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The new CFO can get an Individual Taxpayer Identification Number (ITIN). This is a 9 digit number starting with 9, so having an ITIN will not be a problem with your systems. Here are some references that get into the details on how the CFO can do this: https://www.irs.gov/individuals/international-taxpayers/taxpayer-identification-numbers-tin https://www.usa.gov/itin https://www.irs.gov/taxtopics/tc857 If the CFO is going to live full time in the US, then they will be a resident alien. If not, then there are rules to consider how to determine if the CFO is a nonresident alien. This may be an issue if nonresident aliens are excluded by classification from participating in the plan. Getting an ITIN generally is not a difficult process, but going through it for the first time will mean learning a lot about something you may never need to use again.

Earned income for retirement plan purposes must be for personal services performed. The sale of a business would generally be capital gains.

It's allowed and is very common. See Section 409(o) of the Internal Revenue Code.

Yeah I think that would be a problem in the sense that it would expose the employer to B Penalty liability, but the question this is whether that's really a "problem". The B Penalty would be $371.67/month (2024), which is lower than the $400 contribution anyway. So the employer comes out ahead in that a) some employees in this type of leave situation probably won't trigger the B Penalty, and b) for those who do, the company pays less than the cost of the health plan to be affordable. Your follow-up question is a good one that I'm not aware of any clear answer. I think if they were trying to avoid the B Penalty (again, not a major concern anyway) they would probably need to continue the $400 contribution. But I take your point that they weren't in the plan option that's designed to meet the affordability safe harbor in the first place, so there's an argument no contribution should be required.

A Prime Rate is the interest rate a commercial bank will give for its customers with the lowest credit risk. Banks use the Federal Discount Rate as the basis for setting the prime rate for the bank's customers. The Federal Discount Rate is the interest rate the Federal Reserve charges banks for short term loans. The Federal Discount Rate is the same for all banks, but the incremental points added by a bank to determine its prime rate can vary. This is why different sources can show different prime rates. Further, changes in bank prime rates typically are made based on a bank's procedures for how and when to change rates. This can lead to differences in the timing of changes. A plan's document or loan policy should specify the source used to determine the interest. Regulations include saying the plan should set plan loan rates based on commercial bank rates available in the geographic area in which the plan is located. Most plans use a "prime rate plus" formula for simplicity (although the IRS has commented that prime plus 1% is too low, but there does not seem to have been any enforcement to back up the comment). @R. Scott there is not Federal web site involved, and it does seem the WSJ is the most common source, although this is not univesal. As @justanotheradmin notes, some recordkeepers update loan interest rates once a month even though almost all changes in the FDR and hence prime rates occur on a different date. Take care to confirm that the plan document or loan policy is consistent with the process the recordkeeper is using. Most TPAs do check the loan interest rate for a loan. A participant may submit an application for a loan for approval and the plan's loan interest rate could have changed during the loan initiation process. This may lead to sorting out which interest is applicable to the loan.

Nice! (1) Is the organization eligible to have a non-ERISA Plan (government; church)? Plan 2 can't be a 457(b) plan -- your description says it is funded. (2) Nonprofits often have strange ideas and use strange terminology. Is it possible that Plan 2 is not a separate plan, but just a separate set of accounts to hold the "excess" deferrals but labeled and talked about as a separate plan?

EACAs and QACAs have different features. Section 101 of SECURE 2.0 says the plan needs to be an EACA (to allow employee to withdraw any contributions and earnings made shortly after being auto-enrolled.) A QACA does not have this withdrawal provision, but it does have the safe harbor match. To answer the question, a non-grandfathered plan must be an EACA and can be both a QACA and an EACA. A standalone QACA without an EACA is not permitted.

Ms Lisa, you're wasting your time unless you get a lawyer. Find one in your area (nearest big city) that is familiar with ERISA QDROs.

There is no problem with filing a Form 5558 and then not filing the Form 5500 if the form turns out to not be required.

