Got a call from a client.  He and his spouse are getting a divorce.  It is amicable so he intends to give 1/2 of his plan balance to her, no problem.  They don't want to pay for the attorney to draft a QDRO.  Couple of questions:

1.   Do they need to wait until the divorce is final to complete the distribution?  Probably, just in case they reconcile because then the payout would have been premature.
2.   Do they need a QDRO?
3.   The distribution election form is asking for the QDRO checklist.  Just maybe have them create a statement stating that the account is being split due to a divorce and have them both sign it in front of a notary?

Thanks

Are there any concerns that never use forfeiture account? big balance? some investments are volatile?

I was married for about 25 years after that we divorced In 2015 and the judge granted her 1/2 of my 401k (QDRO).   But then we married again and divorced in 2018 in which She failed to tell the judge or her lawyer that we had been married before And they granted her half of my 401K (QDRO).  In which I just found out that you could only be granted that 1 time.  Is that legal? And what can I do now?

Hi -- I have a client who has elected to exclude highly-compensated employees in order to avoid potential nondiscrimination or coverage issues due to some idiosyncrasies with their population. Due to one-time variation in bonuses, as well as the upcoming jump in the HCE threshold for 2023, we anticipate a few individuals may drop down into non-highly compensated employee pool. Would an exclusion for "employees previously designated as HCEs" or employees making over a certain dollar amount be permissible? Do you all think the former would violate the "definite written program" rule? Thank you for your thoughts!

Over the last two years we have experienced a spike in the IRS assessing late filing penalties on 5500s which were filed on a timely basis. The penalties have always been in the $1,000s and a few days ago a client received a late fee letter on a plan that was never installed and has never filed a 5500 on a tax ID that was obtained 15 years ago. The penalty is $25,000. We usually get the IRS to correct these and eliminate the penalty with our first letter to the IRS, but sometimes it takes two and three letters to get the IRS to relent. 

Is anyone else experiencing this problem?

a 50 participant 401(k) plan is sponsored by an LLP. There have been 4 individuals in the company who each have a 25% interest in the partnership for many years. It turns out in 2021 2 of the 4 partners incorporated and nothing was ever mentioned about it. Now the CPA is disallowing the contributions funded for the 2021 year for the two that incorporated because their corporations did not fund the contributions. Instead, the LLP did. Also, since nothing was mentioned about it, the two that incorporated have not adopted participating employer adoption pages to the plan document.

Is this something that could be fixed under EPCRS?

Thanks.

I've found a few posts related to this question but not a clear answer and it's nowhere to be found in the regs. Any advice would be helpful.

We are a TPA and have a small client that deposit payroll in a timely manner (within 7 business day). However, they are always late in providing the payroll file/breakdown. There has to be some type of ramification for not being able to invest the participant's deferral in a timely manner. We've researched and can't find anything to send to the client to let them know about penalties they would incur for not providing the payroll files timely.

If a non-owner participant terminates employment after age 72 (or 70-1/2, as the case may be), but is later rehired within the same calendar year, are RMDs triggered?  There doesn’t appear to be any guidance on this. 

Where the rehire occurs in a later calendar year, and RMDs have already started, there is at least informal guidance stating that they must continue.  (See ERISA Outline Book and 2010 ASPPA IRS Q&As.)  However, I've found nothing addressing termination and rehire in the same calendar year prior to starting RMDs.

Father is a trustee on a corporate 401(k) plan.  Son (over age 18) is an investment advisor and is interested in being the investment advisor for the plan.  As the son would be a party in interest, would this be a prohibited transaction?  Is there prohibited transaction exemption for this situation? Thanks for any help you can give.

My employer switched 401K providers. The new provider had the same funds I was in. Instead of using the ACATS  To transfer my shares they mapped my funds, sold them off and bought them back the next day. I ended up losing shares because the market went up while I was out.  I've lost about $6000 in the transaction. Do I have a claim to get my shares back?

