Virtually every IRS rep reviewing Forms 5310 that I have submitted has taken the position that there can be no forfeitures in the year of plan termination.

However, I cannot find firm support for this position in either my plan document or in the code and regs.

Case at hand: The plan document allows immediate forfeiture upon cash-out distribution. Plan sponsor wants to pay out all terminees and THEN sign the plan termination corporate resolution and amendment, prior to the end of the current plan year.

Of course, we would look hard at whether a partial termination had occurred. But if we determine that no partial plan termination has occurred, could we take the position that cash-outs prior to the date of plan termination trigger forfeitures, that those forfeitures could then be used to pay plan administrative expenses (which the plan document allows), and ONLY those participants not cashed out after the date of plan termination become 100% vested?

Has any practitioner argued this during a Form 5310 review and won?

I recently got laid off and need to make a decision about my 401K. I have left the US and likely will not return (I am not a citizen and no longer have non-immigrant status). I’m hesitant to cash out due to the tax hit however I will only have been employed for 4 months in 2011 and lost a large amount in company shares (not sure if that helps with the tax). The company is in liquidation so leaving in company plan is not an option.

For my situation would a traditional IRA or a Roth IRA be my best option. I’m assuming I can’t make any contributions since I will no longer be employed in US. If I do a Roth IRA and lose the 30% upfront will I still be taxed when i take distributions on retirement since I will not be resident in the US.

If I rollover to a traditional IRA and avoid the tax upfront, will I be taxed at the normal rate for US citizen or will it just be viewed as a regular investment if I am not resident in US.

Thanks for any advice.

409A(a)(4)© lays out subsequent deferral rules for NQDC plans. 409(a)(4)©(iii) specifically seems to require that a subsequent deferral election be made 12 months BEFORE payment could otherwise be made under a separation from service plan that provides for payments to the participant over 7 years. Neither the code, regs, or examples talk about subsequent deferrals being made after payment otherwise would have been made (after separation from service).

For instance, if a participant retires and starts receiving payments under a 7 year plan, can he then elect to stretch out payments over a 10 year period as a subsequent deferral?

Can any subsequent deferral be made AFTER the first scheduled payments have begun?

I can't find any guidance on this issue, so any help would be appreciated.

Where do we indicate on Form 5500 SF/EZ that the plan is a 412(e)(3) and is exempt for Schedule SB?

Thanks for all responses.

I've decided to post this version of the report for now. Seem to be having real good success with it, and the wonderful Austin took the trouble to look at it and seems to have success as well. He actually modified the report slightly and I actually like his version of the report better, but I ran into one problem with the report if 2010 is the first year the plan is on the system even though it has existed in the past. Which is why I posted this version)

OK, I'm at level 16 and it appears to works fine, he is still at an earlier version, so the D people don't get pulled from the prior year (if the report is printed from 1/1/2009 - 12/31/2010)

another possible issue is the amount that shows - possibly may be different if there is an outstanding loan balance.

In Relius, run the report out of Custom, save as a File/ Excel (data only)

the items in columns A - J can be copied and pasted into the FT William file 8955Sample.csv

(when you open up the 5500 in FT William, you have to first click on form 8955-ssa

and then return - at that point you will now see an option to upload file.)

I've sort of added a counter to the spreadsheet, you can total up the number of D and A people on the excel sheet you create.

I had one person show up as an A that had a residual balance of 45 cents, so they showed as a 0, I guess its ok to delete folks like that.

had another that showed as a D. usually they show blank for the amount, this one showed as a negative amount, because I'm pulling the vested balance total. I think that was caused by the person being paid out and by the time the balance was forfeited there were some losses, so the system thought he was overpaid. (all account data was imported)

so I guess there are one or two items to watch out for.

This report can be run across the all plans as well, but of cousre the results only make sense if the plan has processed for the year.

people who would have been an A in 2009 and a D in 2010 do not show. working under the assumption that you do not have to report these folks.

of course, such report is 'use at your own risk', but as I've said, it looks to me like its doing the job.