You first need to know whether or nor the Plan is governed by the Federal law, ERISA, and if he retired during the marriage or after the divorce. So you first job is to tell us the exact name of the Plan, or you can look it up yourself at https://www.efast.dol.gov/5500Search/ where all ERISA qualified plans must file a form 5500 every year. You can search by plan name or by the plan sponsor. The Plan might be governed by another Federal law (such as FERS or CSRS or the Military or the Foreign Service) or by a State, County, City or Municipal plan, and in some plans the election of a survivor annuity for a former spouse does not survive the divorce and must be crated or reinstated by a QDRO style document. QDRO stands for Qualified Domestic Relations Order and only apply to ERISA qualified plans. Other plans use other name such as Eligible Domestic Relations Order, Domestic Relations Order, Retirement Benefit Order, etc. The failure of the lawyer who represented the former spouse in this case might be sued for malpractice and incompetence for not following up and making sure the QDRO was entered by the Court and approved by the Plan Administrator. The good news you are looking for is that it is in fact an ERISA plan that would be subject to the Pension Protection Act of 2006 that permits the entry of a QDRO post mortem. The bad news this that if the Participant remarried and then retired his new spouse would be entitled to the survivor annuity and not the former spouse. See for example, Hopkins v. AT&T Global Information Solutions, 105 F.3d 153 (1997) at http://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9 followed by the 5th Circuit in 1999 Rivers v. Central and South West Corporation, 186 F.3d 681 (United States Court of Appeals, 5th Cir. 1999) at- http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9 and a number of other cases. If you want to send me a copy of the Marital Settlement Agreement and the Judgment of Divorce and the exact name of the Plan I might be able to figure out you situation find a lawyer in your state that would be able to help. My email is marylandmediator@gmail.com.

I realize taxation is a separate issue. So is is cash vs non-cash per the parentheticals in the regulation. But I would still limit this exclusion to one of the fringe benefits listed in 15-B. Of course we have no guidance from the IRS on the issue. (3) Safe harbor alternative definition.Under the safe harbor alternative definition in this paragraph (c)(3), compensation is compensation as defined in paragraph (c)(2) of this section, reduced by all of the following items (even if includible in gross income): reimbursements or other expense allowances, fringe benefits(cash and noncash), moving expenses, deferred compensation, and welfare benefits.

Great point, Peter. I think you're right that those ADA rules can be read to apply only to the employee. Under that interpretation, the main consideration would turn to the HIPAA/ACA nondiscrimination rules. Assuming this is a "participatory" wellness arrangement (i.e., does not require the individual to satisfy a standard related to a health factor), the only HIPAA/ACA nondiscrim requirement is that the program be available to "similarly situated individuals" regardless of health status. We don't have the 30% limit or reasonable alternative standard rules that apply to health-contingent (activity-only and outcome-based) programs to worry about. Those regs say that "relationship to the participant" (e.g., spouse, child) can be a separate category of similarly situated individuals from the employee or other types of dependents. So in this case, they could argue that the spouse category is a separate group of similarly situated individuals with a permissible condition to enroll in the health plan based on the participatory wellness program requirement that they complete the annual physical. All of that is probably aggressive and would need to be viewed as a potential litigation risk, but I can at least see now how the theoretical pieces would fit together after considering Peter's response. Here's what I would look to if trying to justify that approach-- 29 CFR §2590.702: (d) Similarly situated individuals. The requirements of this section apply only within a group of individuals who are treated as similarly situated individuals. A plan or issuer may treat participants as a group of similarly situated individuals separate from beneficiaries. In addition, participants may be treated as two or more distinct groups of similarly situated individuals and beneficiaries may be treated as two or more distinct groups of similarly situated individuals in accordance with the rules of this paragraph (d). Moreover, if individuals have a choice of two or more benefit packages, individuals choosing one benefit package may be treated as one or more groups of similarly situated individuals distinct from individuals choosing another benefit package. ... (2) Beneficiaries. (i) Subject to paragraph (d)(3) of this section, a plan or issuer may treat beneficiaries as two or more distinct groups of similarly situated individuals if the distinction between or among the groups of beneficiaries is based on any of the following factors: (A) A bona fide employment-based classification of the participant through whom the beneficiary is receiving coverage; (B) Relationship to the participant (for example, as a spouse or as a dependent child); (C) Marital status; (D) With respect to children of a participant, age or student status; or (E) Any other factor if the factor is not a health factor. (ii) Paragraph (d)(2)(i) of this section does not prevent more favorable treatment of individuals with adverse health factors in accordance with paragraph (g) of this section. ... (f) Nondiscriminatory wellness programs — in general. A wellness program is a program of health promotion or disease prevention. Paragraphs (b)(2)(ii) and (c)(3) of this section provide exceptions to the general prohibitions against discrimination based on a health factor for plan provisions that vary benefits (including cost-sharing mechanisms) or the premium or contribution for similarly situated individuals in connection with a wellness program that satisfies the requirements of this paragraph (f). (1) Definitions. The definitions in this paragraph (f)(1) govern in applying the provisions of this paragraph (f). ... (ii) Participatory wellness programs. If none of the conditions for obtaining a reward under a wellness program is based on an individual satisfying a standard that is related to a health factor (or if a wellness program does not provide a reward), the wellness program is a participatory wellness program. Examples of participatory wellness programs are: (A) A program that reimburses employees for all or part of the cost for membership in a fitness center. (B) A diagnostic testing program that provides a reward for participation in that program and does not base any part of the reward on outcomes. (C) A program that encourages preventive care through the waiver of the copayment or deductible requirement under a group health plan for the costs of, for example, prenatal care or well-baby visits. (Note that, with respect to non-grandfathered plans, §2590.715-2713 of this part requires benefits for certain preventive health services without the imposition of cost sharing.) (D) A program that reimburses employees for the costs of participating, or that otherwise provides a reward for participating, in a smoking cessation program without regard to whether the employee quits smoking. (E) A program that provides a reward to employees for attending a monthly, no-cost health education seminar. (F) A program that provides a reward to employees who complete a health risk assessment regarding current health status, without any further action (educational or otherwise) required by the employee with regard to the health issues identified as part of the assessment. (See also §2590.702-1 for rules prohibiting collection of genetic information.) ... (2) Requirement for participatory wellness programs. A participatory wellness program, as described in paragraph (f)(1)(ii) of this section, does not violate the provisions of this section only if participation in the program is made available to all similarly situated individuals, regardless of health status.

