Plan has a NCP PS allocation with each in participant in their own group.  

For 2023, the client has made 3 groups.  Group 1 & 2 = 3%  Group 3= 0%

Do I need to run a 401(a)(4) General Test or if they pass coverage, am I good?

Company A and Company B are owned 50/50 by the same two individuals.  Each Company sponsors their own 401(k) plan (Plan A and Plan B), neither which are safe harbor.  The owners and their spouses are eligible to participate in both plans.  Plan B only employs the owners and their spouses.

Plan A runs on a fiscal year ending 7/31, Plan B runs on the calendar year.

It's my understanding that we have to ADP test these plans together, but I'm unclear on how to do this.  Do we need 7/31 census data for the calendar year plan and then run the combined ADP test, or do we need 12/31 census data for the 7/31 plan and then run the combined ADP test, or?  Sorry if this is an elementary question but I just can't wrap my brain around this.

Mandatory Aggregation

•  Mandatory aggregation of HCEs is required when an HCE is eligible (not just deferring) for more than one 401(k) or 401(m) arrangement

•  Mandatory aggregation of HCEs is not applicable if the plans cannot be permissively aggregated (i.e., mandatorily disaggregated groups – union/non-union). However, mandatory aggregation of HCEs still applies if permissive aggregation is not permissible due to different testing methods, different plan year ends, or one plan is safe harbor.

An employer funds their discretionary match per pay period.  They also calculate a true-up at year end.  In order to receive the true-up, if any, the employee must be employed on the last day of the plan year.

Do I need to run Benefits Rights and Features on the true-up provision, or does the ACP testing suffice?

Does anyone know or have a reference as to whether a small employer subject to the automatic increase in the deferral limits for a SIMPLE starting in 2024 can elect to make the higher contributions?

Notice 2024-2 clarified that employers with more than 25 employees can elect the higher limits and must make the higher employer contributions (4% match or 3% NEC) but are the small employers able to elect the higher employer contributions?
 

I have not been able to find anything that says they can (or cannot).  SIMPLE IRAs are not my wheelhouse so I appreciate you in advance!

I think I'm overthinking this, but now I just wanted to be sure.

If the Plan is Top Heavy, but no Key Employee received a contribution (they also did not make any deferrals for the year) the Top Heavy is not required correct?

Since the highest contribution percentage for a Key Employee is 0%.  I just wanted to make sure I was not confusing myself.  Just one of those days.

This 401(k) plan was moving along very smoothly.  Then I discovered that for the owner (who didn't defer this year) received a match contribution ... on nothing.  The CPA told the bookkeeper to put $4500 in for him.  Who knows what he was thinking.   We have some true-ups for the other employees that we will eat up most of the $4500 but there is still a some left ($2700).  To remedy this can the owner put in the $2700 as a Roth deferral which would me batches 100% because it is so small?  Amend the W2?  or is it too late?

Keeping in mind that safe harbor does not work for all plans, as we run projected ADP testing for 2024, is anyone else noticing significant changes because of the HCE Comp definition increase from 2022 of $135,000 to 2023 of $150,000?

From the instructions:

"Line 18. Contributions Made to the Plan. Show all employer and employee contributions either designated for this plan year or those allocated to unpaid minimum required contributions for a prior plan year. Do not adjust contributions to reflect interest. Show only employer contributions actually made to the plan within 8½ months after the end of the plan year for which this Schedule SB is filed (or actually made before the Schedule SB is signed, if earlier)."

What are folks doing when the amounts actually deposited during the year are way more than needed?

Assume they will file Form 5330 and pay excise tax.  On the Form 5500-SF (I work only with small DB plans) do you put the full amount of the deposits? And just the amounts actually allocated for the year on the Sch SB? The Sch SB amounts will be lower than the contributions on the 5500-SF. Is it okay that they are different?

Assume the plan cannot be amended to increase benefits (which is now an option for 2024 per SECURE 2.0). 

