Client with about 50 employees in its 401(k) plan wants to change TPAs.  The new TPA (major insurance company) has suggested a third party ERISA 3(38) investment manager (major investment firm) to select and monitor investment options to be made available to participants. Big emphasis on how 3(38) allows fiduciaries to avoid or minimize their fiduciary liability.

Seems like a good idea until I read the service agreement with the 3(38) investment manager (“IM”) which states that:

1. Employer is responsible for determining that the investment lineup chosen by the IM is “appropriate for the plan”. Wait, isn’t that the IM’s job?

2. IM will indemnify the plan (but not the fiduciaries) against losses arising  from its breach of fiduciary duty, willful misconduct or breach of the agreement (but not from its negligence). First, you can’t sue the plan for a fiduciary’s breach of his fiduciary duty. Second, the whole point of 3(38) is to protect the plan fiduciaries, not the plan. Third, the IM should indemnify if the loss is attributable to its negligence.

3. The Employer and the plan indemnify the IM for any losses arising in connection with the services provided by the IM unless attributable its breach of fiduciary duty, willful misconduct or breach of the agreement. So, the Employer and the plan have to indemnify the IM for it losses even if those losses are due to the IM’s negligence.

Bottom line is that the Employer is not receiving the protection from statutory fiduciary liability that the marketing materials promised and, in fact, is assuming contractual liability to the very party that is supposed to assume that fiduciary liability.

Am I missing something?

I am getting old fast and  new to DB plans as I've been looking to find good TPA for solo401K and defined ben plan for single owner/employee. I have been working for just over 30 yrs and finally decided to set up a CB plan and solo 401K already established in Dec. All of my accounting etc. is straightforward with no complicated matters and it's just myself in my owner-only small business (LLC.).

Does anyone know if I really need a TPA to do anything for the solo401K I setup and administration or can I use the general plan/ adoption agreement template that the large brokerage house already has?? Any recommendations on TPA for the CB plan as it seems hundreds of TPAs that are selling services with large fees and mostly geared towards larger businesses. I know DB plans are complex and although mine is straight forward, I'd like to find someone/group that may actually want to help me:)

Thanks for any help in advance.

Plan contains the following provision:

"Solely for purposes of determining the amount of an employee's Pick-Up Contribution, Earnings shall be determined without regard to the limit on Earnings imposed by Code Section 401(a)(l7)."

Is that acceptable? If so, any cite.

A company has a plan that runs from 1/1 to 12/31. It pays employees once a month on the first of the month. An employee is hired in December of 2020 (enters the plan right away as there is no eligibility condition) and has no pay through the end of year (he receives his first paycheck on 1/1/2021). So, the employee cannot possibly defer / receive a match for 2020.

Should this participant be included in the ADP/ACP test for 2020?

Also, should the participant be included in the active participant count for the Form 5500 purposes for 2020?

Thanks!

Small business owner (no employees) would like to set up a Solo K plan - however he wants to add his child (minor) to the payroll and have the child participate in the plan.  I've read that in order to qualify as a Solo K ("Owner-Only")  an employer must have no full-time employees other than themselves, a business partner and a spouse. - What about children?

Question -Would the plan continue to qualify as a Solo K if the child is eligible to participate? 

Thank you

Hi, 

I would greatly appreciate any insights etc., on the below. A DC (Money Purchase) Plan (volume submitter) has a provision in the compensation definition section (shown below) that allows the owners to sign a form that states that their compensation for the year of the effective date of the plan and all future years is $0. Their contribution based on this is $0, and only the employees receive an annual contribution. Are there any issues with this? Thank you.

       Compensation Limitation Election Available to Certain Participants.  Except for determining Top Heavy  

              allocation requirements under Section 3.5 or Code §415 limitations of Article 6, any participant who is a

        Key Employee, an Owner-Employee, a Self-Employed Individual, or a Highly Compensated Employee may  

        elect for any Plan Year, on a form prescribed by the Administrator to limit Compensation for all purposes

        under this Plan. 