Brian Gilmore, thank you for giving so generously to our learning. Even if one accepts the executive agency’s rule as a reasoned interpretation of Congress’s statute: 29 C.F.R. § 1630.14 has 30 uses of the word employee, but no use of spouse, dependent, beneficiary, or participant. If one reads only the text of this rule, there might be some ambiguities about whether an employee-benefit plan’s condition regarding a medical examination of an employee’s spouse is, in particular circumstances, “a subterfuge for violating the [equal-employment provisions of the Americans with Disabilities Act] or other laws prohibiting employment discrimination[.]” 29 C.F.R. § 1630.14(d)(1) https://www.ecfr.gov/current/title-29/part-1630/section-1630.14#p-1630.14(d)(1). Further, ERISA, the Public Health Service Act, the Internal Revenue Code, the Affordable Care Act, and other Federal and (not superseded) State laws might affect the plan sponsor’s choices. These and other laws might matter in how an employer and plan sponsor thinks about questions of the kind Bcompliance2003 describes. It’s complex enough that one would want information and advice from a team of employment, employee-benefits, and other lawyers.

I'd limit it to the categories listed in Publication 15-B. I think the explanation in de minimis benefits is helpful. This is also referenced in Notice 2024-2 (financial incentives for participation. Imagine the taxes that could be avoided if paid vacation were a non-taxable fringe benefit or if all pay for an employee could be made in the form of gift cards. De Minimis (Minimal) Benefits You can exclude the value of a de minimis benefit you provide to an employee from the employee's wages. A de minimis benefit is any property or service you provide to an employee that has so little value (taking into account how frequently you provide similar benefits to your employees) that accounting for it would be unreasonable or administratively impracticable. Cash and cash equivalent fringe benefits (for example, gift certificates, gift cards, and the use of a charge card or credit card), no matter how little, are never excludable as a de minimis benefit. However, meal money and local transportation fare, if provided on an occasional basis and because of overtime work, may be excluded, as discussed later.

I think you'd have a hard time justifying anything that is paid to the employee in cash for services as a fringe benefit. If you try to exclude anything that is not part of regular wages then that takes you down the rabbit hole of things like overtime, shift differentials, bonuses, etc. Cash-like items such as gift cards is probably as far as I would push that envelope. If you're willing to test rather than lump in with all safe harbor exclusions then you can pick and choose what to exclude. When I think of fringe benefits it's non-cash items like car usage, gym or country club membership, etc.

