Company A acquired Company B - Stock Purchase

Each passed coverage at the time of acquisition. Plan has taken advantage of the Transition Rule. The transition rule ends 12/31/2023.

As of 1/1/2024 the employees under the prior company will know be enrolled in the surviving plan.

Company B will be a participating employer in Company A's Plan.

The recordkeeper of Company B will not liquidate the assets until 1/15/2024. Funds will be transferred to Company A's plan.

Question -

The fact the assets transfer after the end of the transition period does not negatively impact the transition rule - correct?

The transition rule relates to the 410(b) testing and transferring the assets after the end of the transition period should not be an issue.

Have a scenario where an employee became a partner of the firm sponsoring a 401(k) plan on 1/1/2022. However, they became sick just before 1/1/2022, and left the firm 3/15/2022. During 2022 they worked 0 hours but had $86,000 of ordinary income also considered self-employment income. Would they be entitled to a 2022 SHNE contribution for 2022?

As an employee, she was eligible for the plan.

Apparently, the firm paid her disability payments of $86,000 between 1/1/2022 and 3/15/2022. 

I know there cannot be an hours requirement (like 1,000 hours etc.) to receive a SHNE contribution. Just wonder if someone working 0 hours would even be considered eligible to receive a SHNE contribution. The plan document does not seem to address this.

Thanks.

My firm was recently contacted by Winklevoss.  They advised us our license fee would be increasing by 50% effective 1/1/24.  Has this happened to anyone else?

This is really a screwed up mess.  When I say 'he' I am referring to the employee spouse and 'she' will be referring to the non-employee spouse.  Anyone else I refer to, I will try to be clear about who I am talking about.  The plan is a multi-employer defined benefit pension plan through a union.

After a 20 year separation, she agreed in Court to her portion being one half of the 'earned amounts' from the time of marriage to the separation. The earned amounts for each of those years were read in Court from a pension statement from that time period, by his attorney, so everyone understood she would not be getting her portion based on the current rates, but at the rates as of the separation.  The Decree left out the amounts for those years, but it does say 'earned amounts'. 

When he turned 60, his disability from his pension was to convert to regular pension, but the QDRO was not in place.  She said she did not have the money to get the DRO drafted.  He then went to her attorneys office to pay the amount she told him it would cost.  He did this in April, trying to keep his benefits from being suspended. 

Two weeks later, he called that office to see if it had been drafted.  The paralegal drafted it at that time, using an example she found on the plan website and plugged in the information.  The DRO that was submitted used the formula which will calculate her portion using the 'current' rate x 1/2 of a fraction, the numerator being the number of months of credited service from marriage to separation and the denominator being total number of months of credited service.  Which is understandably the normal way of calculating the AP's portion.  However, the agreement was half of those earned amounts that were read aloud in Court.  She would receive that amount each month for the rest of her life. 

The Decree left out other vital information, including whether she would receive her portion as a shared payment method or a separate interest.  The QDRO states that the method is a separate interest.  I believe it sounds like it should be a shared payment method because the monthly amount is basically already determined, but I definitely don't know enough about pensions and QDRO's.

After it had been approved and he realized the current rates are used, entitling her to around $300 more per month than what she agreed to, he told the paralegal it was wrong (his attorney in the divorce action would not respond to pleas for help, and when he did finally respond, he said "just let her have it all and when she dies, get it back", so he communicated directly with her attorney's office  pro se). The paralegal was making minor corrections to send it back to the plan admin for approval again, then all of the sudden, the paralegal told him that they were spending too much time on something they had not been paid for and that what he had paid was their client's balance that she owed from the Hearing. 

The paralegal then sent it to the Judge for signature, just as it had been approved, and for it to be filed.  It did not have signatures of either of the two parties. 

He never received a filed marked copy and neither has the plan administrator.  Recently, after many ignored attempts to find out why it had not been sent to the plan administrator, the paralegal finally told him that they sent it to the her to obtain the identifying information information on him (they already had that), along with hers and for her to send it to the plan administrator herself since she refused to give that info to them. 

That was shortly after it had been filed on July 3 and she has been sitting on it ever since.  Who does that? 

So even if he agreed to the terms of the QDRO, he is still going without his money because of her and her attorney.

We don't know if the Order would even qualify if amended to state the actual terms of the agreement.  The transcript proves what was agreed to. Her attorney would not order the transcript, so he did.  Both divorce attorney's obviously had a lack of experience in pensions and QDRO's. 

Are there any provisions in the laws that afford him any rights to proceed with applying for benefits, without her portion being considered, because she is the reason his benefits were suspended in the first place.

This could go on forever!  Seems like there should be something he can do to start receiving his benefits. 

I apologize if some of this is off topic.  A little back story was necessary.  Any advice would be much appreciated.

Apologies as I'm not sure this is the correct place to post this question but figured folks watching this board would have some good thoughts as you usually do.  Apologies too for the long fact pattern but figure the set up is needed to capture the predicament.  