If some one have all contribution calculation that can be done in a single template/Spreadsheet where you just input the formula based on plan and fill up comps & deferrals.

Can you share it?

According to the law you must give 30 days notice before a person becomes eligible to make deferrals to the plan. How is this calculated because a participants hours may vary in any given month? For salaried employees I would think we can make an assumption. The plan doc specifies that the eligibility is 175 hours and is using the actual hours method to calculate eligibility. 

Is it legal to specify that you have to be employed by the company on the last day of the year to receive profit sharing (new comparability, pro rata ect) even if they have earned eligibility throughout the year to be eligible for the profit sharing? Also is this possible to do with safe harbor non elective contribution or do they have to receive the non elective distribution regardless of their employment on the last day?

An employee works for two unrelated entities in 2022 (not in controlled group or ASG). He approaches the second employer to advise that due to contributions to his prior employer's 403(b) plan, he has now exceeded the 402(g) limit.  Since it is before the end of the plan year, is it permissible to move the excess contributions & attributable earnings to the current employer's 403(b) plan's suspense or forfeiture account and refund the contributions to the participant through payroll, or is it required to process a corrective distribution from the plan? 

A client plan delivered funds based on a terminated participant's rollover request. The payment included the participant's vested balance plus a $10,000 overpayment amount (a simple clerical error - check was written for $60,000 instead of $50,000). The error was caught within 30 days. Both the participant and receiving custodian were notified of the mistake. And the receiving custodian returned the $10,000 overpayment amount to the client plan in a timely manner.

Nothing has been reported yet.

Does the Form 1099-R reporting for the participant distribution need to include or otherwise address the $10,000 error in any way, since the participant received what was due and the original client plan was made whole?

Does the client plan need to report a plan failure?

I have not run into this previously, but I have a potential start up 401k that would be pretty routine in many ways, but the owner wants to include most sub-contractors in the plan.  He started his career as a sub-contractor and feels strongly that he wants to offer a 401k to them as well.

He is considering a safe harbor 401k match plan.  But how would that work in regard to withholding pay for individuals who are not on payroll but are paid without any tax withholding?    Would the SubCs indicate that only a portion of their income be paid to them while $X.XX goes into the 401k?  Can they employer provide the match on a payroll basis if they are included?  This seems like it could get messy......

Thanks

Hi, we offer a simple IRA. Our employee base is all per diem hourly workers. My question is, during open enrollment (11/1-12/31), does every employee have to re affirm their selection? or if they ignore the offer and are already enrolled in the prior calendar year (2022), should I continue their withholding into 2023

I know it might be off for some of you to read that an employee would not reply to this, but this is the reality with my workforce. 

thanks

Honestly, I should know this, but if a plan has no HCEs, can they still exclude classes (job classes) and have no testing? 

I've not used this group before and see it could be helpful, if for nothing else to vent. But I appreciate helpful comments and I know there are many knowledgeable people in here.  I enjoyed reading the history of some in here.  We went with Pentabs in 1991, then Quantech, then Relius in-house, and then Relius ASP in May 2020.  It was an adjustment but overall went well each time.

And I realize we are only 2 days into this new migration but we are all locked out of being able to log into Relius Admin.  Work accumulates rather quickly and so we hope for resolution soon.  There were multiple emails with instructions, pdfs, etc.  More than I wanted to deal with.  I called FIS this morning and was on hold for perhaps a half hour.  Someone did finally pick up - tells me maybe we aren't the only ones with this issue.  So I'm waiting for a callback and hope for resolution.

We had  trouble with the portal when that came out.  I finally got that to work but haven't logged on in months and can almost guarantee I will be blocked from logging in.  Any comments about your experience with this new migration?   I know we'll get there but it is frustrating.

Tom

Client paid 2x for one filing in error.

How do we request a refund?

There is nothing on the DOLs DFVC webpage; the client's receipt mentions the Office of the Chief Accountant, which of course is a recording asking to leave a message and "we'll get back to you."

Keep calling?

Any other suggestions?