excess is catch-up eligible in which case you are fine).

If this is a new separate plan that started for the employer after leaving the PEO and are truly/technically over 100 participants at start of the year (check and verify under terms of the plan and 5500 instructions) then I think the 80-120 rule doesn't apply. That rule is for existing plans that flip flop over and under 100 participants.