Is a non-ERISA 403(b) plan subject to Treas. Reg. §2510.3-102?

A church 403(b) plan has failed to submit payroll deductions to the plan for over 6 months. Would the plan need to calculate lost earnings using the VFCP calculator or use an alternative method by using the highest performing fund from the investment offerings under the plan from the date the monies should have been deposited through the date the monies were deposited? Also, would the employer have to file Form 5330 excise tax reporting the prohibited transaction and its correction?

403b plan has a match, whereby you only get a 2.5% if you contribute at least 2.5%. Therefore, they have always told employees the minimum ddeferral rate is 2.5% of pay, thus avoiding nayone missing out on the match.

Is this a problem, or is it OK? The document simply states that the employer can set the minimum contributions.

An ERISA 403(b) plan that excludes part-time employees from making deferrals would fail the universal availability requirements of IRC Section 403(b)(12) and Treasury Regulation Section 1.403(b)-3(a)(3) and would be an operational failure under Section 5.02(a) of EPCRS. Assuming the self-correction period has not expired, the correction for the improper exclusion of eligible employees from a 403(b) plan would be the same as for a 401(k) plan under Appendix A.05 and Appendix B 2.02 of EPCRS, correct?

Or, would this failure be considered "egregious" for purposes of Section 4.11 of EPCRS, and thus require a VCP application under Appendix D to EPCRS?

Plan has tiered matching contribution based on participant's years of service but the match is made regardless of the elective deferral amount. For example, participants with 2 years of service who make elective deferrals to the plan get a matching contribution of 2% of pay, while participants with 3 years of service who make elective deferrals to the plan get a matching contribution of 3% of pay, and so on.

But the matching contribution doesn't depend on the amount of the elective deferrals contributed, so one participant with 2 years of service could defer $2,000 and get the 2% match, while another participant also with 2 years of service could defer $20 and still get the 2% match, even if 2% of pay is more than the $20 deferred. Is it really a match if the same percentage is contributed for deferring participants with the same years of service, regardless of the specific amounts they defer? (It seems like a cross between a matching and a nonelective contribution.) And would this tiered match be subject to some sort of cross-testing, or does the ACP test cover it?

Thanks.

Here's the situation: Particpant A receives a bonus on 1/31/2011 and the company treats the bonus as eligible 401(k) compensation. Particpant has an election in place and the Company funds the contribution to the Plan on 2/02/11. However, under the bonus program, a participant forfeits a prorated portion of the bonus if he or she fails to remain employed through the end of the year. Participant terminates on 3/1/2011. Company decides to remove a portion of the 401(k) contribution that was made out of the bonus under the rationale that the participant did not have a right to the entire bonus b/c he did not remain employed. this seems problematic. Any thoughts?

The regs say that you may not fund contributions before the participant has perfomred the services to which the deferral relates. See treas. reg. 1.401(k)-1(a)(3)(iii)©. If there is a restriction on the bonus, i.e., continued employment, has the particpant peformed the services to which the deferral relates before satisfying the continued employment requirement?

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Based upon a situation a client has - I've been researching and I found an ASPPA ASAP from 2009 in reference to the treatment settlement checks. The article states that there are 3 options: reallocate pro rata to current participants with balances, reallocate per capita to participants with balances or reallocate to affected participants only. It also mentions that the $$ may be used to reduce plan fees if the Plan Doc so dictates.

The article also states that "the settlement fund proceeds should not be used to benefit employers, fiduciaries or other parties of interest, other than through the payment of reasonable plan expenses".

Here is my question: Doesn't the payment of "reasonable plan expenses" benefit the Employer? I'm trying to understand why the payment of fees would be allowed but not using the $$ as forfeiture $$ to reduce the Employer obligation.

First, sorry for the contsant posts on gateway's and testing issues. I am having a nightmare of a time with a large controlled group that froze all but one of it's small DB plans (and such small DB plan is mostly HCE's) and I'm just looking for any way I can to save the client from having to make a large contribution to satisfy the gateway (even more annoying is that without the gateway issue, the regular coverage and benefits tests are satisfied rather easily through aggregation).

Anyway, my main question/issue for this post is as follows:

In order to satisfy the "primarily DB in character" gateway (and thus avoid having to contribute millions meet the minimum allocation gateway) for 2010, I'd have to reflect frozen DB benefits on an Accrued-to-Date basis for a plan that froze it's DB plan on 12/31/2009. Through much research, it appears that the only way I can include the frozen accruals from the DB plan is if the same participants from that plan received a 401(a) allocation in 2010. Currently, the frozen DB group is only getting a match, so I cannot include the DB frozen accrual in my accrued-to-date accrual. However, if this group was to receive a profit sharing allocation, then I would be able to include the total benefit earned (Frozen DB plus new PS) in the accrued to date test. So my question is, can amend the 401(k) plan to provide a very small PS allocation to the frozen DB group (let's say 0.1% of pay for sake of argument) and thus be able to include the DB frozen benefits in my accrued to date accrual, and in turn satisfy the primarily DB in character gateway?

Would the way to do this be to amend the plan (prior to 9/15/2011) to say "provide all NCHE's with a 0.25% allocation for the 2010 plan year" or something as simple as that?

Any help that can be provided is greatly appreciated.

I work in HR at an organization that is a for-profit joint venture between two hospitals. My employer is going to be dissolved. Many of our employees will receive employment at the two hospitals, but some will not have jobs. My question is this: we have an FSA. How is this handled? My employer is not being acquired. It is going to be terminated/dissolved. I am not sure that the two hospitals are considered successor employers. How do we handle employee FSA accounts where money has been set aside but unused for claims?

Thanks.

