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and here it is (in part):

The Bakers helpfully pointed us to Nevin Adams’ alliteratively titled article on a court’s decision that ForUsAll, Inc. can’t sue the U.S. Labor department about EBSA’s “Compliance Assistance Release” about “cryptocurrencies”. https://www.napa-net.org/news-info/daily-news/401k-crypto-case-crumbles-federal-court; https://www.napa-net.org/sites/napa-net.org/files/ForUsAll%20Inc.%20v.%20U.S.%20Department%20of%20Labor%20et%20al_082923.pdf; https://www.dol.gov/sites/dolgov/files/ebsa/employers-and-advisers/plan-administration-and-compliance/compliance-assistance-releases/2022-01.pdf. Judge Christopher Reid Cooper finds that, even if the Employee Benefits Security Administration acted contrary to law by issuing its nonrule document, ordering the Release to be treated legally as a nothing would not relieve the harm ForUsAll asserts because prospective customers would still face the same risks about investigations and enforcement. Also, the opinion finds that courts do not review a Federal government agency’s nonrule document if it sets no legal right or duty, and no legal consequence flows from the document. The judge found EBSA’s Compliance Release was “informational” and does not compel anyone to do anything. Rather, it suggests fiduciaries “be prepared to explain how [their] actions comport with their duties of prudence and loyalty—whatever those duties are.” The opinion observes that the law is unsettled about what responsibility a plan’s fiduciary might have regarding an account that is not a designated investment alternative.

The answers ultimately distill down to a discussion of what boundaries, if any, exist between co-fiduciaries. In both the PPP and the 3(16) administrator scenarios, the plan sponsor and the service providers are distinct, unrelated entities which suggests that the terms of the service agreement will play a crucial role in resolving the situation. In both scenarios, it is very likely that the employer controls payroll, and payroll will follow the instruction of the employer. Payroll is the entity that will calculate the amount of a deferral that should be funded to the plan. The PPP is the PEP plan sponsor and the PPP trustee or other fiduciary designated by the PPP (thanks SECURE 2.0) is responsible for collecting contributions due to the plan. In this scenario, if the PPP determines that there is an LTPT that should be included and the employer disagrees and refuses to instruct payroll to take the deferral, then the PPP should start the multi-step process to rid the plan of the "bad apple". The 3(16) administrator likely does not possess same level of authority over the plan as the PPP has. The 3(16) administrator could look to the service agreement to see if the administrator was delegated the authority to determine eligibility. If not, the administrator's choices are in that range between resigning or trying to generate enough documentation to try to show they were just following the instructions of the employer. If the administrator was delegated the authority to determine eligibility, then they should have an obligation to pursue getting the employer to respect the delegation of authority to the administrator. If the employer refuses, it sets up a conflict between co-fiduciaries. As always with conflicts between an employer and service provider, it is easier to say what should or could be done versus real-life decisions about business relationships and ethics.

As ERISA § 205(b)(1)(C) provides, an individual-account retirement plan may provide, instead of § 205(a)’s survivor-annuity regime, that on a participant’s death the vested account is distributable to the participant’s surviving spouse. If the plan so provides, the participant’s surviving spouse is the beneficiary, absent a participant’s qualified election with the spouse’s consent. Many individual-account plans provide such a 100% death benefit. Kinds of plans that may avoid the QJSA/QPSA regime include plans that tax law classifies as a profit-sharing plan (including one that includes a § 401(k) arrangement) or as a stock-bonus plan (including one with employee stock ownership provisions). Many of these plans not only lack a QJSA/QPSA but also have no provision for any annuity. Some expressly preclude an annuity. Beyond ERISA’s title I, the Internal Revenue Code sometimes requires a QJSA/QPSA regime as a condition for a desired tax treatment. That applies regarding a plan tax law classifies as a money-purchase plan, including a target-benefit plan. But a § 409(h) part of a benefit under a money-purchase employee stock ownership plan may omit a QJSA/QPSA for that part. Even if neither ERISA § 205 nor anything in the Internal Revenue Code requires the QJSA/QPSA regime, a plan’s governing documents might provide it. As many BenefitsLink neighbors say, Read The Fabulous Document. And if the plan is ERISA-governed, read also ERISA’s title I. Why? Some documents fail to meet ERISA § 205. If a plan’s governing documents lack a QJSA/QPSA regime when ERISA § 205 commands it, a court should interpret the plan as if it states a statute-commanded provision. See Lefkowitz v. Arcadia Trading Co. Ltd. Benefit Pension Plan, 996 F.2d 600, 604 (2d Cir. 1993) (for a defined-benefit pension plan that omitted to provide for a qualified preretirement survivor annuity, the court interpreted the plan as providing a QPSA); Gallagher v. Park West Bank & Trust Co., 921 F. Supp. 867 (D. Mass. 1996) (for an individual-account retirement plan that omitted to state any qualified preretirement survivor annuity or other survivor provision, the court interpreted the plan as providing a 50% QPSA). A governmental plan or a church plan (if the church plan has not elected to be ERISA-governed) often provide differently than either ERISA § 205 regime. For example, many New York governmental plans do not provide a protection for a participant’s surviving spouse. (And New York’s elective-share law results in nothing for a surviving spouse if the participant’s annuity or account is fully paid by the participant’s death.) Some church plans do not permit a participant to elect against a survivor annuity, even with the spouse’s consent.