Hello,

As we know, SECURE 1.0 and SECURE 2.0 increased the RMD age. Let's say a DB plan kept their distribution age at 70.5 and continues to pay mandatory distributions at 70.5. Let's assume a participant turned age 70.5 in 2023 and the DB plan will pay the first "RMD" by April 1, 2024. Can a participant roll that payment to an IRA and avoid taxation since the plan is forcing the distribution sooner than they otherwise are required to? Does by virtue of the plan keeping the RMD age at 70.5 make this an RMD? Or does the participant have any individual choice to roll it since it is paid before 73?

Thank you for your thoughts.

I need clarification on something for the Employer Contribution Credit. The instructions seem to conflict (or perhaps just don't address) with my reading of the actual tax code. I would like to know what others think. 

Does the 3 year lookback apply for all years? or just the first year? - please read my entire question before commenting. 

I.R.C. § 45E(f)(4) Determination Of Eligible Employer; Number Of Employees — 

We are a tax-exempt entity ("A"), merging with another tax-exempt entity ("B").  Both A and B have 457(b) Plans.

We are concerned the merger will trigger distributions under B's 457(b) Plan.  The B Plan provides for distribution upon Severance from Employment.

According to the regulations, a severance occurs when the participant has a severance from employment with the eligible employer.  Eligible employer is defined as the tax-exempt entity that establishes the Plan.  

Can A just take over the B Plan and treat it as if no severance occurred?  A did not "establish" the plan, so maybe not?  What are our options here?

Thank you.

A Safe Harbor Match plan currently has no allocation conditions for Profit Sharing and the formula for Profit Sharing is defined as pro rata.

Can the plan change the formula to New Comparability - One Group per Participant mid-year?

No profit sharing has been funded to the plan yet in 2024 and the plan document defines the period for determining the amount of an allocation of Non-Elective Contributions as End of Plan Year.

Thanks.

So, non-profit employer "A" sponsors a 403(b) plan. Employer "B" is a disregarded entity, but signed on as a participating employer to "A's" plan, on the advice of counsel, just to make things clear. Now employer "B" is breaking off from Employer "A" and is going to change to a for-profit entity as of the separation date.

"B" is going to, probably, install a 401(k) plan, although probably not with us as the investment person is hyped on bundled arrangements. Que sera sera.

It seems to me that this would be considered a termination of employment for these participants, and they would be eligible for distribution or rollover as they choose. Is my thinking on this flawed?

We were recently made aware of a late contribution issue with one of our clients when the company was purchased and the new owner started submitting their 401(k) deposits.

Due to a payroll software issue, deferral and loan payments have been consistently submitted 2 weeks late since 2006. This is a small plan and the deposits have not met the 7-business day safe harbor. After interviewing the sponsor, we have determined it would be very difficult to make the argument that deposits were made as soon as administratively feasible. With a little extra work, the new owner is using the same payroll system and is now submitting deposits timely. No late contributions have been reported on the plan’s 5500s, nor has the sponsor filed 5330s.  The new owner wants to correct the late deposit issue and we are trying to provide some guidance/assistance. 

Obviously, this situation is a candidate for VFCP, but neither we nor the plan sponsor have data prior to 2014.  The sponsor may be able to produce individual payroll data for the last couple of years, but we would need to propose some simplifying assumptions given individual payroll data is not available for more than a few years.  This would seem reasonable given that deposits have consistently been 2 weeks late for the entire period.  The IRS has been open to less than full corrections where data was unavailable in VCP filings we’ve done. We haven’t had to do any VFCPs where a full correction was not possible. We are wondering if the DOL is open to less than full corrections and some simplifying assumptions with VFCP filings.

Given these facts, we have a couple of questions for the group:

1. Has anyone used the VFCP when a full correction is not possible because the data no longer exist?
2. Since we don’t have individual payroll information for all years, is the DOL open to using annual deposit information and assumed annual interest rates for calculating interest due on the late deposits?
3. Other insights?

