I have a Safe Harbor Match Plan. The ER is terminating all the employees. The employees will then become employees of another company that the owner has no ownership in. The owner will remain as a consultant/broker and will not be an employee of the larger company.

1. Since the employees are being terminated is there any notice required?

2. Plan will fail testing if it terminated now - can they keep the plan in place through the end of the year with the owner being the only employee and getting the SH match to year end and then terminate the Plan.

3. Employees will be doing the same job that they were = but will be filling out applications and will become employees of this larger company. The preious owner will be providing space for the employees. I do believe that the larger company does offer a plan.

Anything I am missing here?

Plan is updated for EGTRRA and PPA.

Thanks

Pat

I have a DB plan with a termination date of 12/31/07, because of many reasons, including not hearing from the IRS, the plan still had assets as of 12/31/08. Must I prepare an Annual Funding Notice instead of a Summary Annual Report? If so, any ideas how I do that without a valuation report?

Hi there -

We are completing the EEO-1 report for the first time this year.

We were told that it is recommended that you answer the question of ethnicity and race based on self-identification. However, if you are not allowed to ask these questions on any employment application or other form, how do you get the answer to this question? I'm afraid of making people uncomfortable or for starting a Big Brother type scare by putting out a voluntary survey.

Is this info on any HR or governmental form or document that I missed?

Many thanks.

Does anybody have any suggestions on how to handle an employee who has 2 loans outstanding from a 401(k) plan and has found himself in over his head and cannot afford to make the loan payments? The loan repayments are currently set up as payroll deduct and he is asking for the employer to stop loan payments and he'll accept the loan default. He does have a commission coming to him in January 2010 which he said he'd put $4,000 - $5,000 on the loans, but this won't help him right now. He's currently paying $384.24 every two weeks on his loans! Neither of these loans are at a really high interest rate - one is at 6% and the other is at 9.25%, so even reducing the interest rate by refinancing wouldn't help a lot. I'm looking for ideas to keep him from defaulting on the loans (which really can't happen since the loan payments are payroll deducted). Thanks!

I have my first participant request to roll 100% of her Plan balance into her Roth IRA account where her plan balance contains both pre-tax and roth monies. The plan is with one of the bigger 401k vendors, but I don't see the option for me to code the pre-tax portion as a rollover to the participant's Roth IRA. I have emailed the vendor for instruction, but wonder what others are doing.

Also - I found the info in Pub 590 regarding rolling from a qualified plan to a roth IRA somewhat confusing. Does the 20% mandatory Federal w/h still apply to the pretax portion?

any assistance appreciated.

I haven't been able to research the specifics on this yet, but off the top of your head does anyone know if there is a PT exemption for this?

The sponsor is an insurance company. The plan is invested in funds of the insurance company and the sponsor receives commissions based on those investments. It just seems "wrong".

In 1998, a client sent a letter (I have a copy) to the bank with instructions to make future plan investments into the XYZ Fund. The bank moved current money into the fund, but did not make any future investments into the fund. The client recently realized that his instructions weren't followed.

Aside from the fact that the client should have picked up on this 11 years ago, doesn't the bank bear some responsibility? The earnings loss is significant.

I am exploring general planning issues that need to be considered when you have a physician, employed by a university and contributing to their 403(b), and who also has solo consulting practice and wants to install a Keogh plan to maximize contributions/benefits for the next 5-10 years until age 65. We are looking for more than the normal 49k contribution limits so I am thinking of DB alternatives?

Question: Are there any glaring red flags that would prohibit or substantially diminish the value of a DB arrangement for this individual (no employees, just the owner)?

Are there any publications or articles that discuss features of solo DB plans and when they are suitable vs. when to avoid. Most clients have 403(b) arrangements and may have an old Keogh PS/MPP plan. I thought exploring the DB option for clients who fall into that category would make sense.

Any general advice or guidance, resources, etc will be greatly appreciated.

So the PBGC makes the Blue Book from the annual Enrolled Actuaries Meetings available on its website free of charge. Does the IRS do the same with the Gray Book? If not, is there free online access to the Gray Books anywhere? I suspect that if there were, I would have found it by now, but I thought I'd check with the knowledgeable folks here.

