We have acquired a client who has split its employees into two plans in 2010 based on hire dates.

Plan 001 is for all employees hired before 1/1/2007. Plan 002 is for all employees hired on or after 1/1/2007.

Now Plan 002 is getting close to audit size and the client would like to amend the two plans effective 1/1/13 and change the hire dates for Plan 001 to cover employees hired before 01/01/2009 and Plan 002 for all employees hired on or after 1/1/2009.

Is it legitimate to move employees around like this? Or does the client need to add a third plan that moves employees from Plan 002 to Plan 003?

Does anyone have clients that have multiple plans to avoid plan audit? Has anyone moved employees between plans like this?

Hello All:

I am new to this board but I am hoping someone here can provide some guidance.

I am a sole proprietor/self-employed person with no other employees, unincorporated, Schedule C filer for the business income.

I do not draw a regular salary and my income stream throughout the year is generally highly irregular/lumpy.

I established an individual 401(k) plan (with Roth option as well as traditional/after tax contribs) in 2011 using Vanguard as the trustee.

I am very perplexed about what, exactly, is the contribution deadline for the employee salary deferral part of the plan. (I understand that the deadline for contributions by the employer/profit-sharing is the deadline for filing of the tax return for that tax year + extensions.)

I have done a search on the net (which is actually what brought me here) and found a couple of old threads here but I am not sure they addressed my particular question or if they would still be applicable at present even if they did address my situation.

On the net, I have seen various sources, some of which seem to indicate that: 1) employee salary deferral contributions must be made by December 31 of the tax year for which the contribution is made but others which seem to contradictorily indicate that: 2) employee salary deferral contributions can be made (for a self employed sole proprietor with no employees) up until the tax return filing deadline + extensions (i.e. same deadline as for making the employer/profit sharing contributions).

The latest version of Pub. 560 seems to have one and only one part which talks about employee contribution deadlines for qualified plans, but it's not clear that this language is intended to specifically apply to 401(k) plans, although I don't see anywhere else in the publication which has a different deadline for the employee contributions. The precise language from Pub. 560 is as follows (at page 15 of the pdf version of Pub. 560):

When Contributions Are Considered Made

You generally apply your plan contributions to the year in which you make them. But you can apply them to the previous year if all the following requirements are met.

You make them by the due date of your tax return for the previous year (plus extensions).

The plan was established by the end of the previous year.

The plan treats the contributions as though it had received them on the last day of the previous year.

You do either of the following.

You specify in writing to the plan administrator or trustee that the contributions apply to the previous year.

You deduct the contributions on your tax return for the previous year. A partnership shows contributions for partners on Schedule K (Form 1065), Partners' Distributive Share Items.

However, this language is before the section headed "Elective Deferral (401(k) Plans)" which starts on Page 16 of the publication. So I am not sure if the above section also applies specifically to 401(k) elective deferrals. But the 401(k) section starting on page 16 has no similar section specifically addressing when employee deferral contributions are deemed made as appears for "qualified plans" on Page 15.

Finally, in reviewing my Individual 401(k) Plan Adoption Agreement with Vanguard, the "effective date of the plan" is 1/1/2011 but the "effective date for elective deferrals under this plan" is 12/21/2011, since I did not actually sign the adoption agreement until that date, and according to the instructions, the effective date for elective deferrals could not be earlier than my plan adoption date.

So, my questions would be:

1. What was the deadline for making employee salary deferral contributions for tax year 2011? (I understand that any possible contribution for tax year 2011 is long since past as the max possible deadline assuming filing date + extensions would have been October 15, 2012).

2. What is the deadline for making employee salary deferral contributions for tax year 2012?

3. If there is written authority one way or the other i.e. stautory or IRC can anyone cite it?

4. Are there any sub-limitations on the timing of the employee deferral contributions within the overall deadline (assuming a conclusive final overal deadline for employee deferral contributions can be established)?

Thanks to everyone for reading this and for any and all help/opinions that anyone can provide.

I know an eleciton is required before the last day of the plan year, but instead of chasing these guys down every year, can I just have an evergreen election to defer the max allowed every single year?

I'm sure this has been covered but apparently my search skills have failed because I couldn't find anything in the many threads referencing this topic.

We try to strongly discourage principal residence loans but if a client is instant, what documention must a Plan Administrator get to certify that it is really for the acqusition of the participant's principal residence?

Is a statement under penalty of perjury from the particiant acceptable?

An "offer sheet" on the house?

Evidence they have entered escrow?

Do you have to have to get a copy of the title afterwards and evidence they moved in?

Someting in-between the extremes?

Curious what other folks do on this. Didn't see anything in the code or regs that was on point but if I missed it, a citation would be appreciated.

Has anyone an inkling of when the IRS may issue the MAP-21 interest rates for 2013? I have a couple clients who will need to know these rates to perform the 110% test under 401(a)(4) for lump sum distributions to HCEs. While I can estimate, the obvious preference is to use the exact rates.

When the plan document requires distribution of balances over $5,000 at the later of age 62 or NRA, and NRA is age 65 with 5 year of participation, does a participant who terminates with less than 5 years of participation ever reach NRA?

Medical Practice owned 100% by A. A is also the director of a non-profit that sponsors a 403b plan. Is there ever a possibility that there could be a controlled group if there is at least one other director?

I understand the general rules for reporting nonqualified deferred compensation ("NQDC"):

1) when vested, included in social security / medicare (boxes 3 and 5 on W-2)

2) when distributed, include in income (boxes 1 and 11 on W-2)

How do we treat earnings? The only guidance I can find says that deferred compensation includes earnings. Does that mean I have to report earnings every year in social secuirity and medicare so long as they are vested?

