The office manager in a plan I administer (profit sharing/3% safe harbor) wants to be become an independent contractor paid via a 1099 instead of a W2 employee.  Nothing in her job would change, just the way she is paid.  I know this would make her no longer an employee, and she would no longer be able to participate in the plan, but not sure how to advise her on the myriad of other things it could affect. She is also the HR person, so I can't refer her to the HR dept. 

We use ftwilliam.com to produce our 5500's and Summary Annual Reports. In the General Information section of the SAR checklist, question 5 asks "Have all participants earned the right to receive benefits?" If you answer yes, it removes the "although not all of these persons had yet earned the right to receive benefits" language.

We're not sure how to answer this from a defined contribution plan perspective. Is this tied to whether or not everyone is fully vested, whether or not everyone is entitled to take a distribution from the plan, whether or not all of the participants listed in the count earlier in the sentence have a balance, or some combination thereof? If it's tied to whether or not everyone is entitled to actually take a distribution, it seems like there would be very limited circumstances when you would not include the language.

It's interesting that ftwilliam.com gives the option to include or exclude this language when the model notice in the DOL reg (§2520.104b-10) hard codes the language (i.e., doesn't provide for alternative language or qualify when you would or wouldn't use it like it does for other parts of the notice).

I'm inclined to just follow the model notice and include the language in all cases, but I'm curious as to what criteria others are using to determine how to answer this question?

Suppose plan A merges into plan Z. Plan A files a Final 5500 and shows the transfer amounts to plan Z. Also suppose Plan A uses a pre-approved document. Can Plan A file a Form 5310 to get a determination for its final year?

I had a client send me the following message:   I am just wondering what the general rule is/consensus on how they have to get the information to participants. 

"Has there been any changes to 401K regulations that would allow us to upload our 401K documents (attached) to our eSELFSERVE site for access instead of providing hard copies?

• Summary Plan Descriptions
• QDIA Notice
• Enrollment Form

eSELFSERVE is accessible on mobile phones.

We use for all our benefits (medical, etc).

In the past we were told that unless the associate had a work email, we should print (27 pages +).  Please advise"

Any help or cites would be great!  Thanks!

Suppose you have a safe harbor 401(k) plan (safe harbor match). In addition, the same employer has a cross-tested profit sharing plan. Both plans cover the same employees although the 401(k) plan has an earlier entry date.

My understanding is that the Safe Harbor 401(k) plan can stand on its own and the profit sharing plan can stand on its own as long as it (the profit sharing plan) passes 410b and 401(a)4 on its own. In other words, aggregation is not required for the average benefits percentage test in this case.

Or, is it required that both plans be aggregated for the average benefits percentage test?

Thank you. 

I have a pre approved plan, ABC Profit Sharing Plan , Employer ABC Corp. PYE 12/31/18

Effective 1/1/19  Articles of Incorporation with a Statement of Conversion changed the name to XYZ, Inc.

The EIN is the same.

I don't know what  should to do about the plan. What changes do I make? Does ABC end and xys adopt the plan?

This is a California company. PLEASE HELP

Brain cramp! Participant terminates with outstanding loan - rolls loan note over to new employer's plan. Reported on 1099 as code G, or not reported at all?

A potential client is leaving an MEP (Multiple Employer Plan) and wants to start a new stand-alone plan mid-year with the intent on moving the assets over to the new plan. The plan is NOT safe harbor. 

Since this will be a successor plan, does the new plan require a short initial plan year or is there a way to avoid the short plan year?  

Has anyone had any experience with the iRS regarding recoveries of withholding overpayments made by a pension plan or is aware of any guidance? For example, assume that a pension plan continues to pay benefits to a deceased retiree's bank account and the joint holder of the account retains the funds or the funds are returned to the plan by the bank.  An IRS letter dated May 15, 2003 from the Office of Chief Counsel entitled "IRS Letter on Recovery of Erroneous Withholding" states that the plan can file Forms 843 and 941c (apparently Form 941c was replaced by Form 941-X).  The guidance contained in this May 15, 2003 letter appears out of date. And it would appear that IRS Form 945x is more appropriate.

IRS Letter May 15, 2003 re withholding recovery.pdf

Client's attorney is proactively (no problems or lawsuits anticipated, just want to have an objective look) hiring actuarial firm to do actuarial equivalence study respecting client's frozen defined benefit pension plan. Client has hired a particular actuarial firm for consulting on lump sum window, and other matters through the years. The actuarial firm does not consider itself to be a fiduciary respecting the plan, but in terms of best practices, does anyone have thoughts on whether or not another actuarial firm that has never worked before with the client's plan should be selected to do the study or if it doesn't matter?

