calling Tom Poje....HELP

I have a Crystal top heavy report that I obtained from you some time ago. (I work on a multiple employer plan for which this report is and has been invaluable to me as a timesaver:)!

I am on version 11 and when I went to run the report for 2009 top heavy status...it isn't working properly . The participant balances are huge. I verified the database in Crystal to update the fields but still no luck.

Any ideas?

Client received QDRO directing 1/2 of a participant's Options in the Co,'s NQDCP to be repapered to his (now ex) wife's name. Client asserts that because their Plan Document says Options can't be assigned, they do not have to comply. I would think the document is speaking to a participant's ability to assign his/her Options, not a court's ability to do so.

I also heard a comment from another party that ended like this "oh, that's right, it's a non-qual Plan, so the QDRO can't dictate".

Really? Does anyone know - Can the Plan Document actually supercede the court order and is it true that the fact it is an NQDCP really make a difference??

Has anyone heard that guidance regarding additional funding relief is about to be issued regarding the ability to use any of the "applicable months" that applied to the segment rates to the full yield curve as well for 2009 plan years??

I am looking for information on restrictions that may exist for a company to change it's contribution structure in a 401(a) MPP. From my research, I have ascertained that a prospective change is possible with an amendment of the plan. This plan, however also has a matching component, based on an employee's one time irrevocable election. Are there any strings attached to the irrevocable?

Finally, I am also looking to see if there are any restrictions (outside of testing) to implementing the change under a grandfathering system, where current employees receiving the match/contributions are not effected, but newly eligible employees are under the new contribution structure. Any help or guidance is welcome!!!

Is there a model notice available yet?

I have been working with 401(k) plans for quite some time but haven't ventured into the 403(b) arena. Since the recent regulation with the requirement of documentation of 403(b)'s, what is the difference between the two in the areas of compliance and tax reporting? Are they pretty much the same now?

Suppose a company's tax year ends June 30th. On April 30, 2009, they establish a new DB plan. The plan year ends April 30. The effective date of the plan is July 1, 2008 (a 10-month initial plan year).

Thus, we have a valuation on July 1, 2008 and another on May 1, 2009. Both of these plan year beginnings are within the company tax year that ends June 30, 2009. Assume no DC plan.

They make full contributions for the July 1, 2008 short plan year and the May 1, 2009 plan year before their tax return is filed for their tax year ending June 30, 2009.

Under 404, can they deduct both of these contribution on their June 30, 2009 tax return?

Can a self-funded health plan charge its participants a share of the plan's administration fees?

Participant takes unpaid leave on January 2, 2008 which is the date of his last loan repayment. Does loan default on 1/2/09 or is it possible to inerpret 72(p) to allow a cure period to allow payment to begin prior to 6/30/09?

72-(p) Q&A 10 does not specifically state this but IRS Q&A with the ABA in 2003 stated that the cure period would allow a loan to extend beyond 5 years if the last payment of the loan was missed.

Loan policy would not prohibit this interpretation.

Thanks

I know this is a simple question, but I'm trying to confirm something regarding ERISA 404(b).

If the stock of a foreign corporation is traded on a U.S. stock exchange, such as NYSE, and thus subject to U.S. securities laws, is that stock considered to be subject to the jurisdiction of the district courts of the United States?

We are in process of taking over a 600 life DB plan.

Most of our plans are 2-100 life plans.

My sense is other than pre retire mortality and turnover assumptions;the valuation work will be similar to a small plan.

I know there are other issues like more FAS reporting and PBGC reporting;but am I being to optimistic re larger plan?

I have a plan that stopped employer matching (amended the plan's match formula to zero) effective 1/1/2009. There are 2008 match forfeitures in the trust's cash account and the plan document is coded for match forfeitures to pay plan expenses and/or reduce future match contributions.

I understand that a plan cannot carry forward forfeitures and instead must be used up, so my question is:

How should the forfeitures be allocated in a plan that has a zero match formula? Should the plan sponsor select a percentage of deferral with no cap to allow all forfeitures to be used or is there a regulation that specify a formula?

I think I already know the answer, but here goes:

If a company sponsors a 401k plan and a separate profit sharing plan. Now it wants to terminate the 401k. Is the profit sharing plan, already in existence, considered a successor plan? Therefore, they cannot distribute the 401k accounts?

Thanks

A fiduciary wishes to invest in an offshore private equity fund that is not a plan-asset vehicle. Assets are transfered to an account of a foreign bank in a foreign country. To become a member of the private equity fund, fiduciary must submit a subscription agreement that is accepted by offshore private equity fund. Under ERISA 404(b), a fiduciary must maintain the indicia of ownership of assets within the jurisdiction of the U.S.