In a defined benefit plan is it okay to have the participant pay the distribution fee out of his/her accrued benefit? For example, if the lump sum was $1,000 and the distribution fee is $100, can the participant only be paid $900? My feeling is that this is not okay since you are now paying the participant less than their accrued benefit.

Does anyone have any thoughts on how to handle uncashed checks from a dependent day care flexible spending account? Specifically, I am wondering whether those funds escheat to the state, and if so, which state's law will apply (the state where the account is located, the state of the payee, the state of incorporation of the payor, the principal place of business of the payor all seem like possibilities).

Facts: Plan's actuary mistakenly changed the formula in a DB plan from a 'step formula' to a richer 'integrated formula' in 1996. Plan continued calculating and paying benefits under old 'step formula' until it discovered the problem in 2002. It then applied for EPCRS correction; the IRS granted it. So in 2003, the sponsoring ER attempted to 'revise' the documents retroactively.

Some EEs, who acknowledged they did not know of much less rely on the error until 2002, filed suit for the richer benefits.

The 4th Circuit held that the ER had not put on any evidence of the EEs' intentions at the time of the scrivener's error, and therefore mutual mistake (a contract law doctrine) would not apply. For a unilateral mistake, there had to be some fraud by the other party. The mistake was not mutual; the EEs did not make the same mistake. The mistake was unilateral by the ER, but there was no fraud by the EEs.

The 4th Circuit rejected the ER's claim that the IRS approval per EPCRS ought to allow the ER to reform the plan documents:

the IRS determination that inclusion of the Integrated Formula in the 1996 plan was a scrivener's error, thus justifying an equitable reformation of that provision. Put simply, however, the IRS determination is neither helpful nor controlling in this appeal. A primary purpose of the IRS program—and the only purpose of the IRS ruling on the 1996 plan—is to authorize an ERISA plan to amend its provisions without losing the tax exemption provided for by 26 U.S.C. § 501(a). Notably, such IRS proceedings are ex parte, predicated only on the submissions of the ERISA plan seeking relief. The IRS determination thus only resolves issues between the IRS and the ERISA plan—it is not a formal adjudication, and it does not impact on the relationship between an ERISA plan and its beneficiaries. Even though the IRS may decide whether to tax an ERISA plan, it is not entitled to alter the contractual rights of a plan beneficiary. Although we accord great deference to the IRS with respect to tax policy and regulation, the judiciary retains its dominion in ERISA civil actions.

The appeals court gave great importance to what the documents actually provided (error or not) because of the congressional intent behind ERISA that each EE "may, on examining the plan documents, determine exactly what his rights and obligations are under the plan."

So it appears that a scrivener's error correction, even if allowed by the IRS, will not save the day for an ER facing claims from EEs. An ER wanting to put the matter to rest completely might want to consider a declaratory judgment action, which would require notice to all the affected EEs. Alternatively, giving the benefits as erroneously promised will solve the matter as well (with an EPCRS filing because the greater benefits were not provided when specified under the plan).

Cross v Bragg, 4th Cir Docket ## 07-1699, 07-1755 and 08-1190, 7/24/2009.

For a governmental 457 plan, is the employer likely to find a plan administrator willing to do the hardship/unforseeable emergency determination?

This employer a) doesn't like privacy issues which often turn up due to information contained in the requests for hardship distributions, and b) would prefer to have a third party making decisions to avoid any perceived favoritism or differences in treatment.

I’m posting this to get some input on behalf of a client.

He has a defined benefit plan which was opened in 2001. This is a small plan (5 participants) and the client is a dentist. The plan was opened and administered by the same actuaries company. He is now terminating the plan and received the paperwork to begin the process. Notice was already given to the participants (15 days before the proposed termination date), amendments were signed, etc.

Here is the question:

With his termination papers he was given an option to terminate with or without an IRS letter of determination. While the paperwork stated that the optional determination letter process is expensive and lengthy, it suggested that he would have to accept some significant responsibility if he elects to avoid the letter process and then gets audited. He discussed this with them, and they basically told him that they discuss the determination letter option as a matter formality, but (off the record) they don’t really advise it due to the additional costs and the fact that the determination letter is basically an audit, so if he gets audited later he would be in the same position as if he elects for the determination letter now. But he may avoid the random audit, if he forgoes the letter, and save some money.

