Here’s another statute-reading exercise for BenefitsLink mavens.

Internal Revenue Code § 414(v)(7)(A) restricts to Roth treatment a § 414(v)(1) catch-up deferral for “an eligible participant whose wages (as defined in section 3121(a)) for the preceding calendar year from the employer sponsoring the plan exceed $145,000[.]”

If a retirement plan’s participant who otherwise would have had wages more than $145,000 had no wages (but as a partner had net earnings from self-employment more than $145,000), may she choose non-Roth catch-up deferrals?

As many of you run into, we sometimes have on-going plans with former employee participants that cannot be located.

I believe the rule is as follows:

1. For on-going plans - after a diligent search, the plan can distribute a former employee's vested benefit to a default IRA Custodian, but only if it is $5,000 or less.

2. For Terminated plans - (non pbgc plans) after a diligent search, the plan can distribute a participant's benefit to a default IRA custodian no matter how large the participant's benefit is.

Anyone disagree with this?

Thanks.

We have a 401(k) Plan that has safe harbor match.    The employer acquired a second company in October 2022 and this company has a 401(k) Plan that does not have any safe harbor contribution.    I'm not sure how to test the 2 plans.     Can we test them separately or are they required to be aggregated?   

With a heading “Mandatory Distribution Rules Not to Apply Before Death”, Internal Revenue Code § 402A(d)(5), as SECURE 2022 adds it for tax years that begin on or after January 1, 2024 (with a transition for 2023 measures to be paid in 2024), provides:

Notwithstanding sections 403(b)(10) and 457(d)(2), the following provisions shall not apply to any designated Roth account:

(A) — Section 401(a)(9)(A).

(B) — The incidental death benefit requirements of section 401(a).

Am I reading correctly that only Roth 403(b) and Roth 457(b) participants are excused from minimum distribution before death?

Or is there another provision I didn’t read thoroughly enough to find?

I'm having trouble getting my head around the rules in EPCRS about when a sponsor doesn't have to make a corrective distribution of small benefits.

EPCRS Section 6.02(5)(b) says: Delivery of small benefits. If the total corrective distribution due a participant or beneficiary is $75 or less, the Plan Sponsor is not required to make the corrective distribution if the reasonable direct costs of processing and delivering the distribution to the participant or beneficiary would exceed the amount of the distribution. This section 6.02(5)(b) does not apply to corrective contributions. Corrective contributions are required to be made with respect to a current or former participant, without regard to the amount of the corrective contributions.

My questions are:

• What may be considered a "corrective distribution"? Like are corrective distributions limited to 415 excess, 402(g) excess, and ADP/ACP refunds?
• When it says "This section 6.02(5)(b) does not apply to corrective contributions.", does that mean corrective contributions for former participants with no balance still have to made if the amount is < $75 or the actual cost of making a distribution, even if the TPA's cost for making a distribution will wipe out the benefit?
  • Can corrective contributions for former participants with no balance be forfeited if they are less than $75 or the cost of making the distribution?
• Essentially, how liberally can this section be used to avoid having to fund small corrections to terminated participants with no balance?

A Plan Sponsor elects to discontinue their single-employer plan and join a PEO/MEP. 3 months later, the Plan Sponsor decides they want to leave the PEO/MEP and go back to a single-employer plan. Is this an issue since less than 12 months have passed since the Plan Sponsor originally discontinued their single-employer plan in favor of joining the PEO/MEP?

I just wanted to know if anyone is dealing with the same issue. We use Relius pre-approved IDP Volume Submitters Plan documents. Currently we have 100+ plans that don't allow for Roth 401k deferrals. We are trying to determine if we now have to force these plans to allow for Roth 401k because of the new rules (taking out the catch-up provision is not a route we want to go, we know this is an option to avoid the roth catch up). 

Currently there's no way to amend the FIS/Relius IDP VS to add Roth 401k deferrals, without losing reliance. We would have to restate the entire plan document, which we are trying to avoid since we recently restated all plans for Cycle 3. 

