I was hoping to get some thoughts under "plan corrections," but nobody responded, so I'm giving it a shot here. We know the property has to come out of the plan. The HCE participant is over 70, so we're thinking that perhaps he can take a distribution of the property and pay tax on the market value. But, we'd like some thoughts on whether taking the distribution would be a prohibited transaction.

Normally, for a short plan year the HCEs are determined by their compensation for the 12 month period prior to the short plan year.

However, I’ve heard that in a partnership, the partner’s pay is deemed to all occur on the last day of the FY. In that case, how would we determine HCEs based on compensation in a situation where the plan was amended to create a short plan year from 10/1/12 - 12/31/12?

Owner of a small business has run into some major legal trouble. Company is going to go through bankruptcy, likely will be dissolved. Owner is likely to be sued as well. He has already taken steps to terminate the companies 401(k) Plan and many employees have already been let go.

(1) The plan expenses are paid from the plan assets. Knowing the condition that the company is in, the accountant and the TPA want paid immediately for 2012 and 2013 work before anyone is paid out. The owner (who is close to age 70) has the largest account balance and wants to roll his money out of the plan. However, the brokerage firm where his (and all participants) assets are held is not willing to release all of his money for the rollover because of the fees that the CPA/TPA want up front. They want to prohibit him from rollover over $20,000 of his balance in order to cover these fees.

Can they do that? Isn't that the trustees decision? Is there a cut and dry answer to this? I believe they have an institutional trustee, not individual trustees.

(2) Same owner has some rental income, separate from the above business. In order to have some income sheltered from creditors, he wants to be able to defer some of that rental income into a new retirement plan, that would cover just him and maybe his wife. Right now he has been declaring that rental income on his personal tax return via schedule C. Could he set up a new business entity based solely on his rental income, and in turn establish a profit sharing plan in which he can deposit up to 25% of this income?Seems OK to me.

(3) If #2 above is OK, could he roll his account balance from the plan in #1 above into this plan, allowing that to be sheltered from creditors as well?

(4) If he could establish a plan like in #2 above, and if he could somehow have his wife eligible to be in this plan, could she roll any unrelated IRAs she has into this plan? Her goal would be to shelter some of her IRA money from creditors as well?

Thanks for any comments. They obviously will have legal help on this but I wanted to see if any of the above are possible solutions.

Have had two different proposals run across my desk for newly established entities that are looking at DB plans.

Facts are:

Fiscal and plan years both will be maintained on calendar year basis; will be short year say of 10/1/2012-12/31/2012 respectively.

No past service so Shortfall Amortization bases not an issue (see in regs where prorate amortization payments for short plan year).

In old pre PPA days when we were dealing with say Individual Aggregate, would prorate Normal Cost for months of year. A little confused in the PPA world how to treat Target Normal Cost.

Looking at definition of Plan Years of Service in our document (which is a year of participation with 1000 hours of service), short plan year is dealt with by pro-rating hours requirement by month. So for funding purposes, would imply that our 3 month plan year would credit as 1 Year of Participation. So if salaries are such that dealing with 415 limit, could one use a Target Normal Cost equal to 1/10th of dollar limit? Seems like a much higher result than I would anticipate given a short plan year.

Any guidance?

Background:

For first half of 2011 entity was sole-proprietorship. Incorporated for last half of 2011.

Question: Is there any reason why the sole-proprietorship can't adopt a SEP for the 2011

year, based on the earned income of the Sole- proprietor for the first half of 2011?

Adoption to take place between now and 10/15/12.

Once the company incorporated in last half of 2011, no further income was generated or services

rendered to the sole-proprietorship. Did the sole-proprietorship cease to exist when the company was

incorporated in 2011, therefore is unable to adopt in 2012?

If it makes any difference, once incorporated, no further services were performed for the sole-proprietorship,

neither in 2011, nor in 2012.

When does a sole-proprietorship cease to exist?

I have a Volume Submitter 401(k) Plan that does not allow for profit sharing contributions. Can someone confirm that I DO NOT include code 2E on the 5500?

Thanks!

is 9/15 2012 the last date a contributions can be made to a profit

sharing plan to test a db/dc combo for 2011? Can contributions after 9/15

but before the 10/15 filing date be allocated to 2011 and deducted for 2012?

if techincally this is not correct could it be a reasonable self correction? Note

that no minimum contribution was required for the db plan...

I was asked if a college professor who is part of the ORP (Optional Retirement Plan) at his school, and who must contribute to the ORP plan..... does the contribution that he makes to the ORP count towards his 402(g) limit? It is an employee contribution.. I honestly dont know if it is considered a "salary deferral" Anyone know these plans"

This professor is an employee of a state operated university and at the same time has self employment income separate from his college income for which he sponsors his own 401(k) plan. He wants to max his 402(g) contribution outside of the ORP but doesnt know if he can.. he doesnt know if the money he is required to contribute to the ORP counts towards the 402(g) limit.

Thoughts?

Thanks

Is anyone familiar with the Schedule F that Puerto Rico plans are to file? It appears to be a Schedule that would be attached to their Puerto Rico corporate tax filing. We have a client asking us to complete it. Does anyone out there do these for their clients? Thanks.

Hello,

Can a class of employees be excluded (interns) from the 3% safe harbor qnec contribution

Thank you

sue

This is not my expertise... probably a very simple answer...

I was asked if a college professor who is part of the ORP (Optional Retirement Plan) at his school, and who must contribute to the ORP plan..... does the contribution that he makes to the ORP count towards his 402(g) limit?

