Is is considered insider trading if an employee would re-allocate his 401(k) investments to our company stock fund based on confidential information? I know it is illegal to do this on the open market, but not sure how it applies to company stock within our retirement plans.

Last week I posted a question re: how to verify a TIN. I was referred to freerisa.com, where I registered and was able to use their EIN finder. So far I'm 3 for 3; each number I entered came up zilch. Researching some old threads on TIN's I discovered that the IRS purges trust ID numbers after several years of inactivity. Is there a way to reactivate a TIN? If not, I can just see it now -- I file a SS-4 to get a new TIN and the IRS comes back and says one was already issued. But if you use it on 1099-R and 945 forms they reject the filings. Thanks all. Maverick

We have a partnership with approximately 20 partners and staff of 100. The company wants to put in a cash balance plan for the partners only (already have a xtested and 401(k) plan) and then loan monies from the plan to the partnership. In reading the definitions of who is a party in interest we believe this is truly a prohibited transaction. Two of the partners are attorneys who argue that the definition is not clear on who are the employees of the employer? Any thoughts regarding this is appreciated.

One of my clients has a 401(k) plan which also permits after-tax contributions. Traditionally, participants separating from service and seeking to avoid taxes would elect to roll over 100% of the distribution to an IRA. The plan administrator would segregate the after-tax contributions, roll over the remaining amounts, and issue a check (non-taxable) for the amount of the after-tax contributions only. Great result--some cash for the separating participant, no taxable event.

Following the new rollover rules for 2002, the administrator is now rolling over the entire distribution, including the after-tax contributions. The IRA custodian is saying that the 10% penalty tax applies to a pre 59.5 withdrawal of these after-tax contributions. This doesn't seem right to me, but I'll be the first to admit that I don't have a lot of IRA experience. I'd appreciate any insight that could be offered, as well as any cites or links that might be appropriate.

Thanks in advance for the help.

I have been told by the Plan Administrator of a governmental thrift plan (similar to a 401(k) plan) that it decided to collect new beneficiary designation forms. It supposedly sent a letter in 1998 to all participants, including retirees, advising them that the prior beneficiary designation forms were revoked, and that if the individual did not submit a revised form, then the terms of the plan would apply. The plan provides that the beneficiary is the spouse, if surviving, then the estate.

Has anyone heard of a plan doing such a thing? Was that action in the best interest of the participants?

In my client's situation, the Plan Administrator is telling us that the 84 year old aunt did not return the correspondence in 1998, so she had no named beneficiary, and payment must go to the estate. The Plan Administrator's position is that the beneficiary designations signed at the time of the participant's retirement were revoked by its 1998 correspondence.

Oh, and, by the way, the plan administrator also mentioned that the 2000 correspondence from the record keeper that said that minimum distributions are based on the niece as beneficiary does not matter, since the beneficiary for minimum distribution purposes could be different than that for death benefit purposes.

Just wondering if anyone has heard of other Plan Administrators doing this.

Thought everyone ought to see this, and be made aware of what some are trying to do...

SCAM - Loaning deferrals to participants

I think everyone ought to view this - so here is the link to the discussion on the 401(k) board.

SCAM - Loaning deferral monies to participants

Is there any guidance related to the expenses incurred by an employer necessary in making a "DRO" a "QDRO". In other words, if the Plan's attorney & actuary review the "DRO" in order to determine what needs to be changed or clarified in order to make it a "QDRO", can those fees be passed on to the participants and/or alternative payee?

As many of you know, if your dealing with an attorney with little or no QDRO experience, you can rack up quite a bit of time getting the DRO qualified.

Okay - let's talk about this - has anyone seen this?

Participation Loan

I stumbled upon this site while doing a search, and just could not believe that someone would actually try to get this established in our country. Talk about taking advantage of people.

The most interesting portion is in how the "interest" is calculated, and the fact that the formula does not incorporate losses that a participant may incurr.

Let's beat this up, and make everyone aware of some of these scams in the market.

Just received my "Notice of Active Status" from the Joint Board and I am a little confused as to when I should start using the "02-" prefix for Schedule Bs, etc. The notice I received states "Under these extensions, your "99-" prefix is valid through August 31, 2002. Beginning September 1, 2002, you must use the prefix "02-" before your enrollment number."

Now I know that this is relating to the extension for continuing education due to 09/11. However, I can't determine whether I have to wait until 09/01/02 to start using "02-" even though I've been approved for "active" enrollment, or should I start using "02-" now since I've been approved?

If one cannot locate the beneficiary of a deceased participant with a $ 600 accoutn balance in a terminated DC plan, what are the options? We have tried a private locator company.

I know the PBGC program allows you to purchase an annuity (viable here?) or deposit money in an individual bank account opened in the participant's name

I have heard of sending 100% witholding to IRS; has anyone done this successfully?

