A Plan currently permits loans for hardship necessity only (safe harbor standards). If they are going to permit loans under the CARES Act, will they have to amend their loan program to permit loans for any reason (possibly for the CARES Act duration)?

I am aware of the conversation surrounding the issue of mid-year changes to DCFSA elections with changing costs of care related to COVID-19 stay-at-home orders. However, is anyone aware of any thinking about employees in the following situation: employee pre-paid childcare costs at beginning of school year, as many care providers require, making a DCFSA election to cover the costs. In the typical case, employee would be eligible for reimbursements as expenses are incurred, that is, when services are rendered as the children go to the care provider. Now, the care provider is closed and the children are at home. No services are being rendered. However, some care providers are not giving refunds, so the childcare costs remain for the employee even though the children are not going to the care provider. Is there any sort of relief for this situation, or is the answer that the employee is stuck with a cost which is now ineligible for DCFSA reimbursements because care is never actually provided? Thanks for any insight!

I am trying to track down a copy of the Basic Plan Document for the Corporate Benefit Administrators Inc. PPA Non-standardized 401(k) Plan that goes with an opinion letter issued on 3/31/2014 with Letter Serial No:  J396139a.  Corporate Benefits Administrators Inc. is located in St. Cloud, MN.  I keep a repository of basic plan documents for this purpose, but we came up empty looking for this one.  Is there anyone out there that might have access to this Basic Plan Document and would be willing to share it?

An IRS interpretation states:  “If the Eligible Employer lays off or furloughs its employees and continues the employees’ health care coverage, but does not pay the employees any wages for the time they are not working, the employer may not treat any portion of the health plan expenses as qualified wages for purposes of the Employee Retention Credit because no portion of the health plan expenses would be allocable to wages paid to the employees.”  That website display includes: “This FAQ is not included in the Internal Revenue Bulletin, and therefore may not be relied upon as legal authority.  This means that the information cannot be used to support a legal argument in a court case.”

https://www.irs.gov/newsroom/covid-19-related-employee-retention-credits-amount-of-allocable-qualified-health-plan-expenses-faqs

A letter from three members of Congress asks the IRS to interpret differently CARES Act § 2301.

https://www.finance.senate.gov/imo/media/doc/050420%20Letter%20to%20Treasury%20on%20ERTC%20health%20benefits.pdf

I attach the statute’s § 2301.  And the Joint Committee on Taxation explanation.

Imagine your client wants to file its tax return with the position the Congressmen suggest, that the credit applies for health plan expenses even if no other wages is paid.

Your client tells you it wants your written opinion to help protect against penalties.  Your client doesn’t ask for a more-likely-than-not opinion; a substantial-authority opinion would meet the purpose.  26 C.F.R. § 1.6662‐4(d)(3) https://www.ecfr.gov/cgi-bin/text-idx?SID=2498c4ede6da62c6daa26b3f833d07b7&mc=true&node=se26.15.1_16662_64&rgn=div8

Could you, acting within your profession’s conduct rules, render the requested opinion?

Would you?

My queries are not about anything for my law practice.  Rather, I’m tooling-up to teach my summer-semester course on Professional Conduct in Tax Practice.  (My students include people in law, accounting, and actuarial firms, and some who render tax advice for other businesses.)  The New York Times reported on the letter mentioned above, and I hope the story—and your ideas—might illustrate some points about how practitioners manage uncertainty in tax law.  I'll be grateful for any ideas you're willing to share.

If a plan suspends their QACA Safe Harbor contribution mid-year, do they also suspend auto enrollment?

Participant is furloughed due to the coronavirus.  Not terminated, but no pay.  Participant requests suspension of loan payments.

Two weeks later the plan sponsor receives PPP loan proceeds and the participant is back to working, for argument sake let's say at full hours and pay for at least the eight weeks of the loan.

Must the participant begin payments again, or can the suspension continue?

Thanks very much.

Quote

 

Q11. May an administrator rely on an individual's certification that the individual is eligible to receive a coronavirus-related distribution?   

A11. The administrator of an eligible retirement plan may rely on an individual's certification that the individual satisfies the conditions to be a qualified individual in determining whether a distribution is a coronavirus-related distribution, unless the administrator has actual knowledge to the contrary. Although an administrator may rely on an individual's certification in making and reporting a distribution, the individual is entitled to treat the distribution as a coronavirus-related distribution for purposes of the individual's federal income tax return only if the individual actually meets the eligibility requirements.

 

From the IRS Q&A released today.

I actually think the standard has now been shifted to the plan administrator “must know for sure they qualify.”  The person either has a personal financial hardship that the Employer would 100% have first-hand knowledge of, or they or their spouse had COVID which an employer presumably would need to know for purposes of notifying co-workers about the need to quarantine, etc.  The Employer would presumably at least be obligated to ask WHEN they had COVID for that reason (was it long enough ago that others are at risk? Are you back to work and you should be at home?). 