Hi, 

I believe participants with outstanding loan can rollover their loans to an IRA account, can anyone provide more detail on this? 

Should the CARES Act Non-Cash Bonus be included or excluded for Total Comp and Testing purpose?

Hi

I have not had an overfunded DB plan PBGC termination in many many years.

The excess is to be reverted to the employer under the provisions plan document, always have been from adoption date which is 2007. There is also a resolution that the excess will be transferred to qualified replacement plan - QRP.

100% of the excess will be transferred to QRP and all participants in the db plan are actively participating in the QRP. Excess is estimated at 300k.

PBGC form 500, line 16a to 17c is where I am having a bit brain freeze to complete.

I would appreciate if someone with this experience can share their knowledge.

Thank you

Just had an interesting question presented to me - real life case.

401(k) plan with several hundred participants had an ADP failure. Small failure - between $1,000 and $1,500 had to be distributed to 1 HCE. This was done timely in March of 2020 - BUT, 3 days after the deadline, the custodian reversed the distribution - due to some BS paperwork question. They never notified anyone of this, and the distribution was never reprocessed.

Fast forward to now, when it was just discovered.  Of course it can be corrected by a QNEC (prohibitively expensive) or the "one to one" correction method. Problem with one-to-one is that the amounts are so small that it amounts to a QNEC of just a few cents for many eligible NHCE's.

Anyone have brilliant creative thoughts? VCP is prohibitively expensive, and any solution under SCP, while possible, carries no guarantees. Many fixes, while "reasonable" by ordinary standards, might not stand up under audit. However, short of an "approved" fix, then some risk must be assumed.

Thanks for any thoughts.

I'm assisting with the 403 B plan termination for the first time, this has a GCA ( Group Custodial Agreement) how different is the termination process? What are the keys factors that I will need to look into it. 

There are participants who have outstanding loans, when a 401K plan terminated the participants will be allowed to roll over the loans into the acquiring company plan how does it work with 403 B GCA( Group Custodial Agreement)? 

• Can funds be liquidated and cashed out? 
• Can the funds be rolled over only to a retirement plan or can it be rolled over to an IRA? 
• For non-responsive participants - Generally when a 401k plan terminates participants are given at least 30 days to make/take distribution of their choice, what is the time period provided for participants with 403 B? can the funds be rolled over to an IRA if they don't respond? 

Any material that I can refer?  

I have a few clients that have a 401 (k) and Safe Harbor Match. The principals defer but the "common-law" do not. So they are participants with zero account balance.  I tried efiling a 5500-SF showing 2 active participants and 1 with an account balance.  FT William rejected the submission and their support group tells me to file an EZ.

I am not comfortable doing that.

Any suggestions and references will be greatly appreciated.

Thanking you in advance.

DPSRICH

In 2019 a participant in a profit sharing plan received the full contribution when they should of received the 3% top heavy minimum due to working less than 1,000 hours.    To correct, can it be taken back out of their account (brokerage account) or if the employer wants them to keep it, can the plan be amended to allow?  Just wondering the best way to fix.   

thank you

Facts: Plan is top-heavy; Has a 3% non-elective safe harbor contribution; Has a stated match of $0.25 for each dollar deferred up to 4% of pay for Non-HCE only – has last day/1000 hour requirement; Has a discretionary profit sharing plan, but has decided NOT to make a profit sharing contribution for 2020.

I know if they make a profit sharing contribution (which they always have in the past) that they would need to satisfy top-heavy minimums, but in 2020 they are not going to make a profit sharing contribution.

My question is if for 2020, do they have to satisfy the top-heavy minimums? I know that adding allocation req's to a match makes nondiscrimination more difficult to pass, but does the fact that the match is for non-HCE only help? 

Any insight you can provide would be much appreciated!

Thanks! 

I know this topic has been address repeatedly, however this time of year I sometimes need a refresher.

For 2020 participant over age 50 contributes $22k in deferrals.  Compensation is $270,318.33.  Match contribution is $10,812.73.  Can this participant receive a profit share allocation of $30,687.27 in order to reach a total allocation amount of $63,500? 