Are there any other options? Does anyoen see a problem with any of the above mentioned?

A new comparability PS plan fails 410(B) for calendar 2001 due to several participants terminating employment. The terminated participants all had over 1,000 hrs. and were all terminated on the same day. Plan has last day requirement for allocation. The document does not contain any failsafe provisions. Only a portion of the terminated participants would have to get an allocation for the plan to pass 410(B). Since they were all terminated the same day, with presumably the same number of hrs., is there a way to avoid giving allocations to all of them?

Also, for new participants entering mid-year, the doc's definition of compensation says to only recognize comp from DOP. I'm pretty sure it's OK to also use partial comps for cross-testing but would appreciate verificiation of this. Are there any regs that require the use of total comp for the year in such a situation?

Thanks in advance for all help.

Looking at the In-Service Distribution issue with respect to the 4 year look back. Does the participant's status as of the Top Heavy Determination date have any effect.

Example: 12/31/01 Determination date for 2002. Participant terminated in 2000 but had made In-Service Withdrawals of $1,000 for each of 1997, 1998, 1999.

Q1-Can those withdrawals be ignored?

Q2-Are Required Minimum Distributions considered "In-Service Withdrawals"?

How should a 5300 and 5500 be completed for a plan that passes the 410(B) ratio test but must use the Average Benefits Test to pass the 401(a)(4) general test? For example, consider a cross-tested plan that provides a profit sharing contribution to all participants, but in which at least one rate group passes only by virtue of the nondiscriminatory classification test and the average benefit percentage test. Does this plan complete the 5500 Schedule T indicating that the plan passes coverage by the ratio test or by the average benefit test? Does this plan complete the 5300 (line 13) saying Yes - plan passes the ratio percentage test, or No - plan does not pass ratio percentage test? Should or must a Schedule Q Demo 5 be done to show the Average Benefit Test, or is it enough to just do Demo 6 (the general test demo - which might need to include the Average Benefit Test)?

Suppose the following:

- an MP plan's document specifies that forfeitures are "used to reduce" future MP contributions.

- the MP plan provides 204(h) (now 4980F) notice to the participants stating that the MP contributions will cease and the plan will merge into an existing PS plan.

- the MP plan has an "employed on the last day" benefit accrual requirement, and provides the employee notice early enough to prevent a MP contribution from accruing for its final year, but late enough that there have already been forfeitures added to the MP plan's forfeiture account during the year.

Given the plan merger and the fact that there is no final MP contribution that the forfeitures can be used to reduce, how are those final MP forfeitures to be handled? Should the merger amendments address this (I assume so) - and if so, what is the common or recommended way to handle these forfeitures? Reallocate to the MP participants eligible to share in the reallocation that plan year?

Thanks.

discrimination regs under 401(a)(4), 410(B), and the like after 2003, how will that effect the arrangements sold by several insurance/annuity and custodial account vendors.

Specifically, I'm thinking of one-time irrevocable elections which are deemed employer contribution, not employee deferrals subject to 402(g).

I understand the "discrimination" regs. (LOL) for non-ERISA 403(B) plans is that an eligible employee is eligible for one 403(B) arrangement or another.

Ergo, the 403(B) arrangement that holds employer contributions (one-time irrevocable elections) has just the superintendents (HCEs) and the other 403(B) is salary deferral elections with everyone in it.

Will this arrangement fly in 2003 if governments are subject to the discrimination rules? Assume for purposes of this question that the arrangement could not be cross-tested.

Client wants to set up a new 401(k) Plan. In addition to several outside mutual funds, they want to use their hedge fund as an investment alternative.

Since the client runs the Hedge Fund, the fund will pay the Plan Sponsor management/incentive fees.

Am I correct in stating that this is a Prohibited Transaction?

Two corporations are members of a controlled group but have separate 401(k) Plans. I seem to recall that both plans must elect to use the same testing method (i.e. current year versus prior year). Does this still apply during the GUST rememdial period or can one plan use prior year and the other current year.

I appreciate your thoughts as well as the guidance as to where this is actually stated in the regs. It may be a result of the definition of employer and treating members of a controlled group as one employer.

A small DB plan with frozen benefits has been merged with a larger DB plan as of 7/1/2001. Both plans have calendar plan years. Are my following assumptions correct regarding the 2001 Form 5500 for these plans?

(1) The smaller plan will file a final form 5500 for a 6-month plan year.

(2) The larger surviving plan will file a form 5500 as if the plans were merged on 1/1/2001. In other words, the Schedule B will show 1/1/2001 amounts that are inclusive of the merged plan so that all amounts projected to 12/31/2001 include the merged plan.

Thanks in advance.

I have a client who invested $10,000 into a non-qualified variable annuity. It was surrendered in full in 2001 for $7500. Where does the loss get deducted on Form 1040.