For 2012 calendar year plan year:

Pre-MAP21 funding requirement = $40,000

MAP21 funding requirement = $0

Employer had previously elected to apply credit balance to satisfy quarterly contribution requirements.

Since funding requriement is now $0 do those credit balance elections become moot, or does employer need to formally elect to reverse those elections in order to replenish the original credit balance?

IRC 430(f)(3)(A) may apply credit balance against the minimum required contribution (not in excess of the minimum required contribution).

Based on the above, it seems that any election in excess of the minumum required contribution is moot and therefore an election to reverse the application of credit balance would not be needed. Am I not understanding correctly?

Thanks for any and all responses.

Suppose you have a profit sharing plan where one of the participants had no contribution or forfeiture allocation. Can that salary be used for the 25% deduction limit?

I think not. Does anyone agree? Disagree?

Thanks.

We administer a Profit Sharing Plan that had 7 participants for many years. All were terminated back 3 years ago. Partial plan term so all were made 100% vested and paid all their benefits. For the past 3 years, only the company owner who is also trustee has remained. No contributions have been made in the past 6 years.

They just sent us the year end information and investment statements showed the withdrawal of all assets throughout the past year. Upon asking the owner (and only remaining participant) where the money went and he replied "my pockets". He mentioned that he never contacted us because he needed the $400k and felt no need to go through us for the "nonsense" of benefit elections and withholding etc.

Besides the considerable problem of no tax withholding, are there any other problems? He is willing to pay all taxes and pre-mature distribution penalties.

I have a question of best practices for accounting of loans and offset for deemed/defaulted loans.

If an active employee defaults on a loan (say they went on unpaid leave), and they are age 50 and have no distribution rights, then it is "deemed" and reported as taxable income if they don't make up by the cure period for missed payments.

A loan offset is created and accrues interest, unless the participant pays back the offset with interest to remove.

What if the Plan allows for in-service distributions from all sources of money at 59 1/2, and this person turns 59 1/2 after 9 years of carrying the offset? Should it be "removed"?

What if they terminate employment carrying an offset? Should the Plan remove the offset as soon as administratively feasible after term? Or wait until the person fully distributes their account?

I understand that removal of the offset with accrued interest doesn't create a new taxable event, in essence it is just to remove the principal "due" from when the loan deemed years earlier along with any accrued "phantom" interest "due", since the person did not have distribution rights when it was deemed, correct?

What about a person that is already 59 1/2 at the time they are defaulting on their loan? For example loan started at age 57, then at age 60 it defaults while actively employed. Should they have a deemed loan and offset? Or, since they have distribution rights, should it just be defaulted and no offset should carry?

I appreciate any insight, and references in IRS guidance if possible, this has proven to be difficult to ascertain exactly.

Thanks

Plan participant (owner) wants to withdraw in excess of the required MRD:

1. Is the withdrawal subject to witholding?

2. If yes: How much is the witholding from the MRD portion and how much from the excess withdrawal?

We were told by the participant that her accountant told her that no witholding is required.

the designated beneficiary is the beneficiary of the trust. i know the rule is that the account must be paid out over the life expectancy of the oldest designated beneficiary. however i am not sure about the mechanics of this. does the account get rolled over to an IRA in the name of the beneficiary or does it stay in the name of the trust? has anyone actually done this?

Corporation started on 9/1/2010 with 2 full time employees. The owners did not take any salary until 01/01/2012. Corporation wants to adopt a DB plan as of 01/01/2012.

Can it be assumed the owners hire date was 09/01/2010 and give them past service credit?

Can a plan change before the end of the year from a 3% non-elective safe harbor to a safe harbor match, if the participants already received a safe harbor notice informing them of the 3% non-elective?

Any sites would be helpful.

plan year = calendar year

Thanks in advance!

Company A adopted a 401(k) Plan on a standardized prototype document in 2002. They are part of a control group with company B. So, my understanding is B is in the Plan even if they don't formally adopt the Plan b/c it is a standardized prototype document. Roll forward to 2010. They restate the document on a VS document. Company B does not formally re-adopt the Plan; however, they never discontinued or revoked participation in the Plan either. Are they in the Plan or not? If not, would they need to do VCP or could they use SCP?

IRC Section 72(t)(2)(A)(iii) provides that no penalty will be applied to distributions that are attributable to the employee's being disabled within the meaning of subsection (m)(7). What is the meaning of subsection (m)(7)?

The plan sponsor deposits deferrals, loan repayments and match to a cash account within the plan the day after the pay date via ACH. They allocate these to participant accounts monthly.

When the sponsor went to allocate to participants, she accidently transferred the money from the account she uses for the ACH and not the cash account held within the plan.

Now the cash account holds the original contributions AND she re-deposited a months worth of deferrals, loan repayments and match to participants. (double deposit)

Can we return the contributions held in the cash account?

Corp Smith is owned by Dr. Smith. Eff Jan 1, Smith is bringing in Jones as a 50/50 owner. Corp will keep tax ID number, but change its name to Smith and Jones.

For a lot of reasons (the primary one being getting rid of self-directed brokerage accounts), we'd like to terminate the old Smith (401(k) plan and start fresh with a new Smith and Jones plan.

Smith and Jones Corp uses the same tax id number, but if you look at ownership, there wouldn't be a controlled group. I'm thinking it is the same company and therefore we are stuck (can't terminate the old plan and start a new one) but thought I would throw it out there for comments.