Rev. Proc. 2015-32 is only for non-Title I plans. Notice 2014-35 covers Title I plans, and does not include similar language.

I think this is where my original conclusion was heading. I was confused because the IRS relief says, essentially, if you follow DFVCP, we will not penalize you. And DFVCP suggests it's still available after receiving an IRS notice, it just isn't clear which notice. I still don't see a clear statement confirming that, once the CP283 notice has been issued, the IRS relief program is no longer available. But it does seem counterintuitive that you would be able to avoid penalties that are already assessed (and not just proposed).

I just watched a recorded webcast where it was said the IRS could (would?) waive excise taxes if self corrected within 180 days. Given you're within that time period (and still the same tax year) I would do that. Worst case, I believe, is a 10% excise tax if corrected timely.

That responsibility is satisfied through these requirements being spelled out in the SPD, which we all know every participant thoroughly reads, understands and remembers - LOL! The legal responsibility is satisfied, but it would be a good employee relations practice to remind such participant of those provisions.

Do you think the participant understands this? (In my observation, an emphatic NO.) If you think the answer is NO, then there may be some administrative responsibility to inform the participant.

The plan-design choice Paul mentions is based on ERISA § 205(f). http://uscode.house.gov/view.xhtml?req=(title:29%20section:1055%20edition:prelim)%20OR%20(granuleid:USC-prelim-title29-section1055)&f=treesort&edition=prelim&num=0&jumpTo=true

Check the plan document, and in particular, check its definition of spouse. Some documents say the couple has to be married for one year before the newly-wedded spouse is recognized by the plan. Some documents are explicit in saying the date of the marriage automatically considers the spouse as the default beneficiary overriding any other existing elections.