Client / Seller ( founder / owner) sold her private company to large company earlier this year in an asset deal.  Deal has closed and seller received funds now held in her shell company.  Business had 25 or so employees who all were hired by Buyer and are now employees of a sub in Buyer's group. Seller did not provide any transaction or sale bonuses to employees at closing--had no plan / contractual obligations to do so and failed to build bonuses into the transaction (whereby part of the purchase price might basically have been earmarked for employee bonuses to be paid out by Buyer as part of a post-closing bonus / retention plan, etc.). 

Seller regrets failing to arrange some sort of bonuses and feels strongly about getting something to former employees.  Seller would like to do that in a tiered way so a few very long-term employees get significant amounts.  Some of those individuals are old enough and the anticipated bonus amounts large enough they might result in individuals leaving buyer or retiring if paid all at once. Other, younger employees would still get meaningful bonuses but likely not career-altering.  All former employees would get some amount.

Seller is generous and willing to do this out of proceeds however works but does not want to have to pay tax on the deal proceeds and then pay them out without any deduction and with recipients also getting taxed on the payments.  Seller has thought about just taking cash when distributed from company and making "gifts" to the former employees over some period of time.  Seller would generally be ok doing that but understands the risk such "gifts" to former employees may get characterized as taxable compensation if ever audited.

Buyer is not really interested in helping Seller with her issue or opening the terms of the deal back up.  Seller wonders if there could be a deferred compensation plan of some sort set up by the Seller Company with the bonus amounts contributed to an irrevocable trust and the bonuses distributed over a period of years to the former employees on a schedule the Buyer would not object to as potentially impacting employee retention (e.g., plan would provide for $75,000 per year over 4 years provided employee remained with Buyer rather than giving $300,000 at once) with all amounts due accelerated upon death or disability.  Seller would be fine in having the amounts contributed to trust so they never revert back to Seller and any forfeitures would get allocated among remaining employees and any ultimate remainder (in highly unlikely event there was no remaining employee at the end of 4 years) going to a charity.  In short, Seller would be ok setting up as a completed transfer never to receive any portion back.

While intriguing, it is unclear to me Seller's company would be entitled to an immediate tax deduction (this year) on the amount transferred to an irrevocable trust for distribution to former employees over multiple years.  And, even if that did work somehow, it seems such an arrangement would clearly fail to qualify as a top hat plan since it would cover all former employees (few of whom are highly compensated or management employees).  Seller is not really interested in setting up anything governed by ERISA (if that could even be done) for covering former employees.

Sorry for the long fact patter but hoping somebody may have seen a similar situation and come up with an easy or simple solution that may work.  Thanks for any thoughts. 

Suppose you have a 401(k) plan that is sponsored by a partnership of corporations. Each corporation then adopts the plan to become a participating employer. 

This is often the case with a group of physicians. 

If each corporation only employs one physician, is that physician automatically considered a key employee because he/she owns 100% of their corporation? What if they own 100% of their corporation but their corporation only owns 4.5% of the partnership? Does that then make them a non-key participant?

Thanks!

Suppose you have a Safe Harbor 401(k) Plan sponsored by a partnership with 12 partners and 6 employees. The plan has a December 31 year end.

The plan provides a 3% Safe Harbor Non elective contribution to only non-key employees.

Suppose a non-key employee becomes a 5.5% partner in December (i.e. they are only key for one month of the plan year). Would they be required to receive a 3% Safe Harbor contribution for that plan year?

Thanks!

For off-calendar year plans that use anniversary year for the first eligibility computation period (ECP) and plan year thereafter, when is the first date an employee could become eligible as a LTPT employee?  Example:

·         9/30 plan year end, ECP switches to PY after the first ECP, semi-annual entry for LTPT EEs

·         Participant hired 7/1/2021.

·         ECP 1 = 7/1/2021 – 6/30/2022

·         ECP 2 = 10/1/2021 – 9/30/2022

·         ECP 3 = 10/1/2022 – 9/30/2023

·         Assuming Participant had at least 500 HOS in each ECP above, should this participant have entered on 10/1/2023?

Do off-calendar year plans need to use anniversary year for 2021 - 2023 to avoid this result?  Just thinking about SECURE 1 interim amendments, which many have already done!

SECURE says: (b) EFFECTIVE DATE.—The amendments made by this section [112] shall apply to plan years beginning after December 31, 2020, except that, for purposes of section 401(k)(2)(D)(ii) of the Internal Revenue Code of 1986 (as added by such amendments), 12-month periods beginning before January 1, 2021, shall not be taken into account.

Presumably, that means 12-month periods (ECPs) after 12/31/2020 DO count for LTPT purposes.  

Strange situation. Consider a self-employed husband and wife, each deferring $19,500 (2020) Their compensation turns out to be $65,000. Oh, and they have an employee that should have been eligible 7/1/20, but was overlooked an that was the only NHCE. It's too late for a refund, so a QNEC is required. The HCE ADP percentage is 64.93%:NHCE is 0%. 62.93% QNEC would be over $28,000. This would be higher than the §402(g) limit.