 Thanks in advance for any insights.

Plan sponsor currently wants to have a service requirement for match of 250 hours in 12 months.  

If employee works more than 250 hours, but less than a 1,000 hours during the eligibility period, can we still disaggregate because they didn't complete 1,000 hours of service? 

Thanks for any guidance.

Our company is being acquired and the acquiring company has informed us that they wish to terminate our existing 401k plan.  Our plan is a Safe Harbor plan (100% match on first 3%. 50% on the next 2%) that incorporates a year end true-up.  The acquiring company wants to move fast and wishes to terminate the plan ASAP.

I have limited experience with 401k plan closures, so I have a few questions:

-  If for instance, the plan was set to terminate on March 15th and we have a pay date on March 15th, the regular 401k deferrals and matching contributions would not be deposited into the 401k plan until March 18/19, after the plan termination date. Does this present a problem?

-  Our plan also has a true-up provision, I'm not exactly sure how soon we would be able to calculate and deposit the 2024 true-up contribution, but it would be weeks, maybe months after the plan termination date...is this OK?

- IRS determination letters.  I know this is optional, but curious to know if most plans seek the determination letter when closing a plan.  For those that wait for the determination letter, how long does that typically take?

Any other thoughts or things that I should be concerned about with the closing of the 401k plan?

TIA

In Texas v. Garland, No. 5:23-CV-034-H [document 110] (N.D. Tex. Feb. 27, 2024), the court holds that the Consolidated Appropriations Act, 2023 is not an Act of Congress because the House of Representatives lacked a constitutional quorum on December 23, 2022 when the House voted on the Senate-passed bill.

SECURE 2022 is division T of that Consolidated Appropriations Act, 2023, Pub. L. No. 117–328 (Dec. 29, 2022), 136 Stat. 4459 (2022).

The court’s orders, even if all stays expire or otherwise end, do not act on division T. Rather, the court enjoins only the U.S. government’s enforcement of the Pregnant Workers Fairness Act against the State of Texas.

Yet, until there is a final decision of the Supreme Court of the United States:

Might a plan sponsor that dislikes SECURE 2022’s added or extended provisions about long-term part-time employees (not challenging the provisions enacted in SECURE 2019) assert that the Treasury department’s Internal Revenue Service cannot require those provisions as a condition for a plan’s tax-qualified treatment?

If, next year, a person who would be eligible if added ERISA § 202(c) is law is denied her elective-deferral opportunity, might the plan’s administrator argue that a judge must dismiss the participant’s complaint because it fails to state a claim on which relief could be granted?

About permissive provisions a plan sponsor likes, one imagines neither the Labor department nor the Treasury department would assert that a SECURE 2022 provision is not law because such an assertion would be contrary to at least the litigation position of the United States.

Texas v Garland (Is SECURE 2022 not law).pdf

The guidance seems to indicate only employed participants may avail of hardship distributions, as the directing code section and treasury regulations seem to deliberately refer to "employees" in contrast to "participants". 

Have an on-going traditional 401(k) plan (calendar year) can it be changed to a safe harbor 401(k) plan (with SHNE contributions) effective for this 2024 calendar year or do we need to wait until 2025?

Thanks.

Not the most ideal situation but trying to create a solution to help support some operational failures.

our base plan document allows us to add on an administrative policy around the order in which deductions are withheld from payroll to avoid under deferring or over deferring. We also have plans that are missed as sometimes there is not enough of a person's pay to allow for their mandatory and voluntary deductions.

This does not appear to be a big item in plans documents or that a lot of plans have this. The thought is to adopt a policy in case the deductions are more than their pay, but I do not see any official ERISA guidance. Our plan compensation and to make our plan work, we need to have employees making deferrals. 
 

any thoughts or challenges? Anyone see where if not enough funds, 401k loans are withheld before their elective contributions? 
 

thank you