We have a pretty straightforward small 401k plan (about 6 participants) that uses W-2 wages for plan compensation.  The owner wants to transition from W-2 wages to providing "guaranteed payments" to all employees.  I am not certain I completely understand what this involves but he says they can withhold 401k contributions before making the guaranteed payments.  But do guaranteed payments also have federal/state/local taxes withheld before being paid? If not, can these wages still be used for 401k plan purposes?

Any advice on what questions we should be asking would be greatly appreciated.

Thank you

I'm setting up a DB and 401(k) for a prospect.

All employed on the effective date enter the plan on the effective date; anyone hired after, 12 months of service.

Plans will state Vesting from the effective date of the plan - DB has to be -3 year 100%, but PS will use 2/20.

I do recall a thread mentioning this would not be possible?

I have a client who received an in-plan Roth transfer election form from a participant on 12/27/21. The request was submitted to Nationwide the custodian on the same day.

All participant's contribution sources are record kept in the Nationwide account. No transfer of funds from outside of Nationwide. Nationwide shifted the funds from pretax source to roth on 1/3/22. Is there any guidance available that would allow the conversion to be taxed in 2021 as requested by the participant even though Nationwide will be issuing a Form 1099R for 2022?

I reviewed notices 2013-74 & 2010-84 which states taxed in year of receipt or year of conversion. Can one argue that the conversion occurred at the time of the election?

Hi, 

Good Morning!

Looking for guidance on Successor plan. One of the terminating plan the plan sponsor intends to establish another 401k plan with a different EIN, Will this lead to a successor plan situation?  I understand if a 401k plan is set up/exists from the termination date and until ending 12 months after distribution of all the assets can lead to successor plan however I'm not sure if EIN has anything to do with the successor plan rule. 

Can an employer set up another 401 k plan with a different EIN? 

Thanks 

I looked, couldn't find the answer.  

For a  business to be eligible to file an EZ can the business have employees but none of them are eligible due to the hour requirement?  Case in point,  summer camp where counselors all work less than 1,000 hours.  Only husband and wife owners work 1,000+ so only husband and wife are participants.

Thanks

We have a client that is a non-profit organization with a 401(k) Plan.  I know they could have either type of plan- (403b or 401k)..They want a nutshell reason why a 401k is better than a 403b or/an explanation of the primary differences in the two.  Does anybody have a concise answer or opinion on this.   They don't have many participants yet.  Thanks!

A client has chosen to withdraw from a union MEP and wonders how other employers in this situation have addressed the loss of potential future benefit to unvested participants. Has anybody had this experience / negotiated with a union to address some recompense?

Good afternoon!  Generally when we put in exclusions from compensation in the document we state specific items to be excluded.  I have a client that basically wants the document to state that compensation excludes "All Non-Base Compensation".

Would this type of generalized exclusion be viewed as acceptable by the IRS?  The software would support it, under the "Other" exclusions.

Thanks in advance!

4 companies (S-corps) are part of a controlled group and sponsor/participate in a safe harbor 401(k) PSP with 1 year eligibility and monthly entry dates. Effective January 1, 2021, one of the companies changed ownership and is no longer part of that controlled group of companies. Their employees that were participants as of 1/1/2021 are still participating in the plan. They actively deferred in 2021 and have received a match. The plan's profit sharing allocation has not yet been deposited. 

The company that changed ownership, Company A (S-corp), identifies with business code 484120 (general freight trucking long distance). There are 5 owners - 3 of which own 26% each and the other 2 each own 11%. This same 5 owners also have identical ownership in another company (partnership), Company B, that identifies with the same business code. Company B has a SIMPLE Plan effective July 1, 2020 with full eligibility and the 3% match election. 

Does the existing 401(k) plan need an amendment to add Company A as an unrelated participating employer effective 1/1/2021 effectively making it a MEP? Do Company A and Company B form a new control group? If yes, then how do they sort out the 401(k) plan that Company A currently has and the SIMPLE plan Company B currently has for both 2021 and now 2022?

Thanks!

I know that a 5% or better owner must take an RMD when they turn 72 even if they are still working.  Is a wife also required to take her RMD even if still working?  Do attribution rules require her to take an RMD once she becomes RMD age even if she is still working?

I've heard that some high level players are saying that IRS is no longer accepting applications for Vol Sub Minor Modifier determination letters in the client's name for Cycle 3 Restatements but haven't seen anything in writing. I'm sure these folks' comments were misunderstood - right?  

If an employer wants to establish a new program to make lifetime payments to some former employees who retired long ago, would the program be considered an ERISA pension plan?

29 CFR §2510.3-3(b) says that the term "employee benefit plan" does not include a plan under which no employees are participants covered under the plan.  The definition of "employee" is "an individual employed by an employer".  At least one court has interpreted that language to mean that ERISA covers a plan only when the employer established it to provide benefits to at least some of its then-employees.  A few other courts have said former-employee-only plans are not ERISA plans based on the policy argument that the objective of ERISA is to ensure that workers get promised benefits upon retirement, especially since some of the promised benefits were in lieu of other compensation that workers may have received, and those objectives do not apply to such plans.

Is anyone aware of more definitive authority that could support (or contradict) the position that ERISA does not cover plans that are established to provide benefits to former employees only?

