Top-hat plans, gotta love em.

I came across this https://www.thompsoncoburn.com/insights/publications/item/2018-11-07/a-top-hat-plan-checklist-for-employers and within they suggest something I had not seen before. 

Quote

Give your plan administrator the power to issue binding determinations

In the Firestone case, the U.S. Supreme Court held that, if a plan administrator has been given the discretion to interpret and apply the provisions of a plan subject to ERISA, then judicial review of a benefits denial by the plan administrator will be conducted applying an arbitrary and capricious standard of review. 

There is a split in the federal Circuits regarding the standard of review that should be applied in cases involving top hat plans. The Seventh and Ninth Circuits have applied the arbitrary and capricious standard if the plan administrator has been granted the requisite discretion required under Firestone.[3] In contrast, the Third and Eighth Circuits have held that a de novo standard applies since plan administrators of top hat plans are not subject to the ERISA fiduciary rules.[4]

Notwithstanding the split in the Circuits on this issue, a top hat plan document should grant to the plan administrator the discretion to determine eligibility for benefits and to make all other determinations necessary for the administration of the plan. In addition, the plan should provide that all determinations by the plan administrator are binding unless determined to be arbitrary and capricious by a court having jurisdiction. Even if a court holds that ERISA rules relating to the applicable standard of review do not apply, it may decide to enforce such plan provisions as a matter of contract law.

Has anyone done this in practice? Our document allows for additional eligibility requirements such as " in order to become an eligible employee, the employee must be approved by the CEO of the plan sponsor". In the past I have just clearly labeled the employee classes that would be eligible (usually officers and a certain level of management). thoughts on this?

Hi

A calendar plan has 2 owner HCEs, one non-owner HCE and one non-HCE as participants.

All but one owner HCE terminated in June 2021.

Doing some testing for 2021 and if I can switch to top-paid group, the testing will be ok.

The question is, can the plan be amended now to make the non-owner HCE a non-HCE? Never saw this situation before.

Thank you

Got a client that signed a plan document but never did anything with it and terminated it in the same year it was effective.  Do you think a 5500 should be filed for this one and only plan year?

Thanks for your help in advance.

A DB plan terminates on December 31, 2021.  The distribution for the owner (only participant) will take place in early 2022 (will be age 63 or so).  Highest 3 year average = 285K so benefit will be based on 415 dollar limit. 

Is the calculation of the maximum lump sum benefit to be paid in 2022 based on $230,000 (in effect on plan termination date) or $245,000 (the new limit for 2022 since will be paid in 2022)?

Thanks

The standard beneficiary instruction form says, "NOTE: if you name a trust as beneficiary, you must also provide additional information to the Administrator. The Administrator will notify you as to what additional information is needed."

The standard designation of beneficiary form itself says, "Trust beneficiary. If you name a trust as beneficiary, the trustee must satisfy additional documentation requirements no later than October 31 of the calendar year following the calendar year of your death. The Administrator will provide you or the trustee with the additional forms you must complete." (My emphasis)

Now, spousal consent, if applicable, would require an additional form. The Administrator would need a copy of the Trust.

What else might be required, other than the Trust and spousal consent mentioned above - and for RMD purposes, you have the requirements that the Trust must be irrevocable, must be valid under state law, beneficiaries must be identifiable under the trust, and Plan Administrator needs either a copy of the trust, or a certified list of beneficiaries under the trust. Do you normally direct all this to the Plan Sponsor's attorney do determine what "additional forms" might be needed, if any? I'm a little foggy here.

Just taking the temperature of the room here.

What date do you use as the start to determine how late the deposit was.  Is it the pay roll date, or the end of the 7-day safe harbor?

For example:

Pay date:  1/4/21

Seven day safe harbor:  1/13/21

Deposit date:  1/15/21

You you use 1/4 as the starting date for interest calc (9 days late) or 1/13 (2 days late)?

Company formerly was two partners.  One left in 2015, now sole prop.  Former partner still has balance in the plan.

Can they still file an EZ?

For a September 30 FYE plan, when calculating the RMD can/do you use the 9/30 balance or do you need to determine the 12/31 balance and calculate the distribution based on that year end balance? 

Thanks

Maybe it's the lack of coffee but I'm lacking confidence in my answer...
We have a prospective client that is a controlled group and wants to set up separate Plans; they were hoping to avoid a SH option on Plan 2, which we advised is not permissible.  So I was thinking SH match (100% on 4%) for Plan 1 and for Plan 2 QACA match.  This provides SH benefits for both employers but a vesting schedule can be applied to Plan 2.  

Am I missing something...

Does your client’s plan still require a minimum distribution after age 70½ (not 72)?

In BenefitsLink discussions, many commenters observe that a plan’s administrator must obey the plan’s governing documents, even if a document’s provision is more restrictive than what’s needed for the plan to tax-qualify.

Imagine this not-so-hypothetical.  A § 401(a) plan’s sponsor completed its cycle 3 restatement, using its third-party administrator’s current IRS-preapproved documents package.  Those documents state the plan’s minimum-distribution provisions with no update for the SECURE Act.  And instead of specifying the required beginning date by reference to Internal Revenue Code § 401(a)(9)(C), the basic plan document’s definitions section states: “‘Required Beginning Date’ means April 1 of the calendar year following the later of the calendar year in which the Participant attains age 70½ or the calendar year in which the Participant retires[.]”  Although the adoption agreement allows a user some choices about the required beginning date, all those choices refer to age 70½.  Nothing in the documents package suggests one must or may read 70½ as 72.  Assume the plan’s sponsor has made no governing document beyond using the IRS-preapproved documents package.