See the complaint in the case of Knight v. IBM filed in the US District Court for the Southern District of New York. See also attached a comment by Cohen Milstein. Without going into detail, this class action representing IBM employees alleges that the IBM had been using out of date life expectancy tables that resulted in artificially lower benefit payouts. The Complaint mentioned the fact that ERISA requires a joint and survivor annuity to be the “actuarial equivalent” of the single life annuity. ERISA §§ 205(d)(1)(B), (d)(2)(A)(ii), 29 U.S.C. §§ 1055(d)(1)(B), (d)(2)(A)(ii). Furthermore, that for married participants, the default form of pension payment is a joint and survivor annuity or “JSA.” A joint and survivor annuity provides the participant a payment stream for his own life, and then, if he has a surviving spouse when he dies, for the life of his spouse. ERISA § 205(a)-(d), 29 U.S.C. § 1055(a)-(d). The survivor annuity is expressed as a percentage of the benefit paid during the participant’s life; typically, the surviving spouse will receive 50%, 75%, or 100% of the benefit the participant received. For clarity, a single life annuity is a retirement annuity (a "pension") that is paid to the Participant for the life of the Participant and terminates on the Participant's death. A joint and survivor annuity, (a "Qualified Joint and Survivor Annuity - "QJSA"), is structured so that the share due to the Participant is shared with the Alternate Payee during the concurrent joint lives of the parties, and, on the death of the Participant prior to the death of the Alternate Payee, the survivor annuity benefit will continue to be paid to the Alternate Payee for his/her life. It is important to understand that the survivor annuity is not free. The amount of the retirement annuity will be reduced to pay the cost of the survivor annuity. The amount of the reduction is normally computed by actuaries at the time of retirement who will look at the ages and relative ages or the parties and their life expectancies to determine how much of a reduction in the retirement annuity will be sufficient to pay the survivor annuity following the death of the Participant. [Some plans, like FERS and CSRS, use a flat percentage deduction from the retirement annuity to fund the survivor annuity. Actuaries are not involved.] so.... The point is that both a single life annuity and a QJSA annuity are funded by the same pile of dollars reduced to present value. The Plan puts a certain amount of dollars in a theoretical fund and that amount can be used to pay either a single life annuity or a joint and survivor annuity. They are payment options from the same source of funding. If there is no survivor annuity election then the Participant will receive $X as a retirement annuity and the marital portion of that retirement annuity can be allocated between the Participant and the Alternate Payee as agreed or as directed by the trial court using a QDRO. If a survivor annuity for the Alternate Payee is intended, then the Participant will receive a retirement annuity of $x less the cost of the survivor annuity, and the marital portion of this reduced retirement annuity can be allocated between the Participant and the Alternate Payee as agreed or as directed by the trial court using a QDRO. If the Participant predeceases the Alternate Payee, the Alternate Payee will receive a survivor annuity equal to the option elected - 25%, 33%, 50%, 66%, 75% or 100% of the amount of the retirement annuity. Not all plans offer 25%, 33%, or 66%. All plans must offer 50% and can offer more. Note that the greater the percentage of the survivor annuity the greater the reduction in the retirement annuity to fund the survivor annuity. So there is no free lunch. Some planning is possible here. For example, if the Participant is old and or in bad health and the Alternate Payee is substantially younger and in good health, it may make sense to elect a 100% joint and survivor annuity. If the opposite is true, than a 50% or less survivor annuity may make more sense. The ultimate point is that the actuarial equivalence cannot be determined until the parties have elected or the court has awarded a QJSA in the amount of 33%, 50%, 66%, 75% or 100%. At that point the retirement annuity is reduced to pay the cost of the QJSA and you will have your actuarial equivalence. It can be any combination of retirement annuity + QJSA = the same present value = actuarial equivalence. Chris says that the Plan designates 50% as the QJSA, but that's not the Plan's choice, The Court or the parties have the option for 50% or 75% or 100%. In all cases the equivalence will be the same. Percentage of QJSA up = retirement annuity down. It's not for the Plan to designate only one option if they offer multiple options. David Knight v. IBM Attorney Comment.pdf Knight v. IBM - Complaint.pdf

Been a few years but my understanding was: no optional form of payment may be less valuable than the accrued benefit defined in the plan, and the QJSA may not be less valuable than any other available option. These comparisons are based on 417(e) assumptions if the optional form, such as lump sum, is subject to 417(e), but otherwise is based on "reasonable" assumptions -- with no explicit guidance as to what is reasonable. If that's still right then, in your situation, it should be ok if the 100% JSA is less valuable than the 50% JSA (the QJSA), so long as, under reasonable assumptions it is not less valuable than the accrued benefit stated in the plan -- typically, the amount payable as a SLA.

I have several plans with AFPP and don't get a participant count from them; I get it out of Relius. You will need someone who is proficient with Excel so you can get the right data into Relius. From there you will be able to get a census with the correct information.

Unfortunately I can't help with Plan Premier, but I perhaps have a different suggestion? A pivot table in excel, done by someone who has some data scrubbing experience, with some rules thrown in about which dates to use if there is more than one (min, max etc) might get a single coherent census, in a couple of hours. I'm also surprised Relius don't have conditional importing of data points as an option. Something like, import rehire date unless the date in system is older. Or the ability to import and combine for things like compensation, as opposed to overwrite.

All our 8955s are FIREd. I'm going with "completely wacky".