Assume an S Corp has an ESOP that owns 60% of the stock of the company. The remainder is owned by individuals. No stock will be allocated to a "disqualified person" because those people are excluded from participating in the Plan. The individual owners are receiving payments of nonqualified deferred compensation (although they will never receive ESOP allocations). I think it is clear that the Plan will not violate 409(p); however, it seems that there is a problem with 4979A(a)(4). Because these individuals have nonqualified deferred comp interests (synthetic equity) and there would be a nonallocation year (although no stock is allocated to the individuals), does that mean that they now are liable for a 50% excise tax? (I know they can distribute the nonq deferred comp by 7/21 and avoid the problem, but this still doesn't seem right).

Thanks.

I would appreciate the expertise of other members of this forum.

The plan year for a safe harbor 401(k) must be twelve months long, unless it is a newly established plan (excluding successor plans) or, under the proposed regulations, a terminating plan.

A current 401(k) plan (not safe harbor) is on a calendar year. If the current plan elects a short plan year, say ending June 30th, can the plan adopt the safe harbor provisions effective July 1st? (This assumes proper notice is given and the safe harbor plan year ends June 30th.)

This scenario seems to meet the requirements of Notice 98-52, but something about it is nagging at me. Thanks for the help.

Should a 1099 be issued when making payment of a U.S. citizen's plan benefit to his Canadian beneficiary? What if we don't have a social security number for the beneficiary? Any other issues I need to know about? Thanks in advance!

Two companies, one owned 100% by a husband and one onwed 100% by his wife. Both companies have employees. The companies are not related (other than the husband/wife ownership). Is this considered a controlled group??

Client was SE as of 1/1/04 until recently and has made a $13,000 deferral to a Solo K for 2004. He has since closed a huge deal and his CPA told him to incorporate. He wants to establish a plan for the corporation. Can he make a $13,000 deferral to the SE plan from SE $, and in addition make a $41K contribution (no deferral) to the incorporated plan from the proceeds of this deal? This will mean he is going to shelter $54K for 2004 between the 2 plans... ok?

Company Z maintains a 401(k) plan and provides matching contributions. Z has discovered that a number of tis employees have failed to sign a certain agreement that requires them to disclose actual or potential conflicts of interest. Because a number of states do not consider continued employment to be sufficient consideration to signing such an agreement, Z cannot simply terminate those failing to sign. Z'a CEO suggests conditioning the matching contribution to the 401(k) plan upon signing the agreement. Does this violate any qualification requirement or ERISA requirement?

May a plan charge a "penalty" against a participant's account if participant trades in and out of a particular fund within a 30 day time period. (Note: The "fee" has no relation to the cost to the plan, which is negligible at best.)

A self insured ERISA health plan has been sued in state

court as part of a personal injury lawsuit. One count of

the complaint is essentially a claim for payment of benefits

that as of today have not been paid. (The member has

refused to sign the subro agreement as clearly required

by the terms of the plan.)

Prior to the QualChoice case which came out earlier this

month in the 6th Circuit, I would have simply removed the

case and gone through the constructive trust/equitable

lien hoops. However, QualChoice effectively killed these

options within the 6th Circuit. Therefore, if I remove the

case, the federal court is likely to give us a quick boot.

I am tenatively planning to discuss this matter with the

P.I. attorney and have his client sign the subro agreement.

This will allow us to pay the bills and participate in the

state court action under a true subrogation theory

(plan v. tortfeasor).

Questions...

1. What are your thoughts on this approach?

2. Does the state court have subject matter jurisdiction over

an action brought by the ERISA plan against the 3rd party

tortfeasor?

3. Any issues or options I am missing?

A self insured ERISA health plan has been sued in state

court as part of a personal injury lawsuit. One count of

the complaint is essentially a claim for payment of benefits

that asf today have not been paid. (The member has

refused to sign the subro agreement as clearly required

by the terms of the plan.)

Prior to the QualChoice case which came out earlier this

month in the 6th Circuit, I would have simply removed the

case and gone through the constructive trust/equitable

lien hoops. However, QualChoice effectively killed these

options within the 6th Circuit. Therefore, if I remove the

case, the federal court is likely to give us a quick boot.

