It was discovered when I brought a copy of my Marital Settlement Agreement and my QDRO for my 401k plan to my financial advisor that my premarital portion was subtracted from the balance on the date the divorce was entered and the remaining balance was split 50 - 50.

How ever, the marital settlement agreement states that my premarital portion was to be identified and that it would then be treated as if it made 5% interest annually for the 20 years that I was married. This new amount would then be subtracted from my 401k balance (a much larger amount) and the remaining balance split 50 - 50.

At the time of signing the QDRO my lawyer advised me that the document looked proper and followed what all parties had agreed to in the divorce. (I always asked before signing anything if there was anything that was changed from a draft or not in my best interest since most of this paperwork is confusing and I am paying him for his expertise in the matter.)

The marital settlement agreement has never been amended.

If the QDRO does not match the marital settlement agreement filed and no amendments have ever been made since that filing, is the QDRO valid?

Can it be amended since certain portions of the marital settlement agreement were omitted from the QDRO?

This omission was missed by both lawyers.

I believe the QDRO was prepared by my xwifes attorney.

I live in Illinois.

My ex-wife has already received her portion of the 401k (including the 5% portion of interest that was awarded to me via the marital settlement agreement)

Thank you

A plan discovered a significant error from plan years ending December 31, 2012, 2013 and 2014. The plan submitted a VCP application and it was approved. Part of the correction is to fix the ADP failures. The plan was not tested correctly and refunds were never processed. Every participant needing a refund has taken their money and rolled it to an IRA. In which year should the 1099 for the excess amount be coded? Is a corrected 1099 sent to the participants for 2012, 2013, 2014 respectively?

Thank you

Can a 401(k) plan allow for Roth rollover contributions but not Roth elective deferrals?  If not, why not?

In our FIS Corbel document under Maximum Annual Additions it provides in part that if an employer contribution that otherwise would cause annual additions to exceed maximum permissible amounts the contribution is reduced and any amount in excess of the maximum permissible amount that would have been allocated "may be allocated to other Participants".

We have an employer with the only three participants who are all owners or related to owners (no other employees, all HCEs).  Two out of three of the participants have maximized their 401(k) for the year.  When we determine the 25% deductible employer contribution based on eligible compensation and we allocate based on plan formula these two participants will hit their 415 limit.  Which then per plan document would be allocated to the other owner who did not defer.

Any problems with allocating additional monies to this third participant once the first two participants have reached their 415 limit?  I have been told that this is aggressive but I cannot find any guidance that says we cannot do this.

Thanks in advance.

Which governmental activities stop (or continue) during a U.S. Government shutdown?

Here’s the Labor department’s plan:

https://www.dol.gov/dol/Contingency_Plan.pdf

And here’s the Internal Revenue Service’s plan:

https://home.treasury.gov/system/files/266/IRS-Lapse-in-Appropriations-Contingency-Plan_Nonfiling-Season_2018-12-03.pdf

Other plans:

https://www.whitehouse.gov/omb/information-for-agencies/agency-contingency-plans/

A safe harbor 401(k) Plan will be terminating 12/31/2018. 2 active participants are over age 70.5 but are not 5% owners and have not separated service.

Are they required to receive a 2019 RMD from the Plan if they are still employed at the time the distribution is made in 2019?

If the are not required to take an RMD and they rollover 100% of their balance due to Plan termination but later  separate service after the rollover but before 12/31/2019, is a retro active RMD triggered for 2019? 

One of our clients had an accidental death.  She has a husband but her business is real estate.  He can receive her post death commissions for a time.   Can a contribution be made for the 2018 plan year for her?  

The employer occasionally uses the services of a temporary agency to find new talent. Occasionally after 90 days the "temp" is offered a permanent position with the employer. Does the employer have to count service while a "temp" for the Plan's eligibility waiting period, vesting credits and accruals? In other words, does the employer have to bridge that service while working "temp" now that they are hired to a permanent position with the employer?

Thank you

Not For Profit (NFP) sponsor of 457b plan permits retired participants to either take a lump sum distribution or equal payments over a 10 year period after retirement.  For those who take the lump sum option, this distribution amount is included in their final issued W-2 as they are still on payroll.   The instructions for W-2 indicate that distributions from a NFP 457b plan are to be reflected on a W-2.   If retired employee is no longer employed by the NFP, is the NFP still to report the annual distributions on a W-2 with required withholding or are there any other options? (1099Misc??)  Thanks

Can an employer have as an excludable class of employees by specific name?  For the 401k plan we are drafting, the employer wants to exclude HCEs (about 15) but not exclude 3 of them.  For excludable class, could they have in their plan document something to the effect that "all HCEs are part of the excludable class, except individual A, B and C"?

Any thoughts?

Thanks

One of my governmental clients has acquired a not-for-profit entity with an ERISA 403(b) plan.  The governmental 403(b) is voluntary only, with employer matching contributions made in a governmental 401(a).  The ERISA plan does allow for matching and discretionary contributions.  Other than universal availability, are there any control group coverage/testing issues to be considered?  

If the 5500 is prepared on the accrual basis of accounting would a participant have an account balance at year end for the purposes of Line 5c on Form 5500-sf if a participant did not have any money in his/her account as of 12/31 but did have a receivable for a contribution deferred prior to 12/31 that was received after year end?

