I think this is probably stretching the rules but thought I would ask anyway.

A plan that uses prior year testing for the 2003 plan year and also wants to include a QNEC as part of the prior year ADP must contribute that QNEC to the plan no later than 12/31/03 (assuming calendar year plan). Does that QNEC actually have to be allocated to the account(s) of the participant(s) prior to 12/31/03? For example, if the plan has a forfeiture balance at the end of the 2003 plan year, are those forfeitures considered deposited prior to 12/31/03 and can then be allocated as a QNEC (assuming document provides for) in 2004 (at time the 2003 testing done)?

If a 401(k) plan offers a full menu of mutual funds, representing all of the major asset classes, but limits a participant's INITIAL enrollment choices to five asset allocation funds (conservative to aggressive) and a fixed option, with the ability to make investment changes on-line or by VRU after enrollment, does this create any potential 404c or fiduciary liability problems?

I don't see that it does but I am interested in a fresh perspective.

I have a new plan which covers 5 companies that are considered members of a controlled group. Last year, the prior TPA performed separate testing for each "division". Am I missing something which would allow for this?

I did not think that you could restructure a plan and test separately with respect to related employers, when they are covered under the same plan. I know that as long as each member maintains a separate plan and is not aggregated for 410(b) purposes, they are tested separately.

Does anyone know of any reason as to how they could be tested separately under the same plan?

Does the employer need to include amounts paid to the Dependent Care FSA after-tax while on LOA, in Box 10 on the W-2?

Hi-

An earlier thread (from 2002, below) discussed noncompete provisions as a SRF under section 457(f), and some members expressed concern about whether they work. Has anything happened in the meantime to change your mind?

I have seen some suggestions that the Service's failure to address this issue in the recent 457 regs is a "tacit acknowledgment" that these provisions work. I am still concerned however that, at best, the guidance in section 83 applies.

I have heard some of the major consulting firms say that use of noncompetes as a section 457(f) SRF is now very common. (For example, a 2 year/ 50 mile radius noncompete.) Is this your experience as well?

Obviously legal advice shouldn't be based on the herd concept, but sometimes there is safety in numbers, and I would assume this is another area where any adverse guidance from the Service might be applied prospectively.

thanks.

card

http://benefitslink.com/boards/index.php?s...2&hl=noncompete

I am looking to update my file on the SEC communication requirements for a plan with Employer stock. I know that the SEC issued Release No. 33-6867/34-28094 (June 11, 1990 Federal Register #23909) back in the early 1990's. Has that been updated? Does anyone know where I can get a link/copy to this? I have general information regarding what we are required to distribute but would like to look at some of the source documentation to make sure we are still meeting requirements.

Thanks in advance for your help.

PAL

I have about $4500 in a Roth, I was thinking about using it as a down payment to my first home. It would be around 5% down. Can I use it without being taxed and penalized? Any help on this would be greatly appreicated.

I generally do not work with DB plans. The document states that participants are allowed to take distributions at age 50. If the participant cashes out his account will he be subject to the additional 10% penalty? Thanks!

I was hoping we would have something final on the 1/1/04 RPA rate. Anyone know what’s happening in DC with this? I have several clients whose contribution is driven by the additional funding charges and they are very interested in this. I don't really want to release a report using 105% if it will ultimately be changed back to 120%.

Can anyone tell me how you handle balances less than $5,000? How long after you mail the notice to the participant do you wait before processing the distribution? I know you have to wait at least 30 days, but I am wondering what the "standard" timeframe is (if there is one). Do you think 90 days is average?

I'm a bit of a dum-dum today. Can someone point me to where the requirement exists that IRC Sec. 409(e)(3) applies to ESOPs (i.e. that non-publicly traded companies with ESOPs have to have pass-through voting for corporate matters such as mergers, etc.).

Since 409 is for TCESOPs (now gone), the only support I find is 4975(7), which clearly states that 409(e) applies if the employer has registration-type securities, but is silent as to whether 409(e) applies if the employer doesn't.

Everywhere I look it says that these non-publicly traded ESOP benies have pass through voting rights, but what is the cite?

Hello,

My employer allows up to 11 vacation days to be carried over from one year to the next year, but they must be taken by 3/31 of the following year.

Due to a new project assignment beginning early 10/03 and then subsequent illness and current STD, I will probably be unable to take the 11 vacation days that I accrued in 2003 before the mandated 3/31/04.

HR has told me that I will loose the days if I do not RTW in time to take all the days before 3/31/04 and that I cannot be paid for the days: there are no exceptions

Is there anything that I can do?

Thanks...........blb

I have an employer that does not want to file an extension on the company tax return. They would like to make the 2003 contribution after that date. They understand that they would not get the deduction for that year. Is it possible to do this and still allocate it to the 2003 plan year? Can you take the deduction for the 2004 tax year?

Our health care plan has an inpatient hospitalizaiton copay of $500. The inpatient hospitalization began in November 2003. Patient was released in January 2004.

Employee was not enrolled in flex spending account for 2003, and signed up for $650 for 2004. He has sent in a claim for reimbursement of the copay from the flex spending account for 2004.

Is this expense eligible for 2004 reimbursement and can you provide why?

We are contemplating merging several old inactive DC plans into a single plan for administrative convenience. Other than the example given in the instructions for Form 5310-A of a money purchase plan with an oustanding minimum funding waiver, is there any other situation where a 5310-A would be required? The assets will be combined to form the assets of the merged plan, and each participant will have the same account balance after ther merger as before.

Our client sponsors a qualified plan. A participant in the plan is going through a divorce. The divorce court, through the divorce decree, has ordered the plan to pay the ex-spouse 100% of the participant's vested account balance. The divorce decree goes on to provide that the ex-spouse must then pay 50% of the distribution to the participant. The participant is not yet 59-1/2 and is still actively employed. First, does the plan have to worry that the DOL or IRS will raise any objections to the QDRO? Second, is this a tool by which the participant can get at some of his (in this case) retirement plan assets while avoiding the early distribution penalty tax? The divorce decree also provides that the participant, once he receives 50% of the distribution initially made to the ex-spouse, will then be responsible for reimbursing the ex-spouse for his "share" of the income taxes applicable to the distribution.

Thanks so much for your help and comments.

Is there such a thing as a "loan rollover"? OR is it really a "loan transfer"? Is one "term" better than the other?

Why would a plan allow a loan rollover/transfer other than in instances of plan merger or transfer?

There is a deceased participant in a retirement plan that has named trusts (each trust for a specific individual) as her beneficiaries. How is the distribution handled and taxed?

Utilizing Rev. Ruling 77-2 and recognizing the impact of the window in the next valuation is a clean approach ; but if you wanted to reflect the window in the current year and if the window opens after the beginning of the year and closes before the end of the year and if you have a choice to perform the valuation either before the window opens or after it closes then I was wondering how practitioners are handling it ? i.e. are there any compelling reason(s) why doing the val. pre-window with appropriate assumptions is preferred over waiting until you know the outcome of the window ? or vice-versa ??

There have been discussions in the past on this and I was just wondering what the current thinking is ?

assuming notice is given timely, when is the latest time the employer has to actually adopt the safe harbor plan amendment? in this case the plan is an existing 401(k).