I. Company B is a wholly owned subsidiary of Company A. 401(k) plan (Plan 2) covers only employees of Company B. However, less than 2% of Company B employees are eligible in Company A's 401(k) (Plan 1), but all other Company B employees are covered by Plan 2. Ten percent of Company B's employees (all of whom are eligible only for Plan 2) will be terminated from B and will be immediately employed by an unrelated Company Y. (No corporate transaction takes place between Company A or B and Company Y).

Assume the transferred employees from Company B to Y are doing the exact same job, in the same location and under the same supervision. Company Y assumes responsibility for administering and maintaining the same level of benefits for Plan 2's tranferred 401(k) assets. When a transferred employee terminates service from Company Y, Company Y will be responsible for offering the distribution options.

II. Three months after this transaction takes place, Company A will sell all of the assets of Company B (including the other 90% of Company B employees) to an unrelated Company Z. Plan 2 will terminate shortly afterwards. Company A, nor any other member in its controlled group, will have any association with Company Z after the asset sale.

1. Is Company Y administering Company B's plan because of the "same desk rule?" What if Company Y assumed sponsorship of the transferred assets under a new plan with the same level of benefits from Plan 2?

2. If we assume that the "same desk rule" applies in I., what is the effect of the later termination of Plan 2? Does Company A or B have responsibility to the previously transferred employees now in Company Y? Does Company Y have to give the transferred employees a choice between distribution or leaving the assets in a newly created plan?

3. What is Company A or B's responsibility to the other employees upon sale to Company Z and termination of Plan 2? Are the assets distributable to these employees because Plan 2 is terminating -- 401(k)(10)(A)(i)? What about the disposition of assets or subsidiary distribution options under 401(k)(10)(A)(ii)(iii)? How does the Plan 2 termination affect the viability of using these subsections (ii) and (iii) as authority to distribute?

4. What are Company A's options for the less than 2% of employees who will be transferred to Company Z and who were eligible under Plan 1, which is not terminating?

Does anyone know where I might be able to get a list of Stock Thrift Banks with ESOPs? I need only a couple of east coast states and I assume this information must be available somewhere. Also, do you have a web address for the ESOP Association?

Many of our employees our covered by an STD plan that lasts 52 weeks. When these STD benefits end, we are unsure of how we should handle these employees. Can we legally terminate them, or must we continue to keep them as employees?

Facts: Company X sponsors a 401(k) plan. Company X is a bro-sis group with Company Y and Company Z. Company Y is Candadian and all employees are Canadian citizens. Company Z is U.S. based as is Company X. Neither Company Y nor Company Z have any HCE's. All HCE's are employed by Company X.

Discussion: I believe Company Y can be ignored so long as the plan document excludes non-resident aliens as a statutory exemption from participation.

Questions:

1) The plan is in the process of being restated since it is switching investment carriers (standardized prototype of the investment carrier is being used). The former plan document did not exclude non-resident aliens. Is it OK to exclude them in the new document, or is that considered an illegal cut-back of benefits?

2) The standardized prototypes I have seen allow for eligibility exclusions of non-resident aliens and employees subject to collective bargaining. If it is the intent of the employer to exclude Company Z employees from participation, can this be done in a prototype environment? Assume the plan passes 410(B) by excluding Company Z employees.

3) The former plan document did not state an exclusion of employees in Company's Y or Z. Since we have a controlled group, employees of Y and Z were eligible to participate assuming they met age and service. However, the employer did not make the plan known or available to employees of Company's Y and Z. Does this mean that a QNEC to those employees is required, = to ADP of NCHE's for the years in question?

4) If I'm right about 3), which of the IRS correction programs does this issue fall under, or is self-correction an option?

Thank you for any help, I greatly appreciate it!

Can an individually drafted 401(a) plan be updated for GUST by plan amendment rather than a complete plan restatement?

We are a small industrial distributorship in Hazelwood, MO (St. Louis, MO) approximately 65 ees. We plan to initiate a new "Paid Time Off" program giving ees "x" number of days (based on tenure) to be used however they wish (i.e, sick, personal, vacation, holidays,etc.).

Has anyone recently started this type of programs in this type environment? How has it worked -- how did you start?

Under the circumstances you describe, the employer would have to wait at least a year before starting up a new defined contribution plan. When terminating a 401(k) plan and paying out the balances, there are strict requirements regarding a "successor" plan. See IRC sec. 401(k)(10) and related regs.

Other than as provided in the SPD, is their a notification requirement with respect to Diversification Election opportunities? Is the Plan obligated to notify Qualified Participants and, if so, with what frequency?

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Three years ago I was told by a company that I was no longer needed afer nearly 26 years of hard work. One of the things I found out (after investigating my retirement benefits) is that my retirement benefit is reduced a certain percentage for every year between now and retirement age. So needless to say after 26 years of building up a benefits it is now reducded to less than 40% of what I anticipated.Since I was 47 at the time of separation the 18 years to retirement reduced my benefit.I am really trying to find out if this is legal or not? Do I have any recourse in the situation? Any suggestions from anyone who has been in this type of situation? Help please.

