Can a covered entity leave a voicemail with PHI on an individual's home phone? If so, can you point me to some guidance?

Looking at a 403(b) plan where most participants elect to defer a static amount rather than a %. Is there any guidance on how to allocate the final paycheck to deferrals, insurance, etc.?

For example, employee A has elected to deduct $100 from each paycheck which includes $50 for 403(b) $10 for dental, and $40 for health. Employee A is terminated, and final paycheck is < $100. In what order are the contributions made?

Also, if it is a Plan Administrator's practice (though not in the Plan Document) to simply terminate 403(b) deferrals prior to the final paycheck, could the Plan Administrator be liable for the contribution that was not made (for the final paycheck)?

Thanks for your help, this website has been immensely helpful.

This is a good one. ERISA plan. Client wants a discretionary last day rule for matching contributions - something like, "Employer reserves the right to make a matching contribution only for folks employed on the last day of the year."

1. I say no way, either it's impermissable discretion under 1.411(d)(4) or not a definite allocation formula, probably both.

2. Furthermore, even if such a provision was permitted, when would the decision about whether or not to impose the last day rule have to be made? Before the plan year starts, I would think, since there's no hardwired hours requirement or last day rule. I guess you could make an argument that the discretionary last day rule is a last day rule for purposes of timing the decision, but that's pretty circular.

Anyway, I'm good with "no," but I'm not really finding clear guidance on this, and I'm hedging just a smidge. Anyone got any thoughts on it? Thanks.

Hello everyone

I have a client who would like to take a distribution from a DB account. he is in his 30s, but is fully vested in the plan. My initial reaction was that it was not permissible under any DB plan to take a distribution before the normal or early retirement date. However, someone recently told me they were cashed out of a DB plan a while ago. Anyone know if this is in fact an option?

A section in the plan says that a "A participant whose employment is terminated on account of resignation or discharge before meeting the eligibility requirements of Normal (or Early) Retirement will have his benefits deferred to his Normal (or Early) Retirement Date, subject to the provisions of 2.5.2, unless otherwise elected in Part II.G.3."

Under part II.G.3 of the Adoption Agreement, box "b" is checked, which states "Distributions may be made at the participant's election within a reasonable period following the participant's date of termination of employment."

So it seems that distributions can be made prior to reaching a specified retirement age???

By the way, the plan is a Bender, LLC Non-Standardized Defined Benefit Pension Plan Basic Document #2. I've heard some people on here talk about prototype plans. This is my first experience with them, so I wasn't sure if it would be helpful to point out the plan.

Hello

How does a partial plan termination impact a profit sharing allocation for that same plan that has a last day employement requirement? Are the participants eligible for the profit sharing due to the last day requirement being met due to termination?

Does anyone see a problem with having a match of 125 cents on the dollar counting deferrals up to 5% of pay?

If someone defers 5% they will receive a match of 6.25%.

If a plan is Safe Harbor and is doing a true up, can they eliminate terminated participants from the true up? Would they be allowed to implement the last day rule even if they are a true safe harbor?

Can someone very briefly summarize what are the '402(g) limits' in a 403b plan?

Say a one participant plan wants to defer $22,000 for 2010 (over age 50).

My understanding is that if his compensation is $22,000, he can defer 100% of his pay or $22,000 to the 401k plan in lieu of receiving his compensation in cash.

Does that make sense?

How would he pay his employee FICA taxes?

Or should the maximum deferral be 22k less FICA taxes in this case?

Or could he pay FICA taxes out of personal funds?

thanks

A one participant plan was underfunded at plan termination.

The plan was not covered by PBGC.

Plan assets were distributed to the extend funded as provided for per 411(d)(3).

IRS sends letter saying that they need a signed "election to forego benefits" statement as per PBGC 4041.21(b)(2).

My understanding is that a non PBGC plan can simply pay benefits out to the extent funded and the statement the IRS requests is not applicable.

Any views? Am I missing something?

