Hi,

Can two members of a controlled group have two 401(k) plans, one safe harbor and the other not?

There is only one HCE (the 100% owner) and he will not participate in the non-safe harbor plan, so logic would say that his deferrals under the safe harbor plan would need to be aggregated/included in the ADP test for the non-safe harbor plan and top heavy aggregation would not apply. The safe harbor plan would satisfy coverage including the other group (it is much smaller). The non-safe harbor plan would have an exception to coverage since no HCE would benefit under the plan.

Am I missing a critical issue here? It seems too good to be true.

Thanks for the help!

I have an employee who is dead set that he does not want to take part in our cafeteria plan to have his health benefits pre-tax because he feels it is affecting the gross wages reported for his social security benefits.

How do I find out if one out of 100 employees can decide not to take his benefits pre-tax?

In the 2004 Grey book at the enrolled actuaries meeting, the IRS reps state that a frozen DB plan must in their informal opinion switch to Unit Credit funding method. No rationale is given.

At the podium, IRS reps clarified in particular that Individual Aggregate would not continue to be a reasonable funding method for a frozen plan - though they clarified that by a frozen plan they meant one where by the terms of the plan it was not possible for any additional benefits to accrue - and not for example a plan where only service accruals were frozen but salary increases could still result in benefit increases.

I would like to know whether any one understands the rationale that might be behind this opinion and also what response practioners plan to take in light of this informal opinion.

If not, where is the definition of "corporations" that applies for purposes of Section 1563?

I haven't been paying too much attention to this issue. Has the Service indicated yet when they will start accepting prototype and V/S submissions for opinion and advisory letters, updated for EGTRRA? Seems like 12-31-05 isn't all that far away any more...

Does anyone know where the rules for suspension of accural requirements to pass 410(b) testing are in the regs? I have seen them in pre-approved plans, but don't know the authority for them.

One of my clients added a 401(h) retiree medical feature to their DB plan two years ago. A separate account established for 401(h) benefits now holds about $120,000, and only one retiree is currently entitled to distributions (monthly payments of about $250 have not yet commenced).

The sponsor has now reconsidered, and would like to increase the DB formula in lieu of the 401(h) feature. The question is what can be done with the 401(h) account.

The Code and regs (1.401-14) provide that the 401(h) account can revert to the employer "upon satisfaction of all liabilities arising out of the medical benefits portion of the plan." The plan can be amended so that future retirees are not entitled to medical benefits, but what about the one current retiree? Can the plan be amended to terminate her medical benefits, which would allow an immediate reversion? The sponsor intends to continue paying her medical benefit from a corporate account.

Guidance on 401(h) is slim, but my guess is that her 401(h) benefit can be terminated by amendment, as the 401(h) feature is not a vested benefit.

Any thoughts on this one? I'll appreciate any & all input.

- Steve

Outside of plan language prohibiting other employers from adopting the plan sponsor's plan, is there anything else that you can think of that could prohibit an employer unrelated to the plan sponsor from adopting its plan? Obviously, the companies would be in agreement that this could happen.

Can anyone give me guidance on whether a OTC dairy relief product would qualify for reimbursement without a Dr's note? The employee sent a note stating her son is lactose intolerant and needs this product when he consumes dairy. Thanks for your help.

I have a client with a defined benefit plan and a SEP. Due to the limitations of 404(a)(7) the SEP contribution they made last year is not deductible. While I understand that the deduction can be carried forward, in reality we expect the defined benefit plan to continue and thus we may never get to a point where the SEP contribution can be deducted.

Is there any way that anyone can think of to get that SEP contribution back to the employer, since it will never be deductible?

Here's the situation: Mr. R gets a mandatory 70.5 distribution. He asked

that we withhold 100% for federal taxes. We did this in December 2003.

In 2004, Mr. R meets with his CPA. He would like to file electronically.

Everything went fine until his return was rejected by the IRS.

Seems you cannot file electronically if you withhold 100% for taxes.

Well, that means that the CPA reworks the return, Mr. R mails the return

and asked for the refund to be deposited ACH into his bank account. No,

that's not an option either. All this seems to be a result of taking the

entire distribution for taxes. We don't understand, Mr. R's CPA doesn't

understand.