Years ago I used to think the participant was limited in his total allocation amount under 415 because he only contributed $2,500 over the deferral limit of $19,500.  However I was later advised that you can recharacterize the full $6,500 in catchup to compute the 415 limit.  In other words, talking about two different tests and what gets recharaterized in that particular test (415 vs ADP for example).  

Do others agree that my participant can get $30,687.27 in profit share?

Thanks in advance! 

When a Plan switches recordkeepers, are they able to remain on the same plan document, even though it may be a prototype document for the recordkeeper they're leaving? We have a plan that is moving to a recordkeeper that provides no plan document support, so does this mean the only option is for the employer to move to an individually designed document, or can they use the one they're currently on?

A retirement plan, Calendar Year Plan Year with 2/20 Vesting,  defines its "Normal Retirement Age" as the later of age 65 and 5 Years of Plan Participation, and, hired the following Eligible Employee:

Hire 3/1/2020

Birth 4/1/1957 (age 62, 11 mos at hire)

Eligible 6/1/2020

NRA based on the above definition is 1/1/2025 (1st day of plan year of 5th anniversary of participation)

Assuming works 1000+ hours in every year and is actively employed:

Q 1: this employee would not be 100% vested on his 65th birthday (4/1/2022) because he has not yet satisfied the definition of Normal Retirement Age, correct?

Q 2: on 12/31/2024 this employee is 80% vested; on 1/1/2025, this employee's vesting would be accelerated to 100% Vesting upon reaching Normal Retirement Age, correct?

Thank you!

I'm just discovering the "signature" feature in my pdf software (I use Kofax f/k/a Nuance).  I am curious to know if we can tell clients it is ok to sign plan documents using this feature.  From my brief readings what I am finding is that it is actually much more secure than a regular ink signature because the signature itself is able to tied back directly to the signers own credentials (some crazy encryption-like key).

I'm curious to know if anyone has ever researched this or has found an article about its use in legal documents, whether the IRS will accept it, etc.

So, small client has benefits through a large, national PEO.  Things are not going well for the company and it is facing bankruptcy.  Unclear at present if that will be a Chapter 7 or Chapter 11 and whether some employees will remain on staff to wind things down for a short period, etc. but likely to involve terminating most employees in a few days.  Client asked PEO about COBRA in the event of bankruptcy and was told that "PEO is willing to offer COBRA for a company in bankruptcy if the fees are all paid upfront.  Fees would be $500 per employee as a set up fee (presumably for all current employees whether or not they elect COBRA) and then $75 per month per employee.  All amounts to be paid up front with any unused amounts returned if someone doesn't sign up for COBRA (or takes less than 18 months).  Again, all of this appears to be by way of COBRA / administration fees just to get to point of employee being able to pay regular COBRA premiums.

Does this make sense.  I suppose at one level it might be generous if we assume some complete liquidation and this envisions allowing employees to participate in the PEO's multiple employer plan even though client no longer exists and no longer participates in the group health plan.  On the other hand, it seems strange to me for the PEO to be saying it is "willing" to permit COBRA coverage and then to assess some employer administration fees to make that happen.  What if they are trying to reorganize and a handful of employees stay on to help and the company continues the group health plan participation but just for those few employees.  Wouldn't the terminated employees have a legal right to participate in COBRA?

Three partners get together and form a business.  They start meeting and discussing the business in April 2020, they start working on organizing the business, writing a business plan, researching customers and suppliers, etc in June 2020.  In September 2020 they engage an attorney to create an operating agreement and form an LLC, which is registered with the state in November 2020.   In November and December 2020 they interview and hire employees to start working in January.  They "officially" begin operations in January 2021. 

For purposes of plan eligibility, what is the partners' date of hire?   Under DOL regs it is typically the date an employee first performs an hour of service for the employer for which the employee is entitle to payment.   The partners clearly started working on this in April of 2020, they clearly expect to earn a profit, but they didn't have a formal employer entity until November.   

A.  April 2020
B.  June 2020
C.  November 2020
D.  January 2021
E.  Other________________________

Thanks.