can 1099 employees treated as employees of a company and contribute salary deferral into the 401(k) Plan if the plan eligibility provisions looks like as shown below?

Plan Description: Prototype Non-standardized Profit Sharing Plan with CODA

I. ELIGIBILITY AND PARTICIPATION REQUIREMENTS
A. Eligible Employees (Plan Section 1.1.25)
Must choose either 1 or 2:

1. [x ] All Employees of an Employer are eligible to participate in the Plan.

2. [ ] All Employees of an Employer are eligible to participate in the Plan, except
Check each appropriate box (a-g) to specify excluded employee groups, if applicable.
a. [ ] Salaried Employees.
b. [ ] Hourly Paid Employees.
c. [ ] Any nondiscriminatory classification of Employees employed in or by one or more specified divisions, plants, locations,
job categories, or other identifiable groups of Employees as determined by the Board of Directors. Please specify:
(Note: Under Treasury Regulations, part-time and seasonal employment is not a nondiscriminatory classification. This
item should not be completed with a definition that by its terms defines an excluded classification as including NonHighly
Compensated Employees with the lowest amount of compensation and/or the shortest periods of service.)
d. [ ] Employees included in a bargaining unit covered by a collective bargaining agreement with the Employer in the
negotiation of which retirement benefits were the subject of good faith bargaining (unless the bargaining agreement
provides for participation in the Plan).
(For a Plan that includes union employees, specify whether less than all union employees are included. For example: If
the Plan is set-up for employees in Union X, but employees in Union Y are excluded, Union Y should be specified.)
e. [ ] Employees covered under any other tax-qualified retirement plan with respect to which the Employer is obligated to
contribute. Please specify:
(Specify the retirement plan, if applicable. For example: XYZ, Inc. Pension Plan.)
f. [ ] Leased Employees.
g. [ ] Employees not required to be taken into account for nondiscrimination testing purposes under Code §410(b)(6)(C) but
only during the Code §410(b)(6)(C) transition period.
(Note: If selected, in the event of a corporate acquisition, employees of the acquired company will be excluded from
participation in the Plan for a period not to exceed two years, as determined by the acquisition date and Plan Year.)
 

Hi.  I'm working on two related companies (that do not rise to the controlled group or affiliated service group level) where the top guy (who is in both companies/plans) took a max $50K loan from each plan - each loan was a valid loan based on amount, etc.

Now there may be a change in ownership that will put these entities into the same controlled group.  There is even talk about merging the plans.  His loan balance will be more than $50,000, but is that OK since the loan(s) were valid when they were taken?

Thanks.

If a doctor (an s-corp) has her husband working for her and he appears each year on the census with under 1,000 hours, can we deem him, as her spouse, to have worked over 1,000 hours.  This is what our actuary is saying we can do.

Is anyone aware of specific cases addressing claims for monetary damages relating to the exclusion of eligible employees in a 401(k) plan - sponsor has already followed EPCRS correction guidance and made QNEC?  Thanks in advance.

I need to find an attorney who has been successful in having a QDRO removed from a pension.

27 year marriage, divorce in Ohio January, 2012, I  paid exhusband 9 years maintenance, plus 50/50 split all other assets.  His attorney requested the QDRO in addition to  above list.

We have two adult daughters, one disabled, waiting for a determination from SSI.

At time of divorce my attorney considered listing daughter as a "Castle Child", an adult child not likely to ever be self supporting.  Didn't persue, daughter's health continued downhill, medical bills $300,000+ ++ out of pocket. QDRO needs to be dropped due to this life changing inequity as I completely care for our daughter physically and financially.  The QDRO is inequitable based on these facts.

Suggestions? Facts? Direction?

Thanks,

R 

I will update my post as I learn and make progress.

Participant A participates in DC plan Z.  Participant A dies. During year end valuation work we learn that her assets in the plan are just transferred to her beneficiary (her spouse) and kept in the plan. But the beneficiary is not an employee of the company sponsoring Plan Z.  We don't believe the Alliance handed the distribution correctly. The funds should have been distributed. Do you agee?  

Hello.  We have a client - 2 person (solo-k husband and wife) with a DC plan . Each deferred 18,000 and at the same time client contributed $5,000 match to their accounts. Well, we come to find that their gross compensation for 2016 was 19,500 each. 

So we have 2 limit issues.  Each has excess annual additions but the client also exceeded their maximum allowable deduction of 25% of eligible compensation by $250. Which problem is taken care of first?  Do we forfeit $125 of match from each participant's match account and then determine the excess annual additions?  Or the other way around?

 We are so somewhat lucky as wife is over 50 so we can reclassify her excess as 'catch-up ', but not so for the husband.  

My sense is you fix the deduction limit first, but I thought that once the employer funds are assets of the plan they cannot be removed.

Please advise. 

A participant's wife has passed away and he would like to rollover the 401k balance from his wife's company to his 401k account at his company.

Can 401k plans accept spousal death benefit rollovers or must he rollover the balance to an IRA?

Thanks!