This professor is an employee of a state operated university and at the same time has self employment income separate from his college income for which he sponsors his own 401(k) plan. He wants to max his 402(g) contribution outside of the ORP but doesnt know if he can.. he doesnt know if the money he is required to contribute to the ORP counts towards the 402(g) limit.

Thanks

Scenario: Employee hired May 1st. Coverage under prior employer ended April 15th. Our health plan has a 90 day waiting period before coverage begins. Employee's health coverage with our company begins August 1st. Employee did not elect COBRA, and thus did not have any insurance coverage from April 15th to August 1st.

Did employee incur a significant break in coverage?

I read on this website that waiting periods are not counted as a signficant break in coverage:

http://www.familiesusa.org/issues/private-...efinitions.html

http://www.dol.gov/ebsa/regs/fedreg/final/2004028112.pdf

But the term 'waiting period' seems ill defined.

The employee has a pre-existing condition. They have a certficate of coverage from prior employer, which is not relevant if the significant break in coverage applies.

Thoughts anyone?

We have a client who excluded eligible employees from participating in the plan since July of 2011 to present date. The exclusion of these eligible participants from contributing salary deferral contributions and receiving employer matching contributions would be considered an operational error and the plan sponsor should correct the error as soon as possible using a reasonable correction method that would place affected participants in the position that would have been in had there been no operational defect. Under Revenue Procedure 2008-50, the correction for a failure to include an eligible employee in a 403(b) plan is based on the "missed deferral opportunity" to make deferrals. Under the correction method, the plan sponsor would make a qualified nonelective contribution (QNEC) to the plan on behalf of the excluded employees for their "missed deferral opportunity". The QNEC for the missed deferral opportunity is equal to 50% of the employee's "missed deferral". In addition, the plan sponsor would be responsible for making matching contributions for the excluded employees equaling the matching contributions that would have been would have received had the employees made pre-tax contributions. However, the corrective matching contributions would be based on the full amount of deferrals and not the 50 percent lost opportunity applicable to employee deferrals.

Question is can the plan sponsor use plan forfeitures to fund the QNEC and matching contributions?

To calculate a participant's Section 415 lump sum limit, is it permissible to use attained age as of the date of distribution, rather than nearest age, for purposes of determining which Annuity Purchase Rate to use?

For example, if a participant turns age 71 on October 9, 2012, may I use the APR for age 70, as long as the distribution occurs by October 8, 2012?

If the answer is no, could you please provide the citation in the 415 regs?

Thank you!

Employer would like to amend its safe harbor 401(k) plan to allow for in-service withdrawals from the Plan of non-safe harbor funds, i.e., profit sharing and employer matching contributions. (The safe harbor contibution is 3% non-elective.) Seems to me that this type of amendment should be permitted, reasoning that because it does not affect any of the Plan's safe harbor provisions the proposed amendment does not run afoul of Treas. Reg. 1.401(k)-1(e)(3). But, general thinking seems to be that this type of amendment is not permitted during the plan year -- only at the beginning of the plan year.

Thoughts? Thanks.

Client thought a "plan participant" was only someone with a balance and never reported eligible, non-deferring participants to the TPA. The prior TPA never questioned that 100% of the employees were deferring into the 403(b) plan and filed 5500-SFs each year. In fact, there were several hundred eligible employees. We are working with the client to get the audits done to amend the past filings. Although we will be asking for a waiver of the penalty, I'd like to be able to give them an idea of what it might be. I haven't been able to find this detail on the EBSA website.

Is it even an option at this point to still use the 30-year GATT Rates as the 417(e) rates in the plan document instead of the newer RPA segment rates ? Thanks.

ok folks...we are running into a strange situation for the first time in our many years in business and want to know if others are having the same experience.

Let me start by saying we are a "nonselling TPA". A broker recently sold a plan with a vendor we had not worked with before. The vendor stated that it will not take ANY current deposits until the assets of the plan have transferred from the former investment provider to them. We thought this was odd since our experience has always been that the new enrollments are completed and, once the participants and investment elections are set up on the new platform, the client can begin to put current deposits into the plan and not have a period of lapse in deposits (which we all know is a good thing because of the 401(k) deposit timing rules).

Now we have another new plan with a different investment vendor (that we DO work with on other plans). This vendor is also saying that it will not take current deposits until the funds have transferred from the prior provider - but they did in the past. I understand blackout rules on the side of the vendor the assets are leaving...but why on the new platform?

What's up with this?!? We have vendors that have taken months to transfer the assets to the new provider...who would have the client hold up deposits for that?!?! This is SO contrary to the whole DOL/IRS deposit timing rules that I can't even express it!

Anyone else running into this issue?

I recently took over internal administration for a company and have several missed items. Most recently, I discovered the Form 8955-SSA has not been filed for 2009 or 2010 plan years.

Do I need to file for these years and then prepare the 2011 Form 8955-SSA by the 10/15 deadline, or can I combine all as one? Is there any point in going back and trying to correct for the missed deadine through DVFC since the form isn't required if there isn't anyone to report? (Although in this case there were people to report.)

May an individual-account retirement plan provide that a QDRO distribution to an alternate payee is permitted before the participant's earliest retirement age IF the QDRO provides its distribution to the participant's spouse or former spouse, BUT also provide that a QDRO distribution before the participant's severance from employment or age 50 is NOT permitted if the distribution would be payable to the participant's dependent (including the participant's spouse or former spouse as a fiduciary for a dependent)?