What they all said (especially the lawyer part) and you may still have the ability to get a domestic relations order for a marital share/survivor benefit.

At a minimum, the ADA side of the (sprawling) wellness program rules aren't going to permit that approach. The ADA rules require that any incentives involving medical examinations be "voluntary." That means there can't be any requirement to participate or denial of coverage for non-participation. Those rules are a bit murky because the regs were pulled and not replaced, but this is a pretty obvious one that doesn't really need to get into the weeds. 29 CFR §1630.14: (d) Other acceptable examinations and inquiries. A covered entity may conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an employee health program available to employees at the work site. (1) Employee health program. An employee health program, including any disability-related inquiries or medical examinations that are part of such program, must be reasonably designed to promote health or prevent disease. A program satisfies this standard if it has a reasonable chance of improving the health of, or preventing disease in, participating employees, and it is not overly burdensome, is not a subterfuge for violating the ADA or other laws prohibiting employment discrimination, and is not highly suspect in the method chosen to promote health or prevent disease. A program consisting of a measurement, test, screening, or collection of health-related information without providing results, follow-up information, or advice designed to improve the health of participating employees is not reasonably designed to promote health or prevent disease, unless the collected information actually is used to design a program that addresses at least a subset of the conditions identified. A program also is not reasonably designed if it exists mainly to shift costs from the covered entity to targeted employees based on their health or simply to give an employer information to estimate future health care costs. Whether an employee health program is reasonably designed to promote health or prevent disease is evaluated in light of all the relevant facts and circumstances. (2) Voluntary. An employee health program that includes disability-related inquiries or medical examinations (including disability-related inquiries or medical examinations that are part of a health risk assessment) is voluntary as long as a covered entity: (i) Does not require employees to participate; (ii) Does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation, or limit the extent of benefits (except as allowed under paragraph (d)(3) of this section) for employees who do not participate; (iii) Does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of Section 503 of the ADA, codified at 42 U.S.C. 12203; and (iv) Provides employees with a notice that: (A) Is written so that the employee from whom medical information is being obtained is reasonably likely to understand it; (B) Describes the type of medical information that will be obtained and the specific purposes for which the medical information will be used; and (C) Describes the restrictions on the disclosure of the employee's medical information, the employer representatives or other parties with whom the information will be shared, and the methods that the covered entity will use to ensure that medical information is not improperly disclosed (including whether it complies with the measures set forth in the HIPAA regulations codified at 45 CFR parts 160 and 164). Slide summary: 2024 Newfront Wellness Program Guide

Also, because she mentioned he worked for a "fire department", it is very possible that he made employee contributions. To the OP's question, "How can they just keep his pension funds?", they can't, if you are referring to money he contributed towards the cost of his pension. Those will need to be paid to someone. As David said, You need a lawyer who is very familiar with QDROs., but I would add that having one who is also familiar with the plan involved is also important, if you can find one.

The answer is "yes." There is no requirement (anywhere) that the parties "agree" tot he terms of any order, including a DRO. The reason many do, in fact, acknowledge agreement by signing the order before the judge is because it makes it easy for the judge to issue the order. Absent agreement, there may have to be a hearing, or other arguments, as to what the order should contain. If both parties agree - then the judge presumes the order is consistent with the divorce decree/separation agreement.

QDROphile always provides good advice. However, I read the original post to imply that the "previous employer" was NOT a government entity, in which case the ERISA provisions about QDRO's will apply. The last sentence of the first paragraph "...no QDRO was completed" might imply a different problem: is the lack of a QDRO because no one ever got around to it? or because such property division was not included in the divorce document(s)? (If not included in original property division, the court may be reluctant to re-open the issue.) or something else? The answer to all of the above must start with: You need a lawyer who is very familiar with QDROs.

Your message suggests that your former spouse worked for a government entity. If so, the pension arrangements are probably not subject to ERISA and the common knowledge that goes with the body of law under ERISA. The plan terms, which may be statutory, will determine survivorship rights. You will not be able to get your answers based on general knowledge and expertise, only specific attention to your situation and the related plan. It is possible that the employer was not a governmental entity, but a nonprofit organization instead, and ERISA may apply.