We thought a plan could possibly only allow Roth for Catch Up eligible but that doesn't seem to be the case, it looks like we may have to force plans that don't allow for Roth deferrals to now allow for it because of the new rules (well at least that's what our understanding is so far).

Again not so much a question but just wanted to know if we're the only ones dealing with this right now :).

A sponsor and a job applicant were 99% sure the applicant would become an employee of the sponsor.   While final negotiations was taking some time, the applicant rolled in money from a prior company to this sponsor's 401k plan, this sponsor signed approval of the roll-in, and the roll-in was completed, and an account holding assets was created for a non-employee roll-in to this plan.  Then the negotiations fell apart without the applicant ever becoming an employee (though in this case, the applicant may still become an employee in the next 6-12 months).  

I've no background on this to even know where to begin asking questions, but here goes.......

Is this a violation of ERISA type rules?   

Is it an automatic violation of plan document design? 

What type of penalties exist? 

Must the plan disgorge the assets back to "never-employee" immediately? 

Does the "never employee" now have rights as a current plan participant? 

Can they just treat this "never-employee" account balance as a terminated employee? 

Does it have any impact on testing?   

Would it impact the count for plan audit status? 

Any thoughts on how to address this are appreciated. 

Thank you.

Keith

An employer maintains two § 401(a)-(k) plans, one for manufacturing employees, who are union-represented, and another for office employees, none of whom is union-represented.

The employer is considering merging the two plans into one.

The plan for office employees uses a safe-harbor matching contribution to meet rules about coverage, nondiscrimination, and top-heavy.

Even after the plans’ merger, there would be no risk, even with substantial growth in both headcounts, that the merged plan’s participant count would reach a number that calls for engaging an independent qualified public accountant.

The employer is not worried about a tax-qualification defect for either plan.

Are there other reasons for not merging the plans?

Are there other reasons to prefer the hygiene of separate plans?

Question:  For the Covid distributions that did not get paid back, do they count as an in-service distribution that needs to be added back/included in top heavy balances?

Personal question: I turn age 65 in November, 2023, and am currently deferring amounts to an HSA account to cover the HDHP deductible. I know I have to cease HSA contributions when I turn 65, but the question is when do I have to stop? I currently plan to retire in January, 2024, and keep my health coverage through my employer through the end of 2023, starting Medicare Part B on 1/1/24. I've heard conflicting theories as to when deferrals have to cease, so I'd thought I'd ask the question here.

Thanks for any replies.

I’m terminating a cash balance plan with a PYE 7/31 and am trying to get all benefits paid out prior to that date so that the 5500 for that PY will be the final 5500. The plan document is from FT William which has a Secure Act amendment for terminating DC plans but has advised that it won’t have one for terminating CB plans for several months. Any ideas? Thanks.

We prepared a 2021 Form 5330 for a client who had late deposits.  For several reasons, we did not prepare it until December 2022 but we calculated the interest/excise tax through 12/31/2022.  They will also need a 2022 Form 5330, which I believe we could have included the 2021 info on that for only one filing, but we elected to do two separate filings.  

The client remitted the form (along with excise tax payment) fairly quickly; the IRS apparently received these on Jan 9, 2023.  I know this because they actually sent our client a letter assessing penalties.  Granted, the amount is quite small (< $10) but I have never heard of a late 5330 letter being sent by the IRS. 

Has anyone else heard of their clients receiving a late 5330 letter, ever?  I know the IRS is beefing up their staff and perhaps now have employees eager to take action on things like this.

Also, could the client have avoided a penalty if we had done a combined reporting on one 2022 Form 5330? 

Thanks!

A client claims that some ESOPs freeze the share value on termination of employment for the terminating participant. That participant's share value/account balance would not change in the future, regardless of how long the participant waits to receive distribution. There would also be no interest credit or any other adjustment to the account balance at termination. The purported rationale is that a terminated participant should neither share in the upside of future stock increases nor bear the potential risk of share price decline in the future.  I can find nothing on this. Seems dubious to me. Has anyone heard of this? 

