I hope someone can help me with this question.

Example: Plan participant has $500 in her Flexible Spending Account and terminates employment.

I have always been under advisement that the employee can only file claims for eligible expenses incurred prior to her termination date. Any monies not claimed are lost.

Question: I have recently heard (from a number of sources) that an employee can choose to continue contributions (on a post-tax basis) to the employer in order to extend his/her termination date from the plan.

The terminated employee has no tax advantage in making this additional contribution, but is effectively allowed additional time as an active participant to incur the necessary claims to take out the remaining account balance.

Can anyone tell me if this this legitimate?

THE 2001 LIMIT FOR SIMPLE PLANS IS $6,500. Thus, with sufficient income, a $13,000 contribution is possible in a SIMPLE IRA ($9,900 in the case of a 2% nonelective contribution because of the $170K compensation cap). In a SIMPLE 401(k), the $170,000 compensation cap always applies (as does the 25% limit); thus, $11,600 is the maximum (with 3% match) and $9,900 in the case of a (2%) nonelective.

Is there any requirement to provide a 204(h) or 204(h) type notice to fired employees affected by a partial termination of a DB plan?

Is the required minimum distribution for a 72 year old that has died this year paid to the decedent as income in respect of this decedent and reported on that decedent's taxpayer ID number on the 1099R or on the bene's taxpayer ID number?

I recharacterized my Roth IRA back to a traditional IRA in 12/99 and then converted the same IRA to a Roth IRA in 1/00. I did this for the tax benefit. Can I now do the same thing again and recharacterized my Roth IRA to a traditional IRA and then again back to a Roth in January of 2001? I did read that you cannot do both in one year and that there must be thirty days between the transactions.

I have 2 PEO (Professional Employer Organizations) that have 401k plans and unhappy with their current adminstrators. Does anyone know of a good TPA for PEO's?

Any suggestions would be great!

Are there any situations in which a 403(B) plan is not subject to ERISA if the employer makes contributions? We have a plan in which the employer makes contributions regardless of whether the employees make any voluntary withholdings.

We are also looking at Freezing the current plan and making the new plan a matching plan of employee contributions to encourage participation. Based on what we have researched, this would be subject to ERISA and 5500 reporting.

Has anyone seen a NQ Deferral plan that allows for the deferral on unused vacation? Any thoughts or comments on this would be appreciated.

If a new plan is implemented in April, 2001 and wants to use the safe harbor provision, must the first plan year be a short plan year or can the plan be made effective retroactive to the beginning of the plan year (i.e 1/1/01)?

Does anyone have experience with the IRS concerning Demo 7 of Schedule Q - Nondiscriminatory Past Service Credits? We have a plan converting to a cash balance format with a provision to provide an opening cash balance equal to the greater of the present value of the old accrued benefit or the theoretical cash balance as if it was in place for all prior years. As this is an increase in a past service benefit (for some)I assume we have to satisfy the nondiscimination regs and complete Demo 7. Does anyone have experience with the IRS on what criteria the Service considers when ruling on this "facts and circumstances" test?

I have seen three different lists of IRC requirements for governmental plans. All three state that benefits must vest when an employee reaches normal retirement age (NRA), but none gives any cite for that requirement. Pre-ERISA 401(a)(7)requires vesting upon termination of the plan or discontinuance of contributions but not when an employee reaches NRA. Is there a requirement for vesting upon reaching NRA, and, if yes, where is it? Thank you.

Assume a Non-Title I 403(B) with a commingled 403(B)(7) custodial account. Is it permissible to perform the participant level accounting on a traditional recordkeeping system not controlled by the custodian? The custodian would have to accept transaction, asset and distribution information as delivered by a TPA's recordkeeping system, and perhaps sign off on statements, but have no in-house record of participant data.

A 501©(3) organization has the following plans:

403(B) Salary reduction agreement up to 15% of pay

403(B) Match up to 5% of pay

401(a) Integrated 5% to TWB, 10% over TWB

Got a guy making $73,440 in 2000, who wants to defer the max.

The way we see it, he'll get $3,672 match and $2,472 401(a) (partial year comp).

His hire date is May 1, 1999. Prior exclusions are $9,498.

Comp $73,440 times 20% times service 1.67 years less $9,498 prior exclusion is $15,031. $15,031 less 401(a) and match is $8,887 for the exclusion allowance.

(The 401(a) is subject to vesting, if it matters. Also, all contributions are to TIAA/CREF, though under separate contracts for the 401(a) and 403(B) portions).