It certainly seems to be doing things the hardest way possible. Can anyone

shed any light on this?

For failure to timely submit Employer contributions and/or Employee Deferrals to a 401(k) Plan, how is the 5330 excise tax calculated?- Is the 15% excise tax on the full amount of the late contribution and late deferrals or is it 15% of the interest lost on the money?

The dollar amount under 409(o) has increased to $830,000 and 165,000 for 2004. Have there been any changes to the distribution periods?

Hi,

I was under the belief (apparently wrong) that the filing requirements for 125 plans were suspended in 2001. We just received a letter from a 125 administrator telling us that we need to file a form 5500 for the fring plan and that because assets are held in trust, a Schedule H needs to be completed (and I suppose an audit?) as well.

I am trying to find clear guidance, but coming up short. Can anyone help?

Many thanks.

P.S. We do file a Form 5500 for their fully-insured welfare plan because it has greater than 100 parts. How would (or could) we combine that filing with the medical reimbursement filing if required?

Hi,

I am struggling to comprehend what type of filing is required for a medical reimbursement portion of a 125 plan. I was under the belief that 125 plans no longer had to file Forms 5500, but now I understand that a medical reimbursement portion of the plan (as a welfare benefit feature) still needs to file

The 125 plan admnistrator is saying that since contributions are held in trust, we need to complete Schedule H, which then requires an audit.

Can someone help clarify why we need the filing and the audit?

P.S. The company also has a fully-insured welfare plan that a Form 5500 is filed for because of the >100 participant rule. Is is possible to combine this as part of that filing, but what about the Schedule H??

Help is greatly appreciated.

Thanks!

A client made the last contribution last year for a participant who reached retirement in 2003.

Now, the 1/1/2004 valuation is being performed and this participant is still active.

Some obvious funding choices would be (method is Individual Aggregate)

1 Treat like a retiree and set assets to PVB and no further funding

2 Treat as active and assume 1 more year of funding giving appropriate formula increase and/or actuarial equivalent increase

Another option being proposed is to calculate the lump sum as of the valuation date and subtract the allocated assets and fund the difference in the current year.

The first 2 options I feel comfortable with but feel queasy about the additional option. Any ideas??

Do employers give the 29 month COBRA extension in cases where the employee has not yet been disabled by Social Security during the first 60 days of COBRA?

We have a participant who has requested an extension, saying that it can take years to get a s.s. determination, and that other employers accept a doctor's note only.

I have always thought that we should follow the COBRA regs., but are other employers more lenient?

Thanks.

Participant in 401k plan dies in Sept. 2001. Non-spouse beneficiary finally decides in 2004 to take Lump Sum distribution. Just before distribution is to be made,

beneficiary decides to change to installment payments per provision in 401(a)(9)

amendment signed in 2003. Beneficiary is 52 years old in calendar year following year of death (2002) - single life expectancy is 32.3 years. Now in 2004 - participant will be 54 by 12/31/04 and life expectancy is 30.5 years. In determining the life expectancy to use, is it 32.3 even though nothing will be distributed until 2004 or is it 30.5 because its the life expectancy in the year

distributions start that should be used. The RMD amendment indicates beneficiaries can elect the 5 year rule or the life expectancy rule and the election must be made no later than the earlier of Sept. 30 of the calendar year in which distributions would be required to begin (Age 70 1/2) which for this participant would have been in 2005 or by Sept. 30 of the calendar year which contains the 5th anniversary of the participant's death (w/b 9-30-2006). So it seems okay that beneficiary can make installment election in 2004 - I'm just not sure which life

expectancy number to begin with. Thanks to all for an opinion.

I'm in the middle of "due diligence" and need to find out where I can find out what the underfunded status of the multiemployer plan we are a participating employer in (and what our "withdrawal liability" would be as of a specific date).

How do I get this info? I tried pbgc.gov and freeerisa.com (am I missing something)? I cannot get a hold of the Form 5500.

Can we ask the union for this information?

I have a very basic question. Does a defined benefit plan have to be tested under 401(a)(4) nondiscrimination testing if the same benefit formula is used to determine all plan participants' benefits (e.g., 2% of compensation times 10 years of service)?