I am tenatively planning to discuss this matter with the

P.I. attorney and have his client sign the subro agreement.

This will allow us to participate in the state court action

under a true subrogation theory (plan v. tortfeasor).

Questions...

1. What are your thoughts on this approach?

2. Does the state court have subject matter jurisdiction over

an action brought by the ERISA plan against the 3rd party

tortfeasor?

3. Any issues or options I am missing?

An employee signed up for the 401(k) plan in 2002, and deferred 10% of pay.

For some reason in 2003 and so far in 2004, the employer did not withhold the deferrals from the employees paycheck. Now, in 2004, the employee , brings this to the attention of the employer.

What course of action is the employer required to take? Must the employer make a special employer contribution for the employee in the amount of what the deferrals and match would have been, adjusted for gain or loss ?

Or was it the employees responisibility to bring it to the attention of the employer at an earlier date?

May a plan charge a "penalty" against a particioant's account if participant trades in and out od a particular fund within a 30 day time period. (Note: The "fee" has no relation to the cost to the plan, which is negligible at best.)

The bank that I work for is thinking about taking on custodianship and record keeping of a 403(b) plan. This would be our first endeavor into this plan type. What are the major differences between a 401(k) and 403(b) plan? What are some things to watch out for in deciding whether to take on the plan?

Any insight anyone can provide would be greatly appreciated.

How is an employer required to handle unsubstantiated claims at year-end? Does a W-2 adjustment need to be done to reverse the pre-tax benefit of the unsubstantiated amount?

Our TPA is telling us that this is not the case - that employers can just "write it off", and I'm not sure what that means.

Thanks.

I am new to the forum and was wondering if anyone was familiar with the military's thrift savings plan? I am a new investor and wondering if that would be a good choice or if I should start a Roth IRA or something else? Anybody have any advice?

Thanks

We have a participant who used a false name and social security number for several years. The employee was recently fired when the employer discovered this. Question now is about the plan.

What happens to the employee's accrued benefit? Plan is silent on this issue.

Seems to me that the employee accrued the benefit so should receive it when he becomes eligible for benefits. I'd like to go on more than my gut reaction.

Anyone ever have this problem? Thanks.

Can a sponsor put the SPD on the company's intranet site and/or send it via e-mail? I thought e-mail was good, but not sure about intranet site.

Employee age-60 enrolls for for family high-deductioble health plan (HDHP) coverage (EE+Spouse). Spouse is age 66. EE enrolls in employer's health savings account (HSA) under IRC section 223. For 2004, may EE make the maximum HSA contribution permitted for a taxpayer with family HDHP coverage (i.e., lesser of family deductible under HDHP or $5,150) or, must the EE's tax-favored HSA contribution be reduced due to the Medicare entitlement of the spouse?

A TPA firm is being told by a client that the applicable premium for COBRA purpposes must be determined on an actuarial basis for each possible COBRA election scenario. For instance, suppose an employee has family coverage, but has a qualifying event and elects COBRA for only the child for whatever reason. The TPA firm is being told that it must determine what the cost is of providing coverage to that child on an actuarial basis. The TPA firm currently just provides that the cost will be that of individual coverage. However, based on this information, they will have to determine the actuarial cost of providing coverage to a child. Back to the above example, if individual coverage under the plan is only $50, but actuarially, the cost to the plan of providing coverage to a child is $30, COBRA is based on $30... any thoughts? I know that 4980B(f)(4) provides that for self-insured plans, the COBRA premium is based on actuarial assumptions, but I have never seen this before.

What is the penalty for not withholding the mandatory 20%. A client did not withhold the mandatory 20% for a distribution that occured in 2003. The accoutant is blaming me for not being more communicative. We just found out about it.

If a spouse's employer of an employee enrolled in a 125 Plan (opting out of medical) imposes a plan design change eff. 3/1/04 and also imposes additional contributions of its employees, can the employees spouse drop coverage and enroll in the employee Plan? What if the spouses employer does not implement the cost increases until a later date? Are there two qualifying events (1) the plan design change - curtailment and (2) cost change? Is it of any importance if the spouses employer has a 125 Plan?