What do you guys know about being a common remitter, and the SPARK Data Files? We;'ve been asked to propose on this service. Does my question alone indicate that I have no business getting invovled? I read some articles that talk about people doing it in Excel, and others with comprehensive web-based platforms that connect sponsors, fund companies and employees. We're bidding on a very small start-up one.

Can anyone direct me to some research materials reporting on the prevalence of SERPs and other types of non-equity based executive compensation?

Assuming we have a cafeteria plan, can I pay certain employees greater salaries if they agree to opt-out of welfare benefits? For example, one employee has health insurance through her husband's job.

Seems okay to me, but I think that if the employees changed their minds down the road, we would have to allow them to participate in the welfare benefits and we couldn't then reduce their salaries.

Any thoughts would be greatly appreciated.

We have two companies in a controlled group that sponsor separate plans. Both have several hundred NHCEs, but company A has the majority of HCEs. We have to run coverage and I just wanted to confirm mechanics.

Co A plan has 17 HCEs and it is a 401k plan with a safe harbor match.

Co B has 2 HCEs and it is a 401k plan with a Prevailing Wage contribution to virtually all NHCEs but not HCEs.

Company's A's matching arrangement will fail the 70% coverage test so we need to go to ABP test. The plan will pass the safe harbor % stipulated in test 1 of th ABP test. So when we run the ABP, we use 401k, 401m and 401a contributions from both companies. We easily pass due to the very high PWC contribution. Correct or am I missing something?

My client is considering the following plan design. A "brokerage-window" account is an available investment alternative for ALL non-highly-compensated employees, and for those highly-compensated employees who hold the CFA (Chartered Financial Analyst) designation. Although it seems strange to look for a knowledge indicator but not require it for non-highly-compensated employees, the employer believes that this is necessary to avoid non-discrimination problems.

Leaving aside any questions about the wisdom of this plan design, am I right in guessing that it does not raise a 401(a)(4) nondiscrimination problem because the only persons discriminated against are highly-compensated employees?

Do you agree with the employer's view that 401(a)(4) constrains it not to impose the CFA condition on non-highly-compensated employees? Assume that in this employer's workforce about 40% of NCEs hold the CFA designation, and about 60% of HCEs hold the CFA designation.

Who is responsible for "drafting" these documewnts? We are under the impression that it is the fund company who would sign the documents with the employer. But please respond as though I don't know what I'm talking about, because I kind of don't...

If an employer excludes employees from participating, realizes it, self corrects by depositng the corrective deferrals and match, do they have to report this as a late contribution on the Form 5500 on line 4a?

I wouldn't think so because the employer did not "receive" participant contributions that it failed to deposit (as stated in the instructions).

thanks!

Hello:

My company acquired a portion of another company and we are not taking or merging any part of the acquired company's qualified plan in the merger.

New employees from the acquired entity are being allowed to rollover to our QP, and if they have an outstanding loan, they may rollover the loan as part of the unrelated rollover.

My question is that when we set up the loan in our plan, I do not think we need to load the highest outstanding balance in last 12 months from the unrelated plan, since when I read the loan regulations, the HOB relates to the HOB from our plan(s), not an unrelated plan that we are not acquiring or merging.

Can someone assist in confirming my thought process?

andmik

Participant has submitted a preliminary consult bill for dental bills as a medical bill for supporting documenation on a hardship distribution. However, the previous telephone discussions with the participant have all been about expenses not allowed under IRS hardship reasons. The consult bill is dated the day after our telephone conversation.

I've never had a strectch on the "medically necessary" (as opposed the previously incurred) phrasing of the language before. The supporting documentation in no way shows that the participant is going back to get this work done, does not show that there is an immediate need, does not show an estimated treatment start date. Given the knowledge that I know, from telephone conversations, that the participant is more than likely not going to follow through with the dental procedures, don't I need to get more documentation to support the hardship? More of a commitment letter on the medically necessary since it is just a quote?

Any thoughts?

Two plans merge as of 12/31/2010, "Plan Continuing" and "Plan Eliminated". The auditor wants to report ALL investment types as zero (so no mutual funds, etc). But how should I report the schedule A? I'm having a hard time justifying not preparing the A based on the info provided by the insurance company, including reporting an ending balance. The contract itself will actually continue, it will just be re-registered in the name of Plan Continuing. But of course it looks odd to say "no ending balance" on the H and then an Ending balance on the A.

I work for the TPA division of a company that has a number of other functions. The TPA division is part of the retirement plan and wealth management group that includes both broker/dealer affiliations and RIAs. Although I report directly to the president of the retirement/wealth mgmt. group, the VP of the group is certainly in a position of higher authority than I am within the company. I'm posting my question here rather than ASPPA message board because I don't want my name identified with the question.

Recently one of the VP's plans discovered that they have not been operating in accordance with the provisions of a two amendments, one effective 1-1-2011 adding QACA, the other effective 7-1-2010 adding automatic enrollment. Both amendments specifically called for automatically enrolling any participant who had not completed a contrary election. The investment house that began handling the enrollment forms for them at the time of the 7-1-2010 amendment coded the amendment wrong and only enrolled new people. The client is looking to see how many enrollment forms they have on file from before the investment folks took over this responsibility. The investment house has identified up to 90 participants for whom they have no election on file.

This is a large plan, in the midst of a 2010 audit for their 5500. The auditor has not noticed this, nor asked any questions about the automatic enrollment process yet. I have been instructed by the VP that this is his plan, and I am not to say anything to the client, nor the compliance staff that reviews my work about the 2010 error. He intends to correct only the error for 2011.

I'm looking for something stronger than my own opinion or my possible issues with violating ASPPA's code of ethics, to explain to this VP why he can't just pretend he doesn't know about this.