Letting him defer $10,500 is OK under the 415 limits. What are you supposed to do, if anything? Educate the employee of the "C" election, warn him that he's losing a future potential "A" or "B" election, nothing?

Any help is appreciated.

Who would be the beneficiary in the following scenario?

Taxpayer A converts his traditional IRA ("TIRA") to a Roth IRA ("RIRA") in 1998. For the TIRA the primary beneficiary was his spouse but for the RIRA the beneficary was a qualified trust [such that the beneficaries of the trust are the designated beneficiaries for 401(a)(9) purposes].

Taxpayer A dies in 1999.

In preparing Taxpayer A's estate the executor finds out that A's 1998 MAGI needs to be adjusted such that it will exceed the 100K limit. The executor recharaterizes the RIRA back to the TIRA by the 12/31/1999 deadline.

Who is the effective beneficary for this IRA?

i)On the one hand, Taxpayer A's last intention before he died with regard to the beneficiary was expressed on his RIRA. Which would leave it to the trust.

ii)On the other hand, 1.408A-5 Q&A-3 says the effect of the recharacterization, in this case, the RIRA "is treated as having been originally contributed to the Second IRA [herein the TIRA] on the same date ... that it was made to the the First IRA [herein the RIRA]". This implies to me that the beneficiary should then be the ben. of the TIRA, the spouse.

Seems to me result (i) makes the most sense. For example, the executor should not have the power to change the beneficiary designation of the decedent. Note in this case

1.408A-5 Q&A-6© gives the power to the executor to make a post-death recharacterization. It does not say it has to be a mandatory recharacterization. If result (ii) was correct the executor could change the intentions of the decedent. What if the executor was the beneficiary of the TIRA? You see where I'm going...

In addition, 1.408A-5 Q&A-1(a) says that if both the RIRA and the TIRA were within the same trustee instead of a tranfer back to the original TIRA, the RIRA can be "redesignated" as a new TIRA; which in this case a redesignation would keep the RIRA's beneficary, the trust. One would think that the effective beneficary would not rest on the way the trustee chooses to processes the recharacterization.

Does anyone have a citation that would apply, other than the previously quoted 408A-5 regs in this scenario? I think that result (i) should be right; but I have no legal basis for it.

One could go on and complicate things by asking about a fractional recharacterization and about whose lifetime would be considered for MRD purposes in the recharacterized IRA but I think I'll stop here for now...

Is there any instance where loan repayments can be made pre-tax? My client's TPA failed to set up loan repayments and is now going to "recharacterize" previous deferrals as loan repayments. They have also stated their intent to continue this practice, not just as a means of correction.

Under Labor Regulations 2510.3-1(B)(2), an employer's self-funded short-term disability plan can be treated as a payroll practice that is not an ERISA welfare benefit plan. One of the requirements is that the amounts must be paid from the employer's general assets. When the employer pays the full cost of the disability payments, this is an easy question. But what if the employer provides a base level of benefit (e.g., 60% of compensation), and permits employees to "buy-up" to a higher benefit (e.g., 80% of compensation)? Are the disability payments still being made from the "employer's general assets," so that the disability benefits are still a payroll practice and not an ERISA welfare benefit plan? The employee contributions are not segregated from the employer's general assets prior to being used to pay benefits.

Can a non-registered group retirement annuity be used as the investment for a governmental 457 plan? Our office has a disagreement with this; one source references the Securities Act of 1933 that non registered products cannot be used with non-corporate entities, the other opinion is that the state's enabling statute determines what investments would be appropriate for the plan.

Your opinions are appreciated.

Can a participant in a governmental plan with a 414(h) pick-up provision roll his account balance into a qualified non-governmental 401(k) plan?

Just checking: Can we use a 414(s) definition of compensation in calculating a participant's EBAR, or do we have to use a 415©(3) definition? What I'm really looking at here, of course, is limiting compensation to that which is earned during plan year while a plan participant. (I know that for top-heavy minimum, I still have to count plan year compensation (415©(3) definition).) The proposed new comparability regs got me thinking about this. As I understand the regs, we can use a 414(s) definition for the "1/3" gateway, but have to use the 415©(3) definition for the "5%" gateway.

Thanks.

Has anyone had experience setting up a 401(k)SOP, that is, a combined 401(k) and ESOP plan involving an S corporation? Are there any problems under the S corporation rules if the only contributions to the ESOP portion of the plan are salary deferrals directed by the employees for investment in employer stock? Any other problems from a qualification standpoint?