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Sort of... You can file DFVCP as long as you have not received a DOL notice of intent to assess a penalty. You are still eligible for DFVCP if you receive an IRS penalty assessment. For the IRS late filer penalty relief program (for EZ filers), you are no longer eligible if you receive the IRS penalty assessment.

The Plan Administrator must pay the money in the account the children pursuant to its own rules saying that the money goes to the children. Kari E. Kennedy, Executrix v. Plan Administrator for Dupont Savings and Investment Plan, 129 S.Ct. 865, 555 U.S. 285 (2009). But read Andochick v. Byrd, 709 F.3d 296 (2013) dealing with post-distribution recovery by an intended beneficiary. However, under the Pension Protection Act of 2006 it is possible for the former spouse to return to the state court and seek a posthumous QDRO awarding the PSP proceed to her. But a promise in an Agreement to name your former spouse as the beneficiary in not the equivalent to a transfer of retirement benefits to the former spouse that is enforceable under ERISA by use of a QDRO, so I have my doubts that the QDRO is an appropriate remedy. A QDRO would effectively change the nature of the language of the Agreement. BUT the children were never the intended beneficiaries of the account at any time. The former spouse was the intended beneficiary and since she cannot sue the Plan, she would have to sue her children as unintended beneficiaries under Andochick. Perhaps she needs to sue her attorney for malpractice. A very thorough explanation of this entire issue is set forth at Hennig v. DIDYK, Tex: Court of Appeals, 5th Dist., No. 05-13-00656-CV, (2014) - https://law.justia.com/cases/texas/fifth-court-of-appeals/2014/05-13-00656-cv.html And the Plan Administrator should do nothing, or at the very most file an interpleader action and ask the court what to do with the money, and let the court figure it out. David

Nope, that's what I would do.

That is an incorrect interpretation. As discussed, deferrals become catch-ups after a limit (402(g), plan imposed, or ADP test restricted) is reached, not simply by election. By "people" do you mean participants or service providers? The latter group should know better. The SPD wording means (if drafted by a knowledgeable person, or platform) that you are eligible for catch-up deferrals if you attain age 50 at any time during the year, not simply after reaching age 50. Whether I turn 50 on 1/1/2022 or 12/31/2022 I can defer $27,000 in total in 2022, and do so all in Q1 if able or spread throughout the year. The SPD could possibly be worded with more clarity, but the administrative system providers (payroll and RK) should know how to do this properly.

No. Attaining age 50 in the calendar year (or already age 50+) makes an individual catch up eligible. However, a contribution is not recharacterized as a catch up until a limit is exceeded (e.g., 402g, plan imposed limit). In this case it would appear the "catch up" election should be matched until it actually becomes a catch up.

Pooled non-calendar year profit sharing plans are often valued annually on the last day of the plan year. The 401(a)(9) regs address this. You take the balance on the valuation date, add in in contributions from the valuation date to 12/31, subtract distributions from the valuation date to 12/31 and that is your adjusted 12/31 balance for figuring out next year's RMD.

And if the plan was first in existence no earlier than January 1 of the 10th calendar year preceding the year in which the application is filed, you may be exempt from paying a user fee if you meet the eligible employer requirements under Exemption From User Fee in the instructions to the Form 8717.

Actually, IMHO, this is optional. The older regulations (from whatever years, I can't remember off the top of my head - maybe late 80's and early 2000's) required that these amounts be included. But now see 1.401(a)(9)-5, Q&A 3(b). Possible that your plan language will specify, but most of them probably just refer to the regs, or actually use that specific language from the Q&A referenced above. I don't know whether there's a lot of consistency on which method is used.

https://www.irs.gov/forms-pubs/additional-guidance-for-substitute-and-telephonic-submissions-of-forms-w-4p-and-w-4r Whoever told you that "the IRS didn't rule on implementing" might have meant that the IRS hasn't provided any rules for implementing a simplified substitute form, like we were used to with the old W-4P. The rules for using a substitute form now are so onerous that it is basically impossible. The new forms W-4R and W-4P (or suitable substitutes) must be used starting in 2023, unless the IRS comes out with some guidance before then.

Assuming an ERISA-governed plan, this seems an illustration of another situation in which the plan’s administrator is not responsible for the participant’s failure (but might, practically, be burdened by it). David Rigby and CuseFan suggest one recognize that, even after the divorce and after the participant’s death, a court might issue a domestic-relations order. See 29 C.F.R. § 2530.206(c)(2) https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XXV/subchapter-D/part-2530/subpart-C/section-2530.206. In responding to claims (if any), a plan’s administrator should be punctilious in following ERISA § 503’s and the plan’s claims procedures.

If not, the ex-spouse should put the plan on notice and get one in the works asap.

Is there a DRO that purports to be a QDRO?

Going back to the original post, the age 50 ($6,500) catchup can only go into the 457(b) plan if the sponsor is a governmental entity..

That is correct!

The confusion has to do with 2 different provisions in the law. First, you have 401(a)(31)(B) which requires that "mandatory distributions" be rolled over to an IRA if the participant makes no election and the amount exceeds $1,000. IRS Notice 2005-5 provides that for this purpose, a "mandatory distribution" is one that is forced out under the cash-out rules and made prior to the later of age 62 or NRA (Q&A 2 is below). This is what's reflected in the 402(f) notice. You then have Regulation 1.411(a)-11 which provides that participant consent is required where a distribution is "immediately distributable," which is prior to later of NRA or age 62. Relevant portion of the regulation is below. The $5K cash-out provision is an exception to this rule. So, mesh those together and what you end up with is that after NRA/age 62, you can force out a distribution regardless of the amount. But there is no requirement to rollover the amount to an IRA if a participant makes no election. That means it's up to the plan terms (or arguably plan procedures) on what happens if no election is made - this is no different than with respect to amounts below $1K where the auto rollover isn't mandatory, but many plans do the rollover because it avoids uncashed checks. So, you first see if the plan forces cash-outs at NRA/age 62, and if so, and no participant election is made, does the plan or plan procedures provide for automatic rollover into an IRA or does the plan cut a check and hope it gets cashed. From Notice 2005-05. Q-2. What is a mandatory distribution? A-2. A mandatory distribution is a distribution that is made without the participant’s consent and that is made to a participant before the participant attains the later of age 62 or normal retirement age. A distribution to a surviving spouse or alternate payee is not a mandatory distribution for purposes of the automatic rollover requirements of § 401(a)(31)(B). Although § 411(a)(11) generally prohibits mandatory distributions of accrued benefits attributable to employer contributions with a present value exceeding $5,000, the automatic rollover provisions of § 401(a)(31)(B) apply without regard to the amount of the distribution as long as the amount exceeds $1,000. From 1.411(a)-11: (4) Immediately distributable. Participant consent is required for any distribution while it is immediately distributable, i.e., prior to the later of the time a participant has attained normal retirement age (as defined in section 411(a)(8)) or age 62. Once a distribution is no longer immediately distributable, a plan may distribute the benefit in the form of a QJSA in the case of a benefit subject to section 417 or in the normal form in other cases without consent.

A similar effect can be had using a § 403(b) plan and a § 457(b) plan. For example, a public-school employee who is 50 might instruct salary-reduction deferrals of $30,000 [2023] under each plan, for a combination of $60,000. Many public-school employers provide both § 403(b) and § 457(b) plans, allowing two deferrals from one paycheck.

I saw this recently... proposal for 5558 electronic filing <highlights are mine> [edit: I just saw Lou S. reply] 2022-21584.pdf

That is my understanding as well.