In the past, the PBGC waived the reporting of missed quarterly contributions for certain small plans. This waiver is kaput starting in 2009.

ASPPA reports, "PBGC's experience is that many plans that did not report missed quarterlies because of the automatic waiver later terminated with unfunded liabilities, and that if missed-quarterly reports had been made, PBGC might have been able to work with plan sponsors to avoid the underfunded terminations."

Does anyone, anywhere, anytime in the name of J. Fred Muggs have even a conjecture of how the PBGC could have worked with employers to avoid underfunded terminations? Presumably, to have an underfunded termination, the plan sponsor's financials must have been in the toilet. Other than expediting the plan sponsor's financial ruin, what could the PBGC have done? And, it presumptuous that it would follow that the plan would not be underfunded just because the plan sponsor made timely quarterly contributions.

A sole proprietor client of mine wants to set up a plan--the only participant will be himself (he doesn't employ any common law employees). His attorney (non-ERISA) questions whether he can be the grantor of the plan's trust, the sole trustee and the sole beneficiary. Isn't this a common situation for a sole proprietor. I may not get this all exactly right, but the client's attorney says that if the sole proprietor is the sole trustee and the sole beneficiary that there is a merger of legal and equitable title and the trust evaporates. Does anyone know whether he is right and, if he is, how I should set up the plan? Thanks!

Hello,

We are working on completing Schedule D's for ING plan's under MAP contracts. Does each fund need to be listed on the Schedule D? I am interpreting the ING instructions that you would list the total amount in the seperate account and not list out each fund. ING is not acting as a Direct Filing Entity . . . the other vendors we work with who do not file directly instruct that all of the funds available be listed on the D? What are other firms doing?

Thanks,

IRS National Office issued a favorable opinion letter for 401k prototype (EGTRRA version) that provides:

"If section X of the Adoption Agreement indicates that the 401k Safe Harbor applies, then for a Plan Year as to which a timely 401k Safe Harbor Notice is provided to each Participant, the Plan is treated as meeting the requirements of IRC section 401(k)(3)(A)(ii). If section X of the Adoption Agreement indicates that the 401k Safe Harbor does not apply, or no 401k Safe Harbor Notice is timely posted for a Plan Year, then the 401k Safe Harbor does not apply to the Plan Year."

This is different than the more common language in other prototypes that read in essence that the plan is for a plan year a 401k safe harbor if the adoption agreement provides, not hinging also on whether a 401k safe harbor notice was in fact timely provided for the plan year.

I'm interested in what comments there might be for toggling in and out of 401k safe harbor plan year to plan year solely on the basis of a timely 401k safe harbor notice (or not) for the plan year, if the plan adopts the prototype with the language quoted 2 paragraphs and does not 'amend' from year to year.

Perhaps asked another way, do those that have heard the unofficial comments of IRS representatives that there need also be an amendment think that such applies to all 401k safe harbor plans or just those that use the more common language?

[EDIT: typo]

Hello,

Last year I needed to take out the $20,000 I had put in contributions over the years....I left in the amount that was the profit. I am trying to enter the information on taxcut but it gives me a penalty each time because it is being characterized as an early distribution. I know that I'm allowed to take out the contributions at any time penalty-free. Does anyone know where to report it and how? Thank you very much.

This is a self-funded health plan and some participants are Mexican immigrants. These participants may travel to Mexico during the down season to be with their family. They remain eligible for health benefits during this period and often submit claims once they return to the states. These claims are often in Spanish and the health fund must hire interpreters in order to process the claims. Over the years the cost of interpreting and processing these claims has risen. I thought some Global Benefits practitioners might be able to steer me towards any guidance that may be available for issues like this. The health fund already meets the requirement of having available an SPD in Spanish, but I wasn't sure if there was any other requirements re: processing claims.

Do the various notices going out to COBRA subsidy-eligible individuals have to specify the amount that the individuals have to pay for their coverage (i.e., do they have to give the 35% amount) or can they state the 102% and require the individuals to make the calculation themselves?