This is a new one to me. Has anyone ever dealt with this? A participant died and left a 60-month preretirement death benefit payable. No beneficiary designation, no spouse, no children. The plan contacted his mother, who would be the default beneficiary under the plan terms. She said she wants nothing to do with it. Apparently the participant has a sister as well, but the mother said the sister wouldn't want it either (she would be next default beneficiary after the mother). 

What would you do if the default beneficiary refuses to apply for the benefit? I'm also assuming that we wouldn't be able to get her to fill out and submit a formal disclaimer of interest. 

Plan Admin/Trustee did not want to offer Roth.  Roth was added during the 2016 restatement in error (?) and was not found out until now.

So an employee selected roth on the enrollment form but the administrator went back to them and said we do not offer roth and then the employee placed the same percentage in pre-tax but never crossed out the roth.  So everything moved forward and the employee did not miss $1 of the safe harbor match.

The plan has as internal audit and this employee was selected.

What is my legal correction?

Everything I am reading relates to missed deferrals, missed entry, missed eligibility..... and how to fix..... making up the difference....

Basically I want to do a retro amendment... just not sure... any ideas....

Just took over a hard frozen one man plan, defined benefit plan, who received the 204(h) and amendment.  Does the plan automatically pass minimum coverage?? There will not be any new employees ever entering.

Have a Safe Harbor 401k plan that allocates a Safe Harbor enhanced match formula (100% up to 4% deferred).  They also allocate a non-elective profit sharing contribution based on integration/permitted disparity and the plan falls into the Top Heavy threshold.  The plan has a 1000 hours of service and last day requirement for receiving an allocation of the additional profit sharing contribution.  EX-Have a participant who is NOT eligible for the allocation of the profit sharing due to the service, but is receiving the Safe Harbor Match because they deferred.  Would this participant also have to receive a Top Heavy minimum allocation or would their Safe Harbor Match satisfy that requirement?

I am working with a church that is in the midst of an EPCRS correction. One of the areas they are working to correct is failure to offer participation in the plan to all eligible employees. Per the written plan document, part-time employees must be offered participation. They are looking at needing to provide a 1.5% corrective contribution on behalf of these PT employees. The question the church has proposed is, "what if an employee refuses the corrective contribution?".

Because they were never offered an opportunity, these part time employees are not enrolled. If refusal is not an option, and an employee is unwilling to complete an enrollment form, can the church just provide the plan with the basic enrollment information (name, ssn, dob, etc.) so the plan could open an account for the individual to accept the contribution on the employee's behalf?

If refusal is an option, could the church simply receive a signed statement from the employee in order to justify not making a "full correction"?

TIA for your responses.

An employer's personnel manual (dated 1998) states all employees are eligible to participate in the 403(b) plan.

The same employer's plan document (2009) provides a default eligibility for employees working at least 20 hours per week.

For employees working for the employer 2009 and beyond, which document governs participation eligibility?

TIA for your responses.

We have a SHNE 401(k) with voluntary contributions, all testing done.

Affected participants of course owners, removed the excess and claimed the earnings as taxable.

In calculating the excess, SHNE for these HCEs was not contributed.  Plan doc allows SHNE for owners, but I believe the thinking was, since the SH contribution has not been made yet, why treat as excess.

Is it permissible for the owners to "waive" the SHNE for 2018, or do they have to contribute, then remove it from the plan?

See new Revenue Ruling 2019-19 - attached.  

And see comment from Blankrome also attached.  

rr-19-19.pdf RR 2019-19 Uncashed Distributions.pdf

I believe this has been addressed before - if so, please feel free to link to the other discussions / posts and I'll read through them. 

Small employer has a a fairly vanilla 401(k) plan with deferrals, safe harbor, and profit sharing. They would like to reduce the contribution to the NHCE by adding an excluded class. The one HCE would also be excluded from everything except deferrals. A number of the eligible NHCE would be excluded from the plan. Assuming coverage testing passes, this feels like a cut-back, or a violation of BRF, but I know the ability to defer is not protected, nor is right to receive an employer contribution. 

Usually if initially setting up a plan we are proactive in class exclusions as part of the design process, so I don't see requests for exclusions after the fact and just feel like I am missing something. 

What say all of you smart people? Is there something I'm missing that would prohibit or make this type of amendment problematic?