I think that's everything

I have an annual plan (12/31 pye) that was valued in April 2010 (special valuation) in order to pay out a few terminated participants. One person was paid out his safe harbor (100%) and psp (40%). He was then rehired in August 2010 and terminated again in November 2010, during which time he worked enough hours to accrue another year of vesting. He received more safe harbor and a psp contribution. Now he wants a payout again. His safe harbor is 100% vested but what should he be paid of his psp? Should he only receive 60% of the current balance in the psp source or does his previous payout and forfeiture come into play? We use Relius and it appears on his statement that Relius is trying to pay him almost 80% of his current psp amount - I assume due to the previous forfeitures. I'm battling myself on what is correct. He did not lose any vesting, he was paid appropriately the first time 40% of his current balance. Is that a done deal then and we then move on to the new balance or do we have to factor in that previous distribution as if it never happened? It's not like he repaid the distribution so his forfeitures would be reinstated.

any insight?

This may be a dumb question but I haven't been able to find a specific answer. If a particpant is coded A, and I prepare (as TPA) the necessary notice, when the same participant is coded D after distribution - do I have to give that participant another notice? EG is the notice required anytime a participant is SSA-reported, even if that means a participant may receive more than one notice? I don't see what purpose it serves to give a second notice after the Code D (that doesn't matter however; my goal is to do what the law requires). Thanks for any input.

In the past, I understood that if a participant who otherwise would have been reportable as an A on the year's 8955 (Sch SSA in the past) - but was distributed prior to the filing of the 5500 and Sch SSA - did not actually have to be reported. I learned at a seminar this week that supposedly the cut off is now the prior year end. So if I'm analyzing the 2010 calendar plan year, and I have a Code A - but that person was fully distributed April 23, 2011 - in the past I would not have reported that person if the SSA was filed after April 23, 2011. The way I interpreted the comments from the seminar was that is no longer permissible - in my example, the person would be reported for 2010, as a code A, and then on the 2011 reporting, as a Code D. This seems like unnecessary work for IRS, SSA, and the plan sponsor and practitioner. My concern is doing it right though (not the amount of work it requires). I'm curious if anyone else has heard what I heard (about the 12/31/ cut off) and / or what approach other practitioners plan to take regarding this issue. Thank you.

First time poster here.

I am curious if anyone knows where to find any information about best practices for QDRO procedures related to placing hold on the participant's account. Specifically, how long should a participant's account be frozen once the administrator receives notice that a QDRO is forthcoming but has not yet received a DRO.

The statute is no help in this area (there's only legislative history indicating that the time should be "reasonable"), there are no court cases on ths point (only one that I found that discusses it in dicta), and I can't seem to find any administrative guidance.

I'm new to the ERISA/Benefits Law area, are there any suggestions for where I should look for guidance? Did I miss something (i.e., a DOL advisory opinion)?

I'm looking over a plan that intends to termiante and distribute benefits.

4 partiicpants.

facts:

this plan was frozen 12/31/2004.

plan chose to apply pre EGTRRA limits (140k limit in 2002)

fresh start says when plan amended (presumably freeze established fresh start date on 12/31/2004) benefts at that time are fresh start benefits where it is defined as a "frozen accrued benefit" as if employee terminated and such benefit shall be increased in accordance with 415(d) increases if the benefit were subject to 415b limits.

Below is what has been done by tpa:

1. they used 415 $ limit of 140k in 2004 when computing 12/31/04 benefit. Question: should it have been increased by then for COLA to 145k since it was 140k in 2002?

2. benefits that were limited by 415 $ limit did not increase after 2004 for COLAs. Question: should the 415 $ limit have been increased here thus increasing the benefit payable at plan distributionin 2011?

3. benefit that was limited by comp limit was not increased for COLA increases after 2004. Questions: should that limit have been increased for COLA after 2004?

thanks

Suppose a DB plan is 3 years old now and has used end of year valuations each year. A new actuary is assigned and wants to change the 2011 valuation date to BOY, 1-1-2011. Is this allowable without seeking IRS approval, or do you have to file and pay the $4,000 user fee to get the change approved starting in 2011?

What do I do??? Does withholding apply? There;'s really no elections, because the truist can't roill it over??

Never had this happen before...

A client in a self-directed 401(k) plan owns land within the plan. He is now in the process of building a house on that land funded with personal money. He of course plans to use this house as a vacation home.

I can't figure out a way for him to correct this situation to allow him to use the house. He can't use the house on the land owned by the plan = PT. He can't buy the land from the plan = PT. Unless there is some exception that I am not seeing.

