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Hello - I reached out to CMS with the exact same question last week and they confirmed that, YES, they do expect the employer or TPA to attest for the self-insured period (even though the webform does not specifically address a partial reporting period). This was the response: "You are correct - the employer plan sponsor of the group health plan should attest on its own behalf for the pre-fully-insured period of time from 12/27/20-12/31/21. And while you are also correct that the GCPCA webform does not have a specific place to enter the dates covered by the attestation when it is less than the entire period from 12/27/20-12/31/23 (or whatever date in 2023 the GCPCA is submitted), the Departments understand that any given attester may only be attesting for a portion of the time covered by the attestation. Similarly, the attestation may be made by an issuer or TPA for reporting entities that were only a client of the attester for a portion of the attestation period, or may only cover a subset of covered plan benefits or agreements covered by the written agreement with the plan, such as when the attester was not under contract with the entities listed on its reporting template for the entire attestation period (the case here when carrier attests for your client), or when the attester only covered some plan offerings while other entities provided the network for other plan offerings. In any of these cases, other entities may attest for the same plan for the remainder of the time period covered by the attestation, or for other product offerings of the plan, as the case may be. That said, if you client wants to indicate in the "Other" column of the webform the dates covered by its attestation, it may do so. We plan to address this when we update the Instructions in early 2024 as we are getting asked this question a lot. We will also address it during our upcoming GCPCA webinar on September 28." Hope that helps!

Before sorting out whether a creation of a new pension plan might have a minimum participation, coverage, or nondiscrimination issue: Consider suggesting that the former business owner seek, if he hasn’t already done so, his lawyers’, accountants’, tax advisers’, investment managers’, and financial-planning advisers’ advice about whether creating a pension plan fits his interests and the considered integration of the whole of his planning. What to do after an operating business’s sale of its assets often calls for full-picture advice, involving everyone who might advise or handle useful information.

There is no grace period. There are a few thoughts: Try to work with Empower to preserve the next day timing. We have been successful doing this if the conversion manager is knowledgeable and cooperative. It works particularly well if the payroll file is transmitted the day before the payroll date so Empower can run their edits and validations overnight and you can fund the next day. If the conversion manager does not know how to make this happen, complain to the Empower sales executive that made all of those wonderful promises about reaching Nirvana. The auditor does not have the authority to say when a deposit is or is not late. The authority belongs to the IRS/DOL. The auditor can disagree, but the Plan Administrator is signing the Form 5500 and answering the compliance question about late deposits. The client should be able to show they are funding as quickly as they can within the constraints imposed on them by the recordkeeper. If there is a change in recordkeepers and as a result there is a change in the timing of deposits from next day to 2-3 days due to the new recordkeeper's procedures, there likely will be no push-back from the IRS/DOL. If there is, appeal it to the agents manager with a full explanation of the circumstances. If the manager in intransigent, you could even take it to Tim Hauser, the Deputy Assistant Secretary for Program Operations of the Employee Benefits Security Administration (EBSA). He says he wants to hear when the DOL is being unreasonable and his contact information is publicly available. If there is a late deferral as part of the transition process, the world will not end and any financial impact will be minimal. Good luck!

That is the key difference - in these instances you have unrelated employers, so each is viewed separately. With a CG, it's deemed a single employer.

It may be worth asking ERISA counsel before proceeding, but personally I would be comfortable with it assuming you accrue the benefits based on comp and service after the employees were gone. If you can have a conversation with the plan sponsor and explain the potential risk and they are willing to take on that risk then I would be comfortable administering it.

Thanks. We have already reached out to Empower and stressed the importance of preserving the timing of the deposit. My feeling was the auditors may included the "late" payment in the management letter, but not make an issue of it for the 5500. Need to talk our client off the ledge this is not a big deal.

This is the part your client needs to focus on. Whatever payrolls exist from 10/1-12/31, you need to allow the participants to defer from them. So if the payrolls are on the 15th and the end of the month, you've got an extra few weeks to make things work. If the first payroll in October is 10/6, it's a much shorter time frame.

Agree with Zeller why does owner only need a SH? If there are future employees to worry about set it up a regular 401(k) for 2023 and make safe harbor effective for 2024. If they really need safe harbor for 2023 sounds like you have 2 options. Withhold the contributions starting October 1 and deposit as soon as the contract is setup with possible late 401(k) deposits or open a bank account in the name of the Plan to hold the deposits until the they can be transfer to American Funds and allocated to participant accounts.

Why does an owner-only want a safe harbor plan?

First, as always, check the plan document to see if it says what to do regarding incorrect contributions (it may have general instructions as opposed to specific match-related issue). Absent plan instructions, I would forfeit the incorrect excess match and any related earnings, leave in the plan and use according to plan instructions.

Might this speak to your question? “The account balance is increased by the amount of any contributions or forfeitures allocated to the account balance as of dates in the valuation calendar year after the valuation date. For this purpose, contributions that are allocated to the account balance as of dates in the valuation calendar year after the valuation date, but that are not actually made during the valuation calendar year, are permitted to be excluded.” 26 C.F.R. § 1.401(a)(9)-5/Q&A-3(b) (emphasis added) https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR6f8c3724b50e44d/section-1.401(a)(9)-5.