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An employee is eligible to make deferrals but doesn't and therefore does not receive an employer match. Does this employee receive forfeitures of matching money resulting from an employee terminating?

Forfeitures of matching contributions are "allocated to all Participant's eligible to share in the allocations in proportion to each such Participant's Compensation for the year". I can't decide whether the employee WOULD receive the money because he was eligible to participate in the plan and chose not to, or if he WOULDN'T receive it because he wasn't deferring any money. Any thoughts? Thanks.

Company has 2 health "plans," (A & b) where A generally provides better benefits (i.e., lower premiums, better coverage). Company's policy provides that an employee/dependent electing to enroll in company's health plan under the "Special Enrollment" HIPAA provision can only elect to enroll in B and later in open enrollment can choose A. Any thoughts on what is required by HIPAA, i.e., is each plan (A, b) a separate group health plan where Sec. 9801(f) applies separately to both or can the company satisfy this provision with its current policy?

Any good websites on keeping up with the regs for SPDs and other communications???

Are there any recommended web sites that can help us follow the regs on SPDs?

My client's 403(B) program has been audited by the IRS. In order to both prevent a number of individuals from contributing excess in the audit year, and for administrative ease, our client would like to limit the amount that may be deferred to the plan to the amount described in Catch Up C. Basically, this is substituting 415 limit for exclusion allowance for all future years. Of course, no other special catch up elections would be available for certain long-time employees, who would be penalized. Yet requiring that a catch up be used (probally on the annual deferral form) would make life easier on client and satisfy IRS with regard to those who failed exclusion allowance in audit year.One gray area is whether client can require, as a condition of participation in its 403(B) plan, that employees to use a catch up election, because the election is normally used to justify an individuals tax return. Any thoughts? The IRS informally has said that this is probally ok, as long as it does not appear that the IRS is requiring that catch up elections be made.

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My client's 403(B) program has been audited by the IRS. In order to both prevent a number of individuals from contributing excess in the audit year, and for administrative ease, our client would like to limit the amount that may be deferred to the plan to the amount described in Catch Up C. Basically, this is substituting 415 limit for exclusion allowance for all future years. Of course, no other special catch up elections would be available for certain long-time employees, who would be penalized. Yet requiring that a catch up be used (probally on the annual deferral form) would make life easier on client and satisfy IRS with regard to those who failed exclusion allowance in audit year.One gray area is whether client can require, as a condition of participation in its 403(B) plan, that employees to use a catch up election, because the election is normally used to justify an individuals tax return. Any thoughts? The IRS informally has said that this is probally ok, as long as it does not appear that the IRS is requiring that catch up elections be made.

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Trying to understand the regs related to returns on a "predetermined actual investment." It appears one could use the S&P 500 as the PAI and could adopt it for 5 prospective years. If so, is there any "averaging" or carryback or forward of years in which returns were less than S&P?? If in Yr 1, S&P returned +10% and NQDC +5% and in Yr 2 S&P +8% and NQDC +13%, is there any offset between Yrs 1 & 2? Also, if S&P is -10% and NQDC is -6% is there 4% "excess earnings" subject to FICA??

Thanks for your comments.

Can a TPA process a dental benefit claim using their own internal policies on limitations and exclusions even if these are not spelled out in the employee's summary plan description?

We are implementing flexible spending accounts August 1. We have several hundred people on leave of absence (including FMLA). Does anyone out there have any info on how to handle FSAs while on leave? Our vendor said an employee cannot do dependent care while out on leave since purpose is to pay for dependent care so you can work. So do you stop their deductions? Then when they return resume? What about a healthcare FSA? Do you allow employee to keep paying while out (and thus lose the pre-tax benefit) or cancel until they return? Do you let them access the funds while they are on leave? For example, if I go out to have a baby, and I've set aside money to pay for that, it seems I could use my healthcare FSA to pay for expenses.

I recently took over doing the QMCSO (qualified medical child support orders) for our company. I have a checklist that determines whether or not the order is "qualified." It has been my understanding that if my employee is not enrolled in our medical plan, and I received a QMCSO to enroll a dependent, I am not required to provide health coverage since my employee is not enrolled - the employee would be responsible for providing coverage him or herself. But I have heard recently that this could be considered a qualifying event and that the employee must enroll? It seems that a QMCSO is ordering the employee to add a dependent if the employee is already enrolled, but can it force me to enroll my employee?

We are a 501©(3) with a 403(B)/SEP-IRA combination. We are looking into a 401(k) or GROUP 403(B) for our 110 employees but are having a hard time finding something in writing or on the web about the group 403(B) product, sample plans, etc. Any resources that you know of?

Thanks