Does anyone agree with me?

Under the current circumstances, is it acceptable to file a scanned EA-S with e-signature (if we can get signature on the form), rather than original?  Thanks.

Hi

Looking at a takeover PS plan. The formula is cross-tested and has 3 groupings (no everyone in their own group option), each identified for a specific job category. Sponsor adopts a resolution each year on how to allocate the contribution.

Sponsor hired a 4th category employee, became eligible for 2019 but does not fit in any of the categories. It is not an excluded class job category.

How to allocate for this new job category, may be 11-g?? 

Thank you

Hi,

A DB Plan has been owner only (owner and wife) for approx. past ten years, but kept filing PBGC until now (showing only 2 participants each year). This year did not file and when contacted by PBGC it was explained to the agent that the plan is owner only since 2008 and a copy of the 5500 EZ was given to the PBGC (showing that it's an owner only plan). The agent agreed that the plan.is not covered anymore and emailed a convoluted form to fill out so that the plan can be removed from PBGC records. 1. The form has a box to check to confirm that a copy of plan document  is being included with the form...why do they want/need a copy of the plan document for this purpose?..2. They ask that if the spouse of the owner is a plan participant, was she an employee, director, or manager? Why is this relevant, doesn't attribution say that the spouse is an owner as well? This is an INC.

There is an attribution exception of non involvement. This means that the spouse has no involvement in the other spouse's business. However, in this case, since the wife is on the plan that means she is involved in her husband's business, as you can only be a plan participant if you are an employee of the sponsor. 3. So attribution should say that the wife is an owner? Thank you for any insight or ideas in regard to the best way to proceed with this. 

I have a new client referred to me by a CPA.  Two TPAs ago, they were filing a Defined Benefit (DB) Pension Plan (Plan #001) and a 401(k) Plan (Plan #001 (should have been #002 based on effective dates)) for the same Employer/Plan Sponsor.  The DB plan terminated and was distributed in 2016.  A final 2016 filing was never completed.  Filings for 2014 & 2015 were never filed for the 401K Plan.  I'm thinking that we probably need to amend the filings for the 401k Plan as #002 (and plan document) to get the system cleaned up along with the 3 delinquent filings for the two plans?  Would y'all agree?  Thanks.

I'm sure someone will know this of the top of their head - my EOB is on site in the office, and I am most definitely not.

Sponsor deposits 100,000 early for 2020 to a "pre-allocation account" with a well known recordkeeper.  That 100,000 then grows to 105,000 by the time it ends up being allocated the following January. 

For 415 purposes, is an individual limited to 57,000 as of the date it's allocated?  Or can he get 57,000 plus 5% for his share of the earnings?  Or 57,000 plus only the earnings after December 31, the plan's actual allocation date for contributions?

And the similar question if the 100,000 drops to 95,000 by the time it's allocated....("Hey, favored employee, we'll max you out!  Oops, we invested some of that for you early and lost you a chunk of it.")

Thanks --bri

A 401(k) Safe Harbor Plan was terminated effective March 15, 2019.

In December 2019 the owner deposited $19,000 as salary deferrals into the plan.  She earns W-2 income, and those deferrals were reported on her 2019 W-2.

Because of the short plan year, and because the plan was not terminated as the result of economic loss or an acquisition, the plan lost its Safe Harbor status for the short plan year.  Further, the owner was the only employee who contributed salary deferrals to the Plan in 2019.

The owner would like to make a Profit Sharing contribution to the extent possible.

415 limit for 2019 is pro-rated to $11,666.67.

This whole series of events is scrambling my brain.

1.  Can we deposit $11,666.67 as Profit Sharing and treat the $19,000 in deferrals as an Excess Annual Addition?  In other words, moving her out of ADP test failure/Form 5330 territory into 415 violation territory, OR

2.  By virtue of having made the salary deferral contributions, is she no longer able to even consider a Profit Sharing contribution for 2019 because a 415 violation already exists?

3.  And if we go with 2., do we split her $19,000 refund into two pieces:  1) ADP test failure refund of $11,666.67 and prepare Form 5330, and 2) treat $7,333.33 as a 415 excess to be refunded?

Although I know there are other sticky issues going on here, my primary concerns for the moment are the questions I've posted above.

Thank you!

Two semi-related questions and I'm hoping someone out here can help.

Question #1 - a large plan fails ADP testing every year and dozens of HCEs take refunds.  In 2019 there was a matching contribution made every pay period.  Some of the match attributable to the refunded deferrals had to be forfeited.  My question - is the amount of match that was forfeited still a deductible contribution and do we count it towards the 25% deduction limit?

