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The § 72(t)(2)(A)(v) exception from a too-early tax applies to a distribution “made to [the participant] after separation from service after attainment of age 55[.]” http://uscode.house.gov/view.xhtml?req=(title:26 section:72 edition:prelim) OR (granuleid:USC-prelim-title26-section72)&f=treesort&edition=prelim&num=0&jumpTo=true The IRS recognizes a practical tolerance about the age-55 condition: “A distribution to [a participant] from a qualified plan will be treated as within section 72(t)(2)(A)(v) if (i) it is made after the [participant] has separated from service for the employer maintaining the plan and (ii) such separation from service occurred during or after the calendar year in which the employee attained age 55.” IRS, Employee Plans-Miscellaneous Tax Reform Changes, Notice 1987-13, 1987-1 C.B. 432, at § D, Q&A-20. But the tolerance about the age-55 condition does not change the separation-from-service condition. This is not advice to anyone.

Plan X is not part of the Required Aggregation Group if it is not aggregated with the other plans to satisfy coverage or nondiscrimination. "Required Aggregation Group" means (a) each qualified plan of the Employer in which at least one Key Employee participates or participated at any time during the Plan Year containing the Determination Date or any of the four preceding Plan Years (regardless of whether the Plan has terminated), and (b) any other qualified plan of the Employer which enables a plan described in (a) to meet the requirements of Code sections 401(a)(4) or 410. Note you could permissively aggregate X with the other plans to make the group not top-heavy, if that is a possibility, but then you must satisfy both coverage and nondiscrimination within that group. "Permissive Aggregation Group" means the Required Aggregation Group of plans, plus any other plan or plans of the Employer which, when considered as a group with the Required Aggregation Group, would continue to satisfy the requirements of Code sections 401(a)(4) and 410.

Even if the trust agreement allows each trustee to act distinctly: If the plan is ERISA-governed, consider: ERISA § 405(b) about cotrustess; ERISA § 405(c) about allocations of responsibilities between and among fiduciaries; ERISA § 405(d) about investment managers; ERISA § 405(a) about a fiduciary’s responsibility regarding another fiduciary’s breach. ERISA § 405, 29 U.S.C. § 1105 http://uscode.house.gov/view.xhtml?req=(title:29 section:1105 edition:prelim) OR (granuleid:USC-prelim-title29-section1105)&f=treesort&edition=prelim&num=0&jumpTo=true If the plan is not ERISA-governed, consider responsibilities of cotrustees and other fiduciary relations under each State’s law that governs the trust or an agreement. This is not advice to anyone.

The roles might not be fully laid out in the plan document so also look to see if there is a separate trust agreement that may provide additional information. Peter's answer doesn't necessarily directly respond to the OP's question but provides great information when addressing the question as to whether one would want to be a co-trustee of an ERISA-governed trust (especially where their responsibilities and duties are not clearly delineated).

You may want to point them to this law suit where the Department of Labor stepped in to recover the Davis-Bacon contributions: https://www.planadviser.com/government-contractor-accused-of-missing-401k-payments/ If anyone were to bring your client's situation to the attention of the DOL, the DOL very likely would intervene. (Note that the suit later was dropped by the DOL after the past due contributions plus earnings were paid.)

And when one reads all plan and trust documents, be on the lookout for provisions that might be invalid, or that might not have the effect a reader might discern from an isolated reading. “[A] provision in an agreement or instrument which purports to relieve a fiduciary from responsibility or liability for any responsibility, obligation, or duty under this part [ERISA §§ 401-414] shall be void as against public policy.” ERISA § 410(a), 29 U.S.C. § 1110(a). An ERISA-governed plan’s trustee cannot escape an ERISA-provided responsibility, including a § 405(a) responsibility regarding a cotrustee’s, administrator’s, or other fiduciary’s breach.

Fixed 425% of first 6 works, but discretionary it doesn't get ACP pass (or t-h exemption). What I'm getting from the first post is they have a discretionary match and SF either match or NE almost no one but the owner deferred and they are looking for a cheap way to max the owner without giving any more to EEs.

