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I would respectfully disagree. See the following PROHIBITED change, copied from IRS Notice 2016-16. 3. A mid-year change to the type of safe harbor plan, for example, a change from a traditional § 401(k) safe harbor plan to a QACA § 401(k) safe harbor plan. You can't change the TYPE of safe harbor plan mid-year, even though certain formula changes can be made.

Agree with you that EZ instructions do not seem to support prior TPA's position. Being a C-corp with multiple owners seems to kick it out. Instructions say an S-corp 2%+ shareholder is considered a partner in a partnership. If that applied to C-corp as well then the instructions would have stated such.

I got the following from the EFAST2 FAQ... Q4: How can I submit a delinquent or amended filing? The Form 5500 Series Version Selection Tool will help you determine which version of the Form 5500,5500-SF, or 5500-EZ you should use. Refer to the form-specific instructions for more information on filing requirements. An amended filing should be submitted as a complete replacement of the previously-submitted filing. You will need to resubmit the entire form, with all required schedules and attachments, through EFAST2. You cannot submit just the parts of the filing that are being amended. <underlined is me>

You'll probably need to check the definitions/thresholds in the specific state statute creating the program, which can be tied to things like the number of employees reported to the state's employment agencies, etc.

If it's not eligible to file 5500-EZ then they are probably looking at one or more years of delinquent returns.

It would - at worst you could do the amendment to suspend the match on one day and then adopt the 4% non-elective the next day - but can you really do that? Notice 2020-86 Q&A-8 says you can suspend a plan's safe harbor nonelective contributions during the year, later readopt the 4% nonelective, and still retain the safe harbor. It doesn't say anything about suspending a match and being eligible for this treatment. Given that the IRS chose to specify nonelective in this Q&A - combined with the section of 2016-16 that Belgarath referenced - it seems that you can not get this treatment with a safe harbor match.

An election to apply the top paid group would not effect top heavy as it does not change who a key employee is but HCEs are 5% owners and employees who made more than the IRS limit in the prior year. With the TPG election (which would be in the document or an amendment to existing document) you limit HCEs to top 20% of employees who made more than the IRS limit in the prior year so you could potentially change your group of HCEs from 11 employees to as few a 3. Vesting does have any impact in testing but if the plan is new or on going and is top heavy you need a schedule that statisfies top heavy. If a plan consists of only deferral, safe harbor contributions and matching contributions that meets the condition listed in the code then the plan is deemed not top heavy. Once you have and employee contributions that are in addition to those, even $1 then you lose the top heavy exemption. But it's rare that the 3% non elective doesn't fulfill the top heavy minimum. Typically it would be if there are non-key HCEs who are excluded from the 3% non elective but the employer decides to make an additional employer contribution.

I could be wrong but I'm guessing the 2% PS is to make gateway because of the required 3% non-elective. In which case just make the contribution, credit earnings from when the original deposit was made to when this one is made, and deduct the contribution in the current year.

Is the plan top heavy, failing ADP testing, or both? Does making an election to use the top-paid group improve your testing results? You can change a vesting schedule but there are some complex rules to follow and you can't cut anyone's vested percentage below what they have already accrued. Amending in a 3% safe harbor non elective (on or before November 30 for calendar year plan) will let you pass the ADP testing and most likely top heavy too though there are some exceptions. You'll still need to pass ACP testing on the match this year but for next year if your match meets the requirements listed in the code and you timely distribute a safe harbor notice to employees (30 days before the start of the year) you are deemed to pass ACP well. Are you the admin, the sponsor, or a participant?

And you can also get those developments delivered to your inbox, every weekday.

After the first wave of Schlicter lawsuits in late 2006, the January 2007 paper I wrote for, and presented at, Pension & Investments February 11, 2007 Defined Contribution Conference reported on 12 cases. In the first few years of the emerging trend, some law firms kept notes on these and similar ERISA fiduciary-breach cases. But as Lois Baker mentions, growing numbers of cases made publication impractical, even for Groom. Some law firms and insurance intermediaries estimate about 100 new cases each year in recent years and 2022. The list you wish for might report on about 300 cases, and pulling it together would be expensive work. To follow ERISA fiduciary-breach complaints, judges’ opinions, and settlements, a simple way is to scan BenefitsLink’s News page. Employee Benefits: News, Regs, Analysis, Laws, Surveys and Policy (benefitslink.com) It reliably gets you important developments.

Plan generates the 1099 for the 10k distribution - shows the 20% withholding - since it was not a direct rollover. Just a distribution to the plan. You do not report it as a rollover, 'cause it wasn't.

It's not a "rollover from itself". It's a rollover from a qualified plan. I doubt there is a 1099 question. The Plan prepares the 1099 based on the distribution (eg, direct rollover? cash? combination? based on death/disability?, etc). The Plan never cares what the recipient does with the money afterward. The plan (probably) does not prepare a 1099 to reflect the rollover, but it likely provides the participant with some documentation that it received the rollover; this provides the participant with documentation where the money is as well as compliance with the 60-day rule. Anticipating your next question, if the distribution is $10K consisting of $8K cash + $2K tax withholding, the participant may make a rollover of anything up to $10K. The Plan does not care what financial bucket that money comes from, but the Plan will normally want proof that the rollover does not exceed the total distribution.