He asked for my opinion and I suggested that he pays the additional fee (roughly $2,500) to have the determination letter since the cost would be tax deductible and he has nearly $900k in the plan, most of which will be going to him and his wife.

He sent in the termination paperwork to the actuary, and was shortly contacted by them to see why he would like to pursue the letter. He explained his concerns and was told that it’s a waste of money and that 99% of theirs client opt not to get the letter. He asked them if there is anything wrong with the plan, they replied that to the best of their knowledge everything is perfect and was signed off by the actuary.

He just called me again asking for guidance on whether to pursue the letter or not. This latest follow-up by them is actually making me more concerned about having him to waive the letter and basically assume future responsibly if it gets audited and some problems with the plan are found.

It seems to me that if there are problems found with the plan during the determination letter process, the actuary would be held responsible, but I don’t have experience with this regards.

Any input would be greatly appreciated, particularly with regards to whether a letter of determination is advisable for him to obtain and with who is responsible should issues arise during the determination letter process vs. forgoing the letter.

Thanks for your time,

J

.

Our Special Tax Notice needs to be updated for the Roth IRA rollover language. Is there a new "model' notice available anywhere that has this language? Thanks and welcome to Monday!

Employer has learned of loss of major contract and is facing severe cash crunch. It currently matches 401(k) deferrals 100% up to first 3% of compensation. Employer needs to eliminate matching contribution effective October 1st. Even though there are only 3 months left, the employer needs to conserve this cash rather than simply start with the 2010 Plan Year.

The 401(k) plan document provides as follows:

"The Employer may make discretionary Matching Contributions. The percentage of Elective Deferral Contributions matched, if any, shall be a percentage as determined by the Employer. Elective Deferral Contributions that are over a percentage of Compensation won't be matched. The percentage shall be determined by the Employer. Matching Contributions are calculated based on Elective Deferral Contributions and Compensation for the payroll period. Matching Contributions are made for all persons who were Active Participants at any time during that payroll period. Any percentage determined by the Employer shall apply to all eligible persons for the entire Plan Year."

I am wondering about the effect and intent of the last sentence. The provisions seem to make very clear that the match is discretionary and thus the employer could set any percentage or no percentage at all for the match at the outset of the Plan Year. However, does the last sentence work to make that discretionary match a fixed match for the entire Plan Year once the match percentage is set / used for the initial payroll period?

I have reviewed several prior posts on this board and other discussions regarding the elimination of discretionary matching contributions mid-year and have not found a discussion of a provision exactly like this one. Those discussions have also frankly left me confused about just how much discretion employers have in reducing clearly discretionary matches given my understanding that plans eliminating or reducing matching contributions must pass current availability testing since participants entering the plan after a match is reduced or eliminated will be entitled to a different rate of matching contributions than participants in the plan the entire year. In addition, my understanding is that such reductions in matching contributions create non-uniform formulas for the plan year and thus will need to pass the general nondiscrimination test in addition to ADP / ACP testing.

We are not worried so much about the plan being able to pass these tests if required under our facts--there are not likely to be many new entrants to the plan nor would I think discrimination in favor of HCEs under our facts would likely be a problem. The phrasing of the plan provisions, however, suggests that the rate of the match must be the same for the entire Plan Year regardless of whether testing concerns are an issue. Thus, it seems to me any elimination of matching contributions for the remainder of 2009 would violate that last sentence and that any amendment of the Plan now to delete that last sentence effective prior to 2010 would be problematic.

I would appreciate any thoughts or guidance.

2 clients received "Application for Extension of Time to File an Employee Plan Return - Approved" from IRS in Ogden UT.

I've never seeen this before. Is this new this year?

Suppose you have a small DB that is less than 80% funded. Can the 100% owner's spouse be paid a lump sum as ordered by a QDRO?

Hello all, I want to open an Roth IRA for my spouse however she is not working as of now due to medical illness. She has Leukemia so I have many questions regarding my situation. I am 37 and she is 36 I just opened the roth for myself this year, I am getting started way late with retirement savings so I need to try to catch up. Would it be in my interest right now to open a spousal IRA given her medical condition?

Thanks all for your help