If an exception doesn't exist, anyone know the process to apply for one?

One other fact: he can't distribute the land from the plan. The money consist of sources ineligible for distribution pre-59 1/2.

calendar year safe harbor 401(k) plan with safe harbor basic match. Plan specifically excludes a category of employee that they call "TAR" (time as reported) which is basicially a per diem definition.

There are 2 employees who were full-time & participating, went part-time continuing to participate and now are moving to the "TAR" category as of July 1st.

After referencing the Plan Doc info these participants are no longer eligible to defer and receive the safe harbor match. I also believe, although cannot find it clearly stated, that they cannot receive distribution of their vested account balance until they completley sever employment.

My questions really relate to their eligibilty to make a deductible traditional IRA contribution - Are they considered "covered" for 2011 since they were active in the plan through June 30th? Therefore 2012 would be the first year that they can make a deductible IRA contribution (depending on their AGI)?

I am trying to establish an approach to administering a db plan after a plan freeze where the doument is silent re: 415 application after plan freeze.

In other words let's say a plan sponsor freezes a plan's benefit accruals and makes no mention as to how 415 will apply after the plan freeze.

So, essentially, the plan would have to handle 415 limits in accordance with statutory requirements. That is, the plan provisions has the basic 415 statutory language in place.

With that said, I make the following interpretations as reasonable (or at least not unreasonable) with regard to application of various aspects of 415 benefits for plan admin purposes:

1. service credit and participation credit continue for 415 purposes (of course participant must work requisite hours in plan year)

2. hi 3 avg comp continues and thus a participant's hi 3 avg can increase after plan freeze

3. cost of living dollar limit increases still apply

Of course the accrued benefit is frozen and if such benefit is below the 415 limit at time of freeze then the 415 limits may have no effect on such benefit. However, if act equiv is say 5% and participant chooses lump sum, then the increase in 415 benefit can enable participant who has annual benefit below 415 to receive a higher lump sum that might have otherwise been limited by 415 lump sum limit.

So, if it is desired to have 415 freeze at time of plan freeze as well, than drafting the amendment to freeze accruals and freeze 415 benefits would be the suggested approach. That is, explicitly address the matter.

Thanks and welcome other views.

A cash balance plan provides a credit which is tested to find out if it's meaningful under 401(a)(26).

I don't see a measurement date for this tied to anything specific in the plan document. Must the date for determining its "meaningfulness" be the 1st day of the plan year or can the last day of the plan year be used instead?

studying for the ASPPA DB exam and am not sure what this means & when it may occur:

the book is referring to reasons that an employee is considered as benefiting for coverage purposes if a premium in not paid for specific reasons. One of the reasons given is:

"The benefit previously accrued by the employee is greater than the benefit that would be determined under the plan if the benefit previously accrued were disregarded."

Your help is appreciated!

If you change the look-back month on line 21(b) --

(1) Do you check YES on Line 24? (If yes, how do you justify?)

(2) Do you check YES on line 25?

Thanks for all responses.

My boss did a contribution calculation for a sole prop uni-k, and now I am left to complete (ir print) the 2010 valuaiton. The plan's doc says comp is 415c3 with no exclusions (she did the document also). The comp that is reported in the system is $24,000.00. The deferrals reported are $22,000 (with an age reported as 50 for 2010). Boss calculated a profit sharing allocation of $4800. This leaves a total of $26,800 in total contributions for the year. This is more than the person's comp for the year. I think that is why I am getting the message. thoughts? We have Datair, so I am also going to post this on their message board to see if maybe it's a glitch and something that can be ignored. This is the first year for the plan, so no 5500 filing is needed, due to the amount. Thanks for your thoughts in advance!

I have been working for a group benefits brokerage for about seven years now, and I am thinking of applying for some in house jobs as a Director of Benefits.

My experience at the brokerage house includes all aspects of rfp, selection, design, implementation and communication of all types of employee benefits and wellness programs. However, I have never done the HRIS stuff, although I am a quick learner.

I have my CEBS and interview well but am curious if anyone has made the jump, if they have some advice as to how I should portray my experience. Also, if any inhouse people who have hired for fairly senior benefits jobs, do you have any advice for me to make the jump. I really don't want to start at the bottom of the benefits chain in house.

Thanks