Have a new client - all employees are family members and all are HCE.  Want to adopt a 401(k) plan for 2018.

I know the 3 month rule for safe harbor plans.  But for non safe harbor plans unable to find specific guidance.  Something from my past says that all participants have to have an effective availability to the Plan.  If all HCEs with the ability to bonus out at end of year for 401(k) any issues with adoption in December for a calendar year plan?

An individual-account (defined-contribution) retirement plan doesn’t share longevity and mortality risks.  So that aspect isn’t a reason to organize a plan around a particular employer.

A recent survey suggests about 60% of those employers that maintain a retirement plan would drop it if a government-organized plan were available.

https://www.pionline.com/article/20181210/PRINT/181219911/survey-dc-execs-would-end-their-own-plan-for-a-state-plan?newsletter=defined-contribution-digest&issue=20181210#utm_medium=email&utm_source=newsletters&utm_campaign=pi-defined-contribution-digest-20181210cci_r=145845

Regarding many of the employers, a government-organized plan should have better scale and purchasing power to get services.  And for many participants who would have been in micro or small plans, one’s expense for investment funds should be no worse (and might be better).

Setting aside one’s personal interest in continued business or employment, what are the arguments for and against government-organized plans as an alternative to employer-organized plans?

Not for profit hospital has a 457(f) plan where contributions are made for non-employed physicians as compensation for taking call for the hospital.

There is a 3 year vesting period for contributions.

Once contributions vest they become taxable to the participant, whether distributed or not. Hospital issues the participant a 1099-MISC reporting the vested amount (contribution plus applicable earnings) in Box 6 Medical and health care payments.

I find nothing in the 1099 instructions to support this, whereas 457(f) distributions are specifically addressed in the W-2 Instructions for Box 1, bullet point 15. However, W-2 Box 1 compensations is applicable to employees, whereas the physician participants in the call pay plan are not otherwise employees of the Hospital.

Is the reporting of this income on a 1099 appropriate? Or does the 457(f) arrangement by default qualify the participants as employees, and this should be reported on a W-2 instead? Any guidance on this is appreciated.

Small DB plan is terminating 6 participants, not PBGC, not being submitted to IRS.  Termination date is 12/31/18. The owner wants to take an in-kind distribution. The document does not currently allow for it, but it is an option on the prototype checklist.  

If the plan allowed for it,  does every participant have to be given the option to elect an in-kind distribution?  Could this amendment be done post-termination date? The owner (an attorney) wants to be the only participant allowed to elect an in-kind distribution. I have done a lot of plan terminations but never one that included in-kind distributions. What else do I need to look out for? 

VCP and significant or Un-significant?  Is this a 100% make up contribution?

Sponsor wants to name the CEO and highest HR position as plan trustees, rather than naming names. They say they have incoming officers sign to accept trusteeship and notify departing officers of their removal as trustee. Is this ok?

I wouldn't think these officers would change very often, and they're going through the right steps anyway, so I'm not sure of their motivation to do it this way.

I find myself confused with controlled group determinations that involve trusts. I read everywhere that trusts which have ownership interests in another business attribute the ownership to the beneficiaries. But does the ownership ever attribute back to the grantor? Say if the trust is revocable and thus ultimate control over the ownership still rests with the grantor would the ownership not attribute back to the grantor?

Any guidance would be appreciated. 

I have not seen this before and would appreciate your insight and comment.  A cash balance plan was established in 2015 with the plan year beginning 01/01/2015.  In reviewing the Annual Funding Notice the company has not made a contribution to the Plan in the first two years of its implementation, 2015.  Their Annual Funding Notice is confirming that no contributions have been made in 2015 and 2016.  Their Plan Adoption Agreement clearly outlines the benefit that should have been funded for:

[ X ] Group One:. An amount equal to:

[ X ] $ 190,000 for each Determination Period.

.[ X ] Group Two:  An amount equal to:

[ X ] $ 93,000 for each Determination Period.

[ X ] Group Three: All Other Participants. An amount equal to:

[ X ]2.50 percent of Compensation during the Determination Period.

A contribution has been made for the 2017 plan year and the funded status is over 100% in 2017.   My understanding is, in general the “minimum funding standards” requirement under the Code require sufficient assets in the Plan to meet the current liabilities.  For example in 2015 and 2016 there is a Plan liability to provide the projected retirement benefit however no asset, contribution, has been deposited.  

My only thought is the company is not funding the Plan based on the vesting schedule which is a 3-year cliff.  Therefore for years one and two (2015 and 2016) there is no benefit calculated because there are no benefits paid in the event a participant leaves service, no vesting.  In year three 2017 they become 100% vested and are due the accrued benefit from the time they became eligible.

I believe this approach is not correct.  The “minimum funding standards” ensure that sufficient money will be available to pay promised retirement benefits to employee when they retire, no mention of when the vest.  I have not seen this interpretation before and cannot locate a cite to justify its conclusion. 

Can this be possible?  Do you agree with funding based on the vesting schedule or funding based on the retirement benefit once eligible?  Your thoughts and comments, as always are appreciated.