Question #2 - assume an employer calculates and deposits a match equal to 10% up to 100% of deferrals every pay period throughout 2019.  A mistake is made by payroll and too much match was deposited for one participant in 2019 - instead of receiving $1,000 match on $10,000 of deferrals she received $1,500 match.  The error is caught after the end of the year - January of 2020.  The excess $500 that was deposited is transferred-out of the participant's account and into the plan's forfeiture account which was then used to pay administrative fees.  Is this excess match tax-deductible for the employer in either 2019 or 2020? 

So, a Safe Harbor 401(k) plan amended out of Safe Harbor (match) a couple of weeks ago. Now they got a PPP loan and want to amend back in, for the next 8 weeks, then will probably want to amend out again.

I say no, but this stuff has been changing so fast that I wanted to make sure I haven't missed anything. 

I have a plan that fails 2019 APD testing and it is now after March 15.  Is it correct that the deadline for issuing refunds without an excise tax was pushed back?

There are 4 HCE’s all over age 50 and two NHCE’s.  The

The HCE’s deferred respectively

5000

5000

11000

12500

So none had 402(g) catch-up in 2019.

Is it permissible to do both a small QNEC for the two NHCE’s and still have the plan fail ADP testing – then do the corrective refunds but to the point where I can utilize ADP catch-up contributions to avoid having to issue refunds altogether. This is on an ASC volume submitter plan document and I don't see where it allows or does not allow a combination of corrective options.  

For 401a4 testing, we can do some exciting disaggregation of the participants to get groups with the most beneficial characteristics for testing purposes.  How much of that is applicable to ADP testing?  There's the standard excludable employee segregation that can be done, but I don't recall if we can go any further than that.  I've found some slide decks on testing from seminars I've gone to (and online) but none have mentioned it so far, which is leading me to think that it's not a thing... or do I just need to keep digging?  Anyone have a direction to point me in?  Thanks.

After reviewing the KETRA safe harbor guidance in IRS Notice 2005-92, it seems that, as a practical matter, the "one year" delay permitted under the CARES Act winds up as a practical matter to be more like 9 months.   But for the difference in the period of time for which payments can be suspended (August 25, 2005 to December 31, 2006 in the case of KETRA vs. March 27, 2020 to December 31, 2020 in the case of CARES), the loan repayment relief is formulated in exactly the same way – both call for the due dates of any payments occurring during the specified period to be delayed “for one year.”  In the example in 2005-29, the participant ultimately ceases making any payments for more than one year, but that seems to be a function of the fact that the employer in the example acted to take advantage of loan repayment suspension for 13 of the 16-ish months such relief was available under KETRA, rather than the fact the suspension is described in KETRA as being delayed “for one year.”  (The implication is that if the employer in the example had waited until sometime in 2006 to act, the participant would have had his or her payments suspended for less than 12 months.)  In the text of the 2005-92, the Service indicates that as part of the safe harbor approach “loan repayments must resume upon the end of the suspension period….”  Consistent with that, in the example, loan payments resume on January 1, 2007.   Consequently, I'm thinking in the case of a CARES Act loan extension, loan repayments would resume in January of 2021.  Meaning participants, at most, would have gotten a 9-month break on repayments.  Does that seem right or am I missing something?

I wanted to confirm that I researched this correctly.  in 401k plans, self-employed individuals can make employee contributions up to the due date of their personal tax return, including extensions, which could mean a 2019 calendar year 401k contribution can be deposited as late as 10/15/20.

But if the same employee/employer has a SIMPLE IRA, the employee contribution deadline is 30 days after PYE?  From the IRS website is below.  So my conclusion is that different timing deadlines apply whether a SIMPLE or not?

Also, does the coronavirus relief change anything for SIMPLE IRA employee contributions?

Thank you

When must I deposit the salary reduction contributions?

You must deposit employees’ salary reduction contributions to their SIMPLE IRAs within 30 days after the end of the month in which the amounts would otherwise have been payable to the employees in cash, according to IRS rules (IRC section 408(p)(5)(A)(i)). For self-employed persons with no common-law employees, the latest date for depositing salary reduction contributions for a calendar year is 30 days after the end of the year, or January 30th.

The Department of Labor rule for deposit of the salary reduction contributions may be stricter. They do have a 7 business day safe harbor rule.

I have a small non-profit client, they have a DB plan, and they are now out of business, done. The lockdown has ended all their activities that generate revenue.  They won't be able to operate in an extended "social distancing" environment either.  The DB plan has been frozen for several years with just 3 participants, they were about one year away from being fully funded to the plan termination liability, but with the market drop and the lockdown, there will be no more contributions and the plan is underfunded.  They will need to file a distress termination.  All benefits are well under the guaranteed benefit amount. 

Any recent experiences with distress terminations?  The last one I'm familiar with in the early 2000s did not ever get resolved, PBGC did not do anything, the plan eventually ran out of money paying fees and no participants ever received any plan benefits.   I'd like to be able to tell the board members (who are all volunteers) what to expect.