Imagine a severed-from-employment participant had her 70th birthday on June 1, 2021.

Must the plan’s administrator begin her distribution by April 1, 2022?

Or may the administrator interpret the plan not to compel a distribution until April 1, 2024?

Would you (or could you) interpret the plan’s governing documents so the required beginning date is no sooner than as needed to meet Internal Revenue Code § 401(a)(9)(C), and so turning on age 72?

If you might, what is your reasoning about why that’s a reasonable interpretation of the plan’s governing documents?

Or, at least I think the site is wrong in this case.

On the page Is my 401(k) Plan Top-Heavy? (https://www.irs.gov/retirement-plans/is-my-401k-top-heavy), the section titled "Making Minimum Contributions..." it says:

"If the average contribution for all key employees is less than 3%, non-key employees also receive that lower percentage instead of 3%."

I do not believe it's the average, but the HIGHEST Key EE contribution that is considered here.  So, I have one Key EE with a contribution of 2.5% and another with 1.5%, the the TH minimum is 2.5%, not 2%.

So who do I contact at the IRS to ask about it?

(Or am I really wrong?  I consulted Treas Reg 1.414-1 M-7 and the EOB Chap 3B Sev IV Part A.2 which seem to agree with my position)

Is it possible to file under DFVCP without the required auditor report attached?  5500 was already filed and accepted w/out audit report.  IRS has issued penalty notice but due to some very unique circumstances including a company merger, audit is just in the initial stages but IRS notice is coming up on 30 days.  Would it be ok to have the plan sponsor/TPA refile the same 5500 (w/out audit) under DFVCP and then amend the 5500 again once the audit is completed.  

Plan has two key employees who are the only HCE.  Plan passes ADP test b/c they defer low amounts, let's say $3,000 each (and they each make $100,000) for simplicity.  Both are over age 50.

The Plan is top heavy.

Because they aren't failing the ADP test, nothing is re-characterized.  They did not run afoul of any other limits.

Do they owe the 3% TH?  Or can we say b/c they are both over age 50 and their deferrals were less than $6,500, they can be considered catch-up and not used in determining the Key employee allocation for the year?

(There are no employer contributions.)

Hi

Calendar DB plan for 2021. Owner plus 1 rank&file participant.

As of 8/31/2021, rank&file participant is paid out, now only owner remains,

Applied to PBGC for an exemption from coverage request and got a response stating that the case is not yet assigned to an agent yet. So, no formal exemption determination yet.

The owner wants to make full 58k profit sharing plus a rather large DB contribution. Rank&file will receive whatever PS is necessary.

When is the DB plan officially considered not covered by PBGC?

When is the PS portion is limited to 6%?

Thank you.

Has anyone ever heard of airline tickets provided for pilots qualifying as a benefit under mass transit account?  

A non-profit client of mine with a 403b absorbed a smaller NFP with a 401k plan.  I told them that the two plans couldn't merge.  The participants are all being retained as employees, but obviously under the surviving employer NFP.  I've still got nightmares of the same-desk rule swimming in my head - are these people considered "terminated" and therefore can roll their 401k money into the 403b plan as rollovers?  Or is an IRA their only option?  Thanks.

Have any TPA's electronically filed the late fee, using the TPA's Banking information? If so, or not, what issues have you had - or why are you hesitant to do it? I was clearly the fault of their prior TPA - but as a matter of courtesy, we would like to pay the fee.

Thank you.

Looking at a takeover plan here, and something seems so strange that I'm questioning if there really is a problem, or if I'm cracked for thinking there is!

Plan document specifies plan year is calendar year. Fiscal year is 4/1 - 3/31.  Compensation period selected in the document is plan year (calendar).

Prior TPA (and probably in conjunction with CPA, I don't know) has been doing things as follows - we'll use the 2020 plan year valuation to illustrate, and same procedure was followed for prior years as well. 2020 valuation was based on PLAN year (calendar) compensation and hours for 2019. The 2020 valuation was run in December of 2020, (based on 2019 calendar year compensation/census) so client could deduct 2020 plan year valuation on their 3/31/2020 fiscal year tax return.

Ignoring for the moment correcting the past operational violations, what might you think is the best way forward? The plan year could be amended to coincide with the fiscal year - run a short plan year for 1/1/2022 - 3/31/2022, then full year thereafter. It seems to me that this is the cleanest way forward, although they could also, for example, amend the plan to use the fiscal year ending in the plan year as the compensation period.

Am I nuts?

I know the SECURE Act removed the requirement for Safe Harbor notices for non-elective Safe Harbor contributions.  I just wanted to make sure that it applies to both the 3% Safe Harbor and the basic Safe Harbor Match? 

Thanks in advance!

Client has a profit sharing plan (non-401k).  He lets about 15 people go which results in over 20% of the participants being terminated.  Then two more quit within two weeks of the others being let go.  The question is about the two who voluntarily quit....are they also 100% vested or not?  I have no idea if they were encouraged to quit or not.