Thanks

We are a law firm representing a plan sponsor. The engagement letter is with the plan sponsor. The firm sends a bill to the plan sponsor who reviews it and occassionally reimburses itself from the trust to the extent that a fiduciary determines some portion of the legal expenses are "reasonable adminstrative expenses". The plan sponsor wants to know why the law firm is not issuing a schedule C for indirect compensation. We don't want to issue a Schedule C because the firm is not a plan service provider. Is anyone one else dealing with this? thanks

Employer in construction industry participates in a multiemployer plan and has a large unfunded vested benefit of around 2 million. Employer also owns 3 other businesses related to construction (one is a realty company that leases property back to the union shop), but the employees who do not participate in the multiemployer plan. Employer is in the construction industry and wants to close down his union business and possibly all three. Owner has been offered opportunity to take a salaried position at one of his competitors. He wants to sell the property and other assets to his competitor (arms length unrelated), but does not want to trigger withdrawal liability.

If owner/employer shuts down his business and sells the building and equipment to an unrelated employer and ends up working for him, will this trigger a complete withdrawal resulting in withdrawal liability payments? The competitor is in the same state (maryland.

THANKS!

Participants owns home but wants to sell it to buy another. The new home will be her principal residence. Participant wants a hardship distribution for the down payment on the new home.

The plan only allows hardship distributions for safe harbor reasons.

Any reason this couldn't qualify?

I'm wondering if there is a way to have our EE's STD and LTD benefits non-taxable to them. We the employer pay the premiums. Can i report the employer paid premiums as imputed income for each EE in order that their benefits, when used, would be tax free?

Does this fall under ERISA?

Pls. advise!

Christy

A 401k plan was not restate yet for EGTRRA.

What would IRS do if submitted now?

Is it best to restate and not submit for DL?

FYI It is a pre approved Sungard Relius plan doc.

Any other suggestions?

Thanks.

Has anyone prepared the 2008 and/or 2009 Schedule B or SB filing for an Eligible Charity Plan? I understand they have the option of operating under pre-PPA or PPA rules for 2008 but must be on pre-PPA rules for 2009. Does anyone know of any guidance on filing the Schedule B or SB for either year considering the E-filings requirement for 2009? Thanks.

Will attempt a short story. State of California

Jan 09 Petitioner negotiates, prepares, and submits QDRO to court. QDRO excludes salary increases post separation for calculation of Petitioner's share of benefit

May 09 Plan (U.S. Office of Personnel Management) accepts QDRO, performs calculation and begins making payments

Jan 10 Petitioner declaration affirms post separation salary exclusion

Jun 10 During trial on other matters, expert witness testifies that former spouse was entitled to enhanced benefit under California law (time rule)

Jun 10 Judge rules that spouse did not negotiate away entitlement to enhanced benefit (which includes post-separation salary increases in calculating FAS) and rules that Petitioner is entitled to enhanced benefit

Aug 10 Petitioner prepares amend QDRO to modify original QDRO, with exclusion deleted. Judge is about to enter the order

Am prepared to appeal on grounds that Petitioner waived post-separation salary increases before and after original QDRO was entered and that QDRO was in place and in force for over a year without complaint or objection by Petitioner

Additional fact: Unlike many ERISA plans, federal employees are required to continuously contribute to the plan throughout their employment.

Questions:

1. Did the judge err in ruling that Petitioner is now entitled to enhanced benefit?

2. Was the negotiated QDRO and the declaration affirming the exclusion sufficient documentation of the Petitioners waiver?

3. Does their seem likely grounds for appeal based on the record as stated above in the summary

Collateral Questions

Is there any means to shift the jurisdiction to another state since I live on the East Coast and cannot find competent counsel in California from 3000 miles away?

Any recommendations for attorneys who can support an appeal in Alameda County, California?

Thanks for the comments.

Is a schedule C needed for TIAA-CREF plans? Do they have a Schedule C report?

I'm correcting a failed adp from calendar year 2008 using the one to one correction method. The 5330 I provided previously was never filed.

What's the requirement now for the 5330? I'm past the due date already so do I file one for 2009 and roll up the return amount plus interest or is there some other requirement to file the 2008 form late and an additional form for 2009?

In TIAA-CREF's Auditor FAQ's (which appears to be drafted before Advisory Opinion 2010-01A) TIAA says that some plan administrators are taking the position that terminated participants can be excluded from the participant counts. This is in addition to the DOL's transitional relief regarding contracts as of 1/1/09.

Are others using this exclusion? It doesn't sound like the subject matter of 2010-01A is directly on point with this, but when I noticed that properties of TIAA's pdf document indicated that it was last edited in January 2010, I thought I should make sure.

It's the last question on page 9 of the attached.

tiaa_cref_faq__s.pdf