I agree with Lou S that if that's a discretionary match formula it would not meet the SH rules. I guess I just want to confirm though that the "425% of the first 6% of compensation deferred" is not the fixed match formula in a triple stack.

(a) AND (b) both. You say (a) is not met. So that plan, plan X, is not required to provide top-heavy in that plan, unless Plan X is used to help any other plans pass coverage or nondiscrimination. Thus, if plan X covers only a nonkey HCE, you are golden. Plan X is not used to help the other plans pass coverage or nondiscrimination.

A true partnership profits interest generally must be granted in connection with the performance of services to or for the benefit of the partnership, at least to fit within the IRS's safe harbor. You could grant a partnership interest that looks and acts like a profits interest to a non-service provider, but they wouldn't have the benefit of the safe harbor that most profits interests are structured to comply with. Generally, I see appreciation rights to non-service providers (i.e., lenders, investors, etc.) in the form of warrants.

The section of your plan document addressing the trustees' roles should address how multiple trustees can act. In my experience, many plans will allow either one to act on their own, but that's not universal.

How was it a mistake of fact (I am very conservative when if comes to MOF). i see this as an EPCRS issue. But I can envision a problem with the payroll system if they try to 'adjust' the amount of deferrals on the W2 (12 D or 12 AA) when the YTD report would show differently. Also, I would not trust if we did do the MOF, the payroll run would be correct. Remember, there were at least SOME taxes withheld before the deferrals. So, if they ran the extra amount through payroll, they would have to omit the taxes previously taken. And who gets the earnings? The company? I cannot see that is right. Participant? If so, how do they get them? From the plan in a separate transaction? From the company? if the latter, then gross income for the affected employees would be higher than their actual earnings from the company, inflating what the company would have to pay in payroll taxes and remit on the W3.

While @Peter Gulia reasonably posits/considers that maintaining/collecting any gender information for a DC plan database may be superficial and/or unnecessary, I suggest it may be explained by inertia: the gender data element is merely one of many items that were collected from the beginning of time. It is important to collect gender ID is a defined benefit plan database if that database is used for actuarial valuations and/or determining actuarial equivalency in optional forms of annuity benefit. Consider a payroll/HR data collection: is it important for an employer to have a gender ID? From a payroll perspective, maybe not; but that data collection was (and is) often used for other purposes, including passing data to providers of medical or life or disability insurance. Hence, it is just one of many data elements of what many consider a "complete" database. I have also seen such data be one of many clues when there is question about someone's identity. Also, before the days of same-sex marriage, it might be a "flag" to question whether data supplied by a vendor (or plan sponsor) contains errors. For example, suppose the data supplied contains a gender code of M for everyone, but is for a hospital known to have about 60%-80% female population; that anomaly should make you question not only the legitimacy of that data element but also ask about other data validity. Don't laugh, I've seen it.

From the standpoint of what a recordkeeper needs to know about a participant's gender for the recordkeeper to provide plan accounting services, they do not need to know. From the standpoint of interacting with the participant in delivering notices, sending out plan-related correspondence, emailing or having conversations with a participant, acknowledging the participant's gender identity helps build a rapport with the participant. Gender identity goes beyond the use of pronouns and includes things like Mr., Mrs., Miss, Ms. or Mx. as titles or honorifics typically intended to show respect for the individual.

Section IRC § 401(k)(14)(C)(w)(t)(f), provides that you will be removed from you home at night and placed on an airplane that will take you to a prison in El Salvador without due process where you will be incarcerated for the rest of your life. So your best course of action to protect yourself is to interrogate the prospective lying SOS in the customary way before permitting the hardship distribution. https://www.meisterdrucke.uk/kunstwerke/1260px/English%20School%20-%20Cuthbert%20Simpson%20also%20Symson%20Simson%20or%20Symion%20tortured%20on%20th%20-%20%28MeisterDrucke-673723%29.jpg