The requirement is that a QJSA must provide a spousal benefit of 50% to 100% of the participant's benefit. Most plans allow the participant to elect a 50% , 75% or 100% QJSA. A company wants to amend their plan to make the 100% QJSA mandatory unless spousal consent is obtained. While this clearly meets the IRC QJSA spousal consent requirements, doesn't this raise other plan concerns. For example, the plan participant by being forced to elect the 100% QJSA will be receiving a significantly reduced annual benefit. Is this problematic?

Client failed to give QSEHRA notices for last four years. We realize there is a $50 per employee per notice failure for each year, with a maximum penalty of $2500 per year. My question is do we self report the failure and pay it? If so, how? I am not seeing any specific form for doing so. It does appear that an IRS examiner would use a form 8278, but that looks like an internal form.

Another twist is that the client exceeded the contribution limits in some years and/or did not satisfy the same terms requirement. Consequently, it failed to be a QSEHRA years ago. I have already looked at form 8928 that should be filed with respect to the 4980D issue and the potential excise tax of $100 per day per employee. If we do that, is it possible to get the QSEHRA back on track so to speak, in other words making it a valid QSEHRA going forward? Or do we need to terminate the old QSEHRA and start a new one? 

Thank you.

I have a plan sponsor with an unusual money purchase plan. The participant's can set up their own brokerage accounts to receive contributions from the plan sponsor. Each participant is the trustee of their own account. 

An employee who is eligible to receive the next quarterly contribution is leaving the employer to live in Europe before the contribution is made. Long story short, she cannot open a brokerage account and just "does not want" the contribution. 

Thoughts about how to resolve this? I don't think that the employer can just not make the contribution. 

Let's say a client has 6 month eligibility for 401k but a year wait for a match in the document.  But let's say the client communicated to the previous TPA that they wanted the match eligibility to line up with 401k eligibility and communicated that to the prior TPA when they were doing the Cycle 3 restatement.  We prepared the match based on 12 months eligibility but the client has already told the employees they are eligible for the match sooner.

Let's say hypothetically we didn't even look at the document and just prepared the match based on the 6 month eligibility because the client told us to and they funded it.  Then a CPA auditor comes and says "hey what the heck you didn't use the 1 year eligibility for the match??".   Our response:  "Good catch, I'll self correct with an amendment today to get rid of that."

So by that rationale, if we catch it BEFORE the mistake is made (which is our case), shouldn't we have the same opportunity to self-correct via amendment, especially when we are increasing benefits to non-highlys?  It seems unfair to punish someone for NOT making a mistake.

A husband and wife are participating in the same plan and they are each others' beneficiaries.  The wife dies in 2021 and the husband elects to 'roll over' her $40,000 benefit within the plan, that is, her benefit will now be shown as a segregated rollover account for him in the plan.  The resulting 1099 will show him as the recipient and use code 4G to show a death benefit that was rolled over.  The husband then terminates his employment and elects to roll over his $30,000 account balance and the new $40,000 rollover account into his IRA during 2021.  The 1099 for that rollover will show a gross distribution of $70,000 and show code G.  The 2 1099s will seem to show distributions totaling $110,000 for the husband as recipient when he only actually had $70,000 paid out.  Is this the correct way to report these transactions?

• Traditional IRA owner, 82, died in December 2021 - He took his 2021 RMD prior to his passing
• Surviving spouse, 81, 100% primary beneficiary
• Surviving spouse transferred his IRA assets to her traditional-IRA. However the transfer of assets occurred in 2022 - therefore his IRA had a 12/31/21 value

Question(s)

• Is a 2022 RMD due on the (now deceased husband's) IRA based off the 12/31/2021 account value?
• Does the wife include the balance in determining her 2022 RMD? 

What am I missing?

All guidance is welcomed

Plan A is a Safe Harbor Match, calendar year-end Plan that provides for prevailing wage contributions and a cross-tested profit sharing contribution. Allocation conditions for profit sharing are last day and 1,000 hours. Document allows prevailing wage contributions to offset all Employer Contributions.

I'm (somewhat) familiar with using Prevailing Wage contributions as QNEC in the ADP test. However, as the Plan is Safe Harbor, I don't need the prevailing wage to count as a QNEC for ADP testing. 

I am struggling with how to approach the Prevailing Wage contributions for cross-testing. Its my understanding these contribution are treated as Non-Elective Contributions for testing purposes. Thus, logically, I should include them for gateway and 401(a) cross-testing. This is a takeover plan and based on the 2020 Valuation Reports, I can see the prior TPA included the Prevailing Wage in gateway and 401(a).

Is this the general consensus in how to test these prevailing wage contributions?

If I were using the prevailing wage in ADP as a QNEC to help pass ADP testing, I think there would be some additional considerations/limitations in whether and how to use those prevailing wage contributions in cross-testing. But, since I am not doing so, is it as straight-forward as just adding them as if they were profit sharing contributions?

We have a restaurant client that is having an issue with their tipped employees that are deferring into their plan.  I have had large restaurant chain clients in the past and this was never a problem, so I am trying to see if anyone has run into this and if so, how did you handle? 

If their tips are paid in cash, some of the employees, after taxes and deductions have $0 paychecks, so there is nothing to take the deferral from.  They discussed requiring the employees to give the cash back to the employer to make the deposits, but is that the best solution?  Another thought was to exclude tips but then I am not sure they would pass 414(s). 

Any thoughts, guidance is appreciated.