LLC taxes as an S Corp.   Taxes have been filed by March 15th.  I do not know yet if the extension has been filed or not.  Is there a creative approach to install the Plan retro to 1/1/2022?

A plan came to our attention that has been making the same discretionary matching contributions for the past three years at least. The first formula is 100% of the first 3%, but they also pay 100% of the first 6% if a participant is employed longer than 10 years. I've never seen this before. I thought the maximum service requirement for an employer allocation is 1000 hours. Would they need to pass ACP testing on each formula separately? 

Hi

Looking into a proposal, all plans are calendar.

DC Plan already exists. Provisions are 401k+NESH+PS

Entry is first day of the month following completion 1 YOS

Compensation is defined as from DOP

CB plan will have 1 year wait, dual entry and full compensation

For all purposes, all top heavy.

DC plan top heavy provision states last day rule. PS states last day rule+1000 hours

EE data for DC plan:

• DOH 3/15/2021
• DOP 4/1/2022
• DOT 5/1/2022
• 2022 w-2 $12,000
• Salary from 4/1/2022 to 5/1/2022 - $3,000

From above, never eligible to enter CB plan so top heavy is only 3% and under DC plan only

Gateway is 7.5% (3% NESH+4.5% PS)

For gateway, $3,000 salary is used and thus $225.

Top heavy is based on full salary i.e. $12,000*3% = $360 however, plan has last day rule.

What amount is supposed to be allocated?

Thank you

Need some clarity here.  Dealing with a typical A-org ASG for a professional service organization.  The partners of an accounting firm (LLP) are each individual PCs.  The PCs receive K-1 share of profits, and then pay W-2 salary to the owner of the PC.  The individual PCs have each adopted the 401(k) plan maintained by the LLP.

Suppose Jane Smith PC owns 4% of LLP, and Jane Smith owns 100% of Jane Smith PC.  Through 318 attribution, Jane Smith is deemed to own 4% of LLP, but she also owns 100% of Jane Smith PC which is a participating employer in the 401(k) plan.  Is Jane Smith a 5% owner for purposes of determining HCE status?  The plan uses top paid group and she falls below the top 20% in salary.

We have a difference of opinion here.  Is there any authoritative guidance on the correct analysis?

Thanks.

          I have a client composed of husband and wife doctors and 4 employees. The assets in their defined benefit plan as of 1/1/22 were about $5,260,000. Due to investment losses, the 12/31/22 balance dropped to about $4,500,000. In 2021, there was a surplus in the plan of about $235,000. In order to bring the surplus down, no contribution was made into the plan for Plan Year 2021. Given that the plan is going to be terminated early in 2025, we were hoping that this would lower the surplus. Due to the large investment losses in 2022, not only did the surplus disappear, but, a minimum contribution of almost $100,000 was generated. At this point, the medical practice is not generating very much income and coming up with the $100,000 for the contribution is a problem. To avoid having a potentially large contribution in 2023, the plan is being frozen before anyone accrues a benefit for 2023.   My question is, what are their alternatives for getting the money to make the required contribution of almost $100,000?

Potential alternatives:

1. Have the doctors personally lend the money to the PA and then have the PA make the contribution. What are the tax consequences if the PA can't pay the loan to them back? Are     there other tax concerns to be aware of?

2. Amend the plan to allow for in-service distributions. This would seem like there could be double taxation. Again, what other tax concerns could crop up?

3. What if the contribution is not made by 9/15? Aside from paying the 10% penalty, is there any advantage to this?

        I would appreciate any advice on this.

Apologize in advance for the rudimentary questions, have already tried searching previous threads for my answers. 

In my limited understanding when doing new comp, my goal is to maximize the HCE's total contributions. The remaining gateway to eligible NHCE is the lesser of 5% of comp or 1/3 of the highest allocation percentage of an HCE.

Upon 401(a)(b) failure, is it in my best interest to allocate more to the elder NHCE's? If so is there a general formula to achieve the correct amount?  In my experience the 401(a)(b) seems really finicky and feels almost arbitrary at times. Once again I'm sorry if this isn't the correct place to ask, my previous resources weren't helpful for me.