If you are dealing with an ERISA qualified plan - and we don't know that for sure, a participant's beneficiary in a qualified retirement plan that is subject to the qualified joint and survivor annuity (QJSA) requirements under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code) is automatically his surviving spouse, unless the spouse has waived his rights or another exception applies. For plans that are not subject to the QJSA requirements, beneficiary designations are generally a matter of plan design. Under ERISA you can have a beneficiary of a defined contribution plan as well. In general, if you should die before you receive your benefits, your surviving spouse will automatically receive them. If you wish to select a different beneficiary, your spouse must receive notice and/or consent to someone else being named as beneficiary. A beneficiary can also be the person who will receive life insurance proceeds upon the death of the insured party, whether it's an employer sponsored play or not. Most state laws do not permit a judge to direct that one party carry life insurance for the benefit of the other party, so you will not see QDRO requiring a former spouse to be named as a beneficiary of life insurance. The impact of a divorce (or of a limited divorce, or divorce a mensa et thoro) will depend on the terms of the Marital Settlement Agreement ("MSA") if any, and whether or not the MSA is incorporated into the Judgment of Absolute Divorce ("JAD"), or the terms of the JAD if there is no MSA, or the terms of any QDRO or DRO or EDRO or COAP, or similar Court Order, and whether a certified copy of the Court Order was sent to and approved by the Plan Administrator, or whether or not the Plan Administrator had actual notice of the terms of the MSA or the JAD or of the as yet unsubmitted and/or unapproved QDRO. And State, County and Municipal plans, and Union and Church Plans, and International Plans and not bound by ERISA and do things their own way. A beneficiary does not always relate to death. A plaintiff has standing to bring a claim under ERISA if he/she is a plan participant, beneficiary, or fiduciary. Caples v. U.S. Foodservice, Inc., 444 F. App'x 49, 52 (5th Cir. 2011) (citing 29 U.S.C. § 1132(a)); Cobb, 461 F.3d at 634; Coleman v. Champion Int'l Corp., 992 F.2d 530, 533 (5th Cir. 1993). A "participant" under ERISA is an "employee or former employee" of an employer offering an employee benefit plan. 29 U.S.C. § 1002(7). A "fiduciary" is someone who (1) exercises "discretionary authority . . . respecting management of such plan or . . . disposition of its assets," (2) "renders investment advice for . . . compensation . . . with respect to any moneys or other property of such plan," or (3) "has any discretionary authority or . . . responsibility in the administration of such plan," Id. § 1002(21)(A). A "beneficiary" is defined as "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." Id. § 1002(8). In order to qualify as a beneficiary, an individual must have "a reasonable or colorable claim to benefits." Crawford v. Roane, 53 F.3d 750, 754 (6th Cir. 1995); see also Cobb, 461 F.3d at 635-36 (holding that to have standing as a beneficiary under ERISA, a plaintiff must show both that he or she was designated as such by the participant or terms of the plan, and that he or she has a colorable entitlement to benefits under the plan)." So a beneficiary can be a person who receives a benefit at the time designated by a QDRO or at the death of the Participant. There are about 175,000 pension and retirement plans in the USA, 163,000 of which are governed by ERISA. See attached somewhat dated list. One thing is certain - the lack of uniformity. The suggest that the original question told you everything you needed to know is quite simply incorrect. You cannot ignore the implications of Kari E. Kennedy, Executrix v. Plan Administrator for Dupont Savings and Investment Plan, 129 S.Ct. 865, 555 U.S. 285 (2009), and its progeny including Andochick v. Byrd, 709 F.3d 296 (2013). Nor can you ignore the responsibilities of the Plan administrator to investigate set forth in DoL EBSA Advisory Opinion 1999 -13A and 1992 - 17A - see attached. All problems cannot be answered by "a close reading of the Plan Documents". There are almost always legal implications. The practice of law requires the ability of the lawyer to ask what, where, why, when, which, who, how, and how much, and to get all of the facts before giving advice. If the purpose of this blog is not to give well reasoned advice, I am in the wrong place. DSG 337474398_QualifiedPlanList.xlsx Advisory Opinion 1992-17A.pdf Advisory Opinion 1999-13A _ U.S. Department of Labor.pdf

Primary beneficiary of WHAT??? What type of Plan? Under what law? ERISA, US Military? FERS or CSRS? FSPS? State? County? Municipal? Union? Church? 401(k) or other defined contribution Plan? Defined benefit Plan? Life insurance Plan? Health Savings Account? Is the Participant alive or dead? Was a QDRO prepared? Entered by the Court? Qualified by the Plan Administrator? If not, is there a reason a QDRO cannot be prepared? If the Participant is dead, if there a reason that a post-mortem QDRO cannot entered pursuant to the Pension Protection Act of 2006. In your second post you used the term "QDRO" so I assume it's an ERISA qualified plan. Am I correct? In divorce cases we call the former spouse the "Alternate Payee". Is there a reason you haven't used that term? How can any of you respond to a question that contains virtually no information upon which you can base your response?