I have a situation where a corporation "A" (which has a 401(k) PS plan), has been sold to Corporation "B" and Corp "A" will cease to exist as of March 30th, 2009. The employee's of corporation "A" will become employees of Corporation "B" and will be eligible to participate in Corp

"B"'s 401(k) at this same time (March 31st).

My question is - the owners of Corporation "A" wish to terminate the plan and allow the participants to have the option to eiher cashing out their 401(k) balance or rolling it to another qualified plan. My initial thought is that if the employees have a new (alternative) 401(k) that they are eligible to participate in, we should require a plan transfer of assets and not allow a distributable event. Is there a rule in this situation? Thanks in advance!

It seems clear that when an excess deferral resulting from a 402g violation (deferral in excess of $15,500 for example) had investment losses, the participant must report the gross excess in the year deferred (2008) while the loss is taken on their personal tax return in 2009. However, how is the 1099-R done?

In reading the IRS instructions, it appears that the amount reported on the 1099-R, taxable in 2008, is the actual distribution which has been reduced by the losses. If so, how and where does the participant report the the full excess deferral in 2008?

Any thoughts would be appreciated?

Originally posted in the "Correction of Plan Defects" forum, but appropriate for this forum as well...

First, my apologies for interrupting the NCAA tournament.

A participant in a cash balance plan requested a lump sum rollover to an IRA. The plan custodian cut the check and it was accepted by her IRA provider. Shortly after the check was cashed, however, the participant informed her IRA provider that she had changed her mind and directed the provider to reverse the rollover. The IRA provider wrote a check back to the plan, which, unfortunately, the custodian accepted without mentioning any of this to the employer. The custodian then issued a Form 1099-R, showing that the participant had rolled over her entire account balance in 2008 (notwithstanding the fact that the plan again has possession of the funds).

Nothing in the plan document would have allowed the rollover back into the plan, because the plan does not have rollover accounts.

My thoughts/questions:

(1) One option would be to treat this as a cancelled rollover election, and to issue a corrected 1099-R showing that no amounts had been rolled over in 2008. This seems like an extremely aggressive (if not disingenuous) position, since the check was actually cashed and the amount actually went into the IRA. Does anyone disagree?

(2) A better option (in my mind), would be to acknowledge that a rollover did occur in 2008 and that the plan improperly accepted a return of the funds from the former participant. Presumably, this would be an operational error that needs to be corrected under EPCRS and the amount must somehow get back into an IRA for the former participant. But I'm not clear on how the corrective distribution should be structured... Can this amount properly be characterized as an eligible rollover distribution? Does the amount need to be credited with interest at the plan's stated rate from the date of improper acceptance to the date of distribution? How should these transactions be reflected on the Form 1099-R?

Any thoughts would be greatly appreciated.

.

.

Hi gang:

I'm one of those faceless ex-employees that you all talk about and work hard to keep legal. The horror, the horror .....

I took a Buyout with my Company last September (08). Buyouts where offered to many before the layoffs became inevitable. I took the buyout with a good deal... Company/Cobra subsidized medical for one full (1) year. As I left the Companies HR folks told me that to qualify and get unemployment I was to tell the powers to be that I was "Mutually Agreed Separated". I got unemployment and the lower rate insurance through Cobra.

Now, I got a question. I'm still looking for work and am starting to worry about Health Insurance costs. If after a year I'm still jobless can I apply for some of that subsidized Cobra ARRA 2009 extension ? As I read it in the ARRA literature... The qualifying events for employees are : Voluntary or Involuntary termination of covered employee for reasons other than gross misconduct".....etc, etc I left in good terms.

I figure I was included in the Voluntary part. But can I still get an ARRA extension after the year is up ? Confusing for us mare mortals....

Thanks,

MSG

What laws would a retirement have to have had amended for by the middle of 2007?

Any aspects of the PPA (Pension Protection Act), for example?

Does anyone know of official sources that state one can use plan assets to pay plan maintenance fees, but not to pay audit CAP fees? I tried gpoaccess.gov, but it did not seem to have ERISA online. Does anyone know of any official source reproducing ERISA online?

