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I thought everyone who worked at least 3 years making more than a certain amount had to be covered - not the 410(b) rules. Also, if on the 5305 model cannot have another non-SEP plan, so isn't that also an issue?

Sorry Peter, I didn't even see your response as I just saw and responded to the follow-up quote/question to me or I would have just referenced your more eloquent explanation of the issue. Thank you.

Thanks, Artie. That's helpful. I had always read that provision as allowing for re-deferral or imposition of new vesting conditions by the buyer, but a second look may cover earnout payments that are sufficiently contingent (e.g., an earnout based on post-closing financial performance, but not necessarily a deferred portion of the purchase price not subject to a SROF). Appreciate it.

ASG, of course. But maybe they should get a legal opinion just to make sure. Maybe they know a law firm that employs an ERISA counsel. Happens a lot, surprisingly, although anecdotally I see it more with medical professions.

Before too hastily assuming that the plan was administered other than according to the written plan’s provisions, consider looking carefully to find all possibly relevant writings and evaluating whether some writings amended what otherwise would be “the” plan documents. Although ERISA calls for a plan to be written, it need not be one fully integrated exclusive writing. And nothing in ERISA commands that an amendment be made with the same formality as the writing the amendment would change. Several courts’ decisions observe that a written plan might comprise several formal and informal writings. Many plans do not restrict what kind of writing amends a plan. (One would read, carefully, the documents governing the plan to confirm the absence of a restriction that would make a less-formal writing insufficient to amend the plan.) For example, a written agreement with a default IRA provider might state that the plan provides an involuntary distribution of a balance that’s no more than $5,000 (or the applicable limit on an involuntary distribution before the participant’s normal retirement age). Such an agreement might have been signed, ratified, or otherwise adopted by a person who or that had authority to amend the plan. Likewise, communications to participants might have stated the cash-out provision, and might have been signed, ratified, or otherwise adopted by a person who or that had authority to amend the plan. A signature can be using on or in a writing a person’s name, including a corporation’s or other organization’s name, with an intent to adopt the writing. Under Federal law, an electronic signature can be as simple as sending an email with the sender’s intent to adopt the text the email delivers. A plan sponsor might want its lawyers’ reading and advice about whether the sponsor amended the plan to change the involuntary-distribution threshold, and (if the sponsor did) when the amendment took effect. This is not advice to anyone.

No you can't establish a SIMPE-IRA if you maintain another qualified plan. I'm not 100% certain but i think that is maintain at anytime during the year so even if they terminate the SH Match plan, I don't think they can start a Simple-IRA until 2026 but it's possible I'm wrong on that. SIMPLE-IRAs aren't something I deal with much. The "best" way to do it would be to terminate the SH 401(k) effective 12/31/25 and establish the SIMPLE-IRA 1/1/26 (for a variety of reasons). If the "cost" of the SH match is the problem they could terminate the plan or eliminate the SH match, with 30 days notice to employees, but they'd be subject to ADP/ACP for 2025 and if the Plan is TH they would not get the "deemed not top-heavy" exemption.

Even within one pension plan, a plan might provide different definitions of a spouse for different purposes. For example: A provision designed to meet Internal Revenue Code § 401(a)(9) might use Federal tax law’s definition of a spouse, and apply it to a relationship the church does not recognize as a marriage. A plan might impose a survivor annuity to protect a spouse of a marriage the church recognizes (and has not annulled), even if civil law ended the marriage. A plan might provide a special death benefit or a subsidized survivor annuity only to a surviving spouse of a marriage the church recognizes. A plan might, for some purposes not constrained by Federal tax law, recognize as a participant’s spouse a civil-union party or domestic partner, even if the U.S. Treasury department’s interpretation treats such a person as not a spouse.