My inclination would be to limit the QNEC to $19,500, but I can't be sure that this is right. A seemingly paradoxical situation is that had the NHCE deferred $19,500, it still would not pass ADP.

Is there a way out of this dilemma?

We have a client with a 401(k) plan and a participant wants to take a $50,000 loan which he is eligible to do. He also has a second job that is totally unrelated to this client and that job has a 401(b) plan that allows loans. Can he also take a $50,000 loan from the 403(b) plan? I cannot find anything that says he can't but I might be missing it. 

Hi all. Section 326 of SECURE 2.0 regarding terminal illness was effective December 29, 2022, and exempts benefit recipients from the 10% early distribution penalty if they have a terminal illness as defined in Act. They also can repay the distribution under the same terms that apply to the qualified birth or adoption distributions. The Plan Administrator is required to get a doctor's certification providing that the participant meets the statutory definition. IRS has not released any guidance on this. Are your plans administering this? Have your plans been amended for this? Do you intend to amend your plans for this? Any thoughts/experience on this would be welcome. Thanks!

I've been in this business for 25 years and I starting to read about and experience clients being stonewalled trying to rollout or take distributions from some major 401k players. I hesitate to name names but I'd like to know who else is seeing this or having trouble helping with or seeing participants struggle with getting their money out when there aren't any significant complicated reasons. 

Fidelity can do it over the phone in 5 minutes and people are taking more than 6 months to get a rollout (rollover/distribution) with other companies. 

Anyone having this issue with a record keeper or custodian or any other financial institution?

My client (company A) acquired a company (company B) in 2021.  2022 was the final year of B's 401(k).  Since it was a SH plan with a generous plan design, ERISA counsel told us we could not merge the plan until end of year, 2022.  Totally fine.  Blackout started for participants on 12/28/2022 and the final asset transfer happened on 01/05/2023.  

Are we able to file the 2022 5500 as the final 5500 and mark that all assets have been transferred?

I have a client who has a 401(k) in a PEP plan.  They want to leave the PEP and transfer their existing employee balances to their new 401(k).  Can they do this without triggering a distributable event?  In short...they just want to escape the PEP and have their own standalone plan without allowing their employees to withdraw their existing funds.  I was assuming they can...but wanted some thoughts on this.  Thanks!

I'm taking over a client and they are looking to terminate their existing, traditional Defined Benefit Plan to instead utilize a Cash Balance Plan moving forward.  I know the limits are lifetime limits, etc.

The question is, are they allowed to terminate one and open the new CB Plan within the same year?  Someone is telling them that they can't, so I wanted to double-check.

Thanks!

Background

403(b)(9) non-electing church plan

The employer did not send in May and June (2023) employee deferral contributions timely. 

The deferrals were deposited to the plan in mid-August 2023.

Question

I was looking through RP-2021-30, .05(9) that states: 

Safe harbor correction methods for Employee Elective Deferral Failures in §401(k) plans or § 403(b) Plans. (a) Safe harbor correction method for Employee Elective Deferral Failures that do not exceed three months. Under this safe harbor correction method, an Employee Elective Deferral Failure (as defined in section .05(10)) can be corrected without a QNEC for missed elective deferrals... [if the stated conditions are satisfied]

Are late deferrals that were deducted but not sent timely to the plan included in .05(10)? I did not notice them explicitly mentioned so I thought I would tap into the wisdom abound on this site! : D

It will be a sizeable correction if there is a need to adjust for earnings, so I want to be sure there is not a safe harbor "out" before the process is started.  TIA

Can an ESOP contain a provision allowing the plan sponsor to elect in its sole discretion to diversify a portion of participants' accounts (as long as the diversification is nondiscriminatory and applies equally to HCEs and NHCEs) and buy back the shares? 

I have been unable to find any legal authority on this either way. Maybe I'm overthinking it? I'm aware of the authority on rebalancing participant accounts, but don't believe that would apply here, and most information on buy backs speaks to buying shares from terminated participant accounts only. 

Thanks in advance.

So I have a plan sponsor come back to tell me that their plan excludes interns (which it does) and she is asking if the interns they have would be considered Long Term Part Time Employees.

So this is a good question.  These interns are W-2 employees.

I would think that we cannot exclude interns, unless they work less than 500 hours per year in the look back years?  I have no clue who they are or what hours they have worked, she only said "we do exclude interns and our interns stay on forever..."

Would interns fall under the "long term part time employee" category, or can they still be excluded?

Administer a small defined benefit pension plan that is sponsored by a corporation. The first plan year was from 10/1/2022 - 9/30/2023. The first plan year valuation was done on end of year basis.

Their CPA changed the corporation year to December 31, 2023 from September 30, 2023.

It makes sense to keep the September 30 plan year. However, we would need to change to a beginning of year.

Is there automatic approval when switching from end of year to beginning of year? 

Thanks.