It appears that the indicia of ownership for this investment is the subscription agreement and that because the fiduciary retains a copy in the U.S. that should satisfy ERISA 404(b). However, I cannot find any DOL guidance exactly on point stating this. Do you agree that retention of the subscription agreement in the U.S. should satisfy ERISA 404(b)? Do you know of any guidance on point supporting your position? Any thoughts are appreciated. Thanks.

Is a funding notice due by 4/30/09 for a calendar year plan that terminated in 2008 but has not fully distributed assets as of 12/31/08? What if the plan terminated in 2008 AND assets fully distributed by 12/31/08?

Thanks.

Client is a single member LLC. However, single member gave himself a salary for 2008 and reported it on a W-2. LLC has net income after deduction for salary.

Client wants to establish a SEP. What's the contribution calculated on? 20% of net self-employment income? 25% of comp? A blend? Aargh!!!

Any help would be appreciated.

Here are the facts:

Employee is terminated involuntarily by Company A on October 15, 2008. Employee is hired by Company B and becomes covered under Company B's health plan on November 1, 2008. Employee declines COBRA under Company A's health plan.

Employee is laid off by Company B on March 15, 2009. Company B is a small employer exempt from COBRA so Employee is not given a COBRA election.

Is Employee entitled to a "second-chance" COBRA election under Company A's health plan?

As I read the statute, I'm coming to the conclusion that Employee is entitled to a second-chance election under Company A's plan, but is not eligible for premium assistance. I had never thought of that being a possibility, so I'd like to throw it out for others' thoughts.

An "assistance eligible individual" (AEI) is a qualified beneficiary if (a) at any time between 9/1/2008 and 12/31/2009 he is eligible for COBRA continuation coverage, (b) he elects COBRA, and © the qualifying event was involuntary termination during the period in (a). Employee satisfies (a) and © but not (b), so he is not an AEI.

The "second-chance" election period is available to an individual who does not have a COBRA election in effect on February 17, 2008 but who would be an AEI if an election were in effect. Under these facts, Employee didn't have a COBRA election in effect on February 17, 2008, but he would have been an AEI if he had elected COBRA. It appears that he is eligible for the second-chance COBRA election and if he makes the election, he will become an AEI.

An AEI is entitled to premium assistance, but the premium assistance will not apply with respect to any AEI for months of coverage beginning on or after the earlier of several events, one of which is the first date that the individual is eligible for coverage under any other group health plan. Since Employee was covered under Company B's plan, it appears that he will never be eligible for premium assistance.

So, it appears that Employee can elect COBRA under Company A's plan, but he will have to pay the full premium. Agree? Disagree?

We were just been informed that a client is actually a PEO. They have been for several years (since 2003). Their plan is not in a document that supports a PEO plan (multiple employer plan).

Can this be corrected via EPCRS?

I am aware of the generally inconsistent treatment of fiduciary protection via 404© compliance, but I was wondering if there is any consensus as to how to draft so as to have the best shot at compliance. I have always been rather detailed in the investment direction section of the plan, even describing the then fund offerings. Lately I have been reviewing plans that are so skimpy they basically just state the intention to comply with 404©.

What's your experience?

404(o)(1)

`(A) the sum of the amounts determined under paragraph (2) with respect to each plan year ending with or within the taxable year, or

`(B) the sum of the minimum required contributions under section 430 for such plan years.

paragraph 2 is the FT + TNC + Cushion - Assets.

Plan termination in 2008 with max 2008 contribution made 10/08. Payouts in 2009. With the 2008 investment losses, employer wants to fund the amount needed to get the assets = LS's payable. Owner and daughter (less than age 26) ar the only plan participants, so no PBGC coverage.

404(o)(5)

SPECIAL RULE FOR TERMINATING PLANS- In the case of a plan which, subject to section 4041 of the Employee Retirement Income Security Act of 1974, terminates during the plan year, the amount determined under paragraph (2) shall in no event be less than the amount required to make the plan sufficient for benefit liabilities (within the meaning of section 4041(d) of such Act).

Since this is not a PBGC covered plan, do I need to calculate the FT and cushion on 2009 to make sure the total needed to fully fund LS's fits under the FT + Cushion - Assets? Do I have a special 'valuation date' of the date of distribution or use the 1/1 date used for the determination since that is what was used for 2008.