A small company terminated its plan in early 2008 and distributed all benefits to the 3 owners, who were the only participants in the plan. None of these owners rolled the distributions over; thus they are taxable in 2008. However, one of the owners turned age 55 during 2008 (the others are over 59 1/2). Is this owner subject to the 10% excise tax, or is he considered "separated from service" for purposes of IRC 72(t)?

Any replies would be appreciated, thanks!

A calendar year 401(k) plan failed the ADP tests and refunds were made to the HCEs by 03/15. After 03/15 it was determined the census information was misreported, and the plan actually passes the ADP test based on the new accurate information.

Can we reverse the refund transactions and have the HCEs send back their refunds? What is the recommended course of action in this situation? Thanks very much!

I have a 401(k) Plan that 2008 was the initial year. It has only one participant, the business owner, who makes well over $230K and is over age 50. During the year the client deposited $57,000. Since the IRC 415 Max is $51K (with the Catchup), there is $6,000 that exceeds both the deduction limit and the maximum individual allocation. I have two concerns that I do not have complete confidence with my conclusions.

First, I understand that under this Plan the Maximum Allocation under 415 is the Maximum Deductible, not 25%. If this is correct, the excess $6,000 is subject to the 10% excise penalty tax on nondeductible amounts. Am I missing something?

Second, the Plan allows a 415 excess to be corrected via a refund of employee contributions. Does this avoid the 10% penalty tax, and would that create a problem with the application of Catchup?

I am almost 100% sure on the Maximum Deductible Amount being the $51K. While less sure, I also believe the 10% excise tax will apply in all cases. I don't think a refund of employee contribution avoids the penalty tax as the Pension Answer Book says "...an excise tax imposed on the employer equal to 10 percent of the portion of any contribution..". I assume that "any" means any. If so, refunding the $6,000 would not avoid the penalty since the tax applies whether the contribution is employer or employee.

Any insights will be appreciated.

First, my apologies for interrupting the NCAA tournament.

A participant in a cash balance plan requested a lump sum rollover to an IRA. The plan custodian cut the check and it was accepted by her IRA provider. Shortly after the check was cashed, however, the participant informed her IRA provider that she had changed her mind and directed the provider to reverse the rollover. The IRA provider wrote a check back to the plan, which, unfortunately, the custodian accepted without mentioning any of this to the employer. The custodian then issued a Form 1099-R, showing that the participant had rolled over her entire account balance in 2008 (notwithstanding the fact that the plan again has possession of the funds).

Nothing in the plan document would have allowed the rollover back into the plan, because the plan does not have rollover accounts.

My thoughts/questions:

(1) One option would be to treat this as a cancelled rollover election, and to issue a corrected 1099-R showing that no amounts had been rolled over in 2008. This seems like an extremely aggressive (if not disingenuous) position, since the check was actually cashed and the amount actually went into the IRA. Does anyone disagree?

(2) A better option (in my mind), would be to acknowledge that a rollover did occur in 2008 and that the plan improperly accepted a return of the funds from the former participant. Presumably, this would be an operational error that needs to be corrected under EPCRS and the amount must somehow get back into an IRA for the former participant. But I'm not clear on how the corrective distribution should be structured... Can this amount properly be characterized as an eligible rollover distribution? Does the amount need to be credited with interest at the plan's stated rate from the date of improper acceptance to the date of distribution? How should these transactions be reflected on the Form 1099-R?

Any thoughts would be greatly appreciated.

Has anyone run any PPA valuations for a DB/DC combination that is permissively aggregated for 401(a)(4) sponsored by an LLC where there are employees and the owners take no W-2 wages?

I have two such nightmares currently that I've been actively putting off. I have an excel spreadsheet that would help me do the LLC income split and include the employee cost divided between the two owners since my valuation software will not split out the income across two plans.

Any advice on how to handle the circular equation between contribution and compensation, and how to communicate most effectively with the client, would be appreciated.

Joseph