1.401(a)(4)-5 provides that benefits otherwise payable to restricted employees (generally the 25 HCEs with the highest compensation)under a defined benefit plan are limited if the plan is not at least 110% funded after the distribution.  If the value of the benefit is less than 1% of the plan's current liabilities, the restrictions do not apply.

Is the 1% exemption only applicable at benefit commencement date or (like the "110% Test") is the 1% exemption applied at every payment date and the full amount can be paid once the value falls below 1%.

For Tom Poje in Jacksonville, and anyone else, and their families and friends who may end up in the path or suffer the after-effects, my heartfelt best wishes for you all to come through this unscathed, or relatively so. We'll be thinking about you!

A terminated participant was provided a distribution check for $150 in December 2016.  In  2017, the investment company determined that the check was never cashed and has reversed the transaction and is including the funds in the plan's assets.  A new check was written in June to the participant and he is cashing the check.

For 5500 reporting, at 12/31/16 should the stale check be included in the ending asset balance?  Also, should the 2016 1099R for the participant be amended to reflect $0 distribution and a new 1099R prepared for 2017 showing the payment?

DC Plan NRA = 65

CB Plan NRA = 65+5

When combining the plans for testing, is the testing age 65 (because there is no uniform normal retirement age, in which case you use 65)? Or is it 65+5 (because there are different uniform normal retirement ages provided, in which case you use the latest nra)?

I have always understood the answer to be one thing, but for some reason I'm reading over the code today, reading through discussions, and find myself second-guessing things. It doesn't seem like there should be much controversy on this issue though. Just looking for some reassurance.

Thanks in advance.

An LLC partnership filed it's company taxes by 4/15/2017.  One of the partners extended his personal return until 9/15/2017.  Originally, when we were given the census information for 2016, the owner stated he would have deferral of $18,000 for 2016.  However, we noticed he hasn't yet deposited the contribution.  When questioned, owner first said he wouldn't make the contribution, but has now decided he will reflect deferral of $18,000 on his 2016 personal return, and will deposit it by 9/15/2017.  Obviously, the deferral is considered late, but should it be declared as a late deposit on the 2016 5500?  I am of 2 minds: 1) yes, it should be on the 2016 5500, because it is attributable to the 2016 plan year; 2) no, since the deferral wasn't technically due until 4/15/2017 (date company filed it's return), it won't be on the 2016 5500 as a late contribution, but will be on the 2017 5500 as late.  Anyone have a definitive answer, or have an idea of where I can get clarification?

I handle the administration for a construction fund.  It is my understanding that the IRS has required that a construction fund to use the Presumptive method to calculate withdrawal liability.

This fund has never needed to do a withdrawal liability calculation until now. This method requires 20 years worth of contribution history for the Fund but the Administrator can only give me 11 years worth of information.

Does anyone know if we could instead use the pool method since the information simply isn't available?  Thanks in advance!

The IRS modified tax return deadines for 2016.  What we are questioning is whether the deadline for making a contribution for a calendar year plan is still September 15th, or (as the form 7004 instructions suggest) has the deadline now changed to October 15th. 

Hello.  I a faced with a unique beneficiary designation and my inclination is that it is not appropriate.  The plan document allows for one or more primary beneficiaries to be named and one or more contingent beneficiaries if all of the primaries have predeceased the ppt (or disclaimed).

We received a custom beneficiary designation that names one or more 2nd tier contingent beneficiaries to each of the contingent beneficiaries, meaning that if all of the primaries predecease, then the named contingents do not split the account equally as would normally be the case.  Rather, the participant wants specific 2nd tier contingents to get any predeceased contingents' share.

I can't find any information on this online and I was hoping someone had some prior experience with handling this issue.  Thanks so much.

Interested in thoughts on the following as there seems to be some difference of opinion in the benefits community regarding when plan amendments are required to take advantage of the expanded relief offered under IRS Announcement 2017-11.

If you have a 401(k) Plan that currently permits safe harbor hardship distributions along with the regular 6-month suspension of elective deferrals following a hardship distribution and the plan wants to permit broader hardship distributions per 2017-11 (including distributions for non-safe harbor purposes, for affected relatives of a plan participant, and also to waive the 6-month suspension), is the plan required to adopt conforming amendments or can it instead simply modify its usual procedures for those cases falling within the 2017-11 parameters?  

My general interpretation of 2017-11 is that it only requires plan amendments if a plan does not currently permit loans or hardships and desires to make these per 2017-11.  However, if the plan already permits these, it seems to me a formal amendment is not required provided the plan sponsor complies with 2017-11.  (Seems to me if the IRS's intent was to require conforming amendments in all cases, it would say that in 2017-11 rather than simply noting that amendments are required if the plan does not otherwise permit loans or hardships.)  Others, however, think a plan must be amended to specifically track 2017-11 (e.g., to permit waiver of the 6-month delay requirement if the plan desires to waive that in connection with 2017-11).  Thoughts?

Good morning,

I was wondering what other practitioners are doing regarding the calculation of the excise tax for failing to correct ADP/ACP failure prior to the 2 1/2 month deadline.

The EOB says that the 10% tax is calculated on the excess deferral or excess aggregate contributions prior to the G/L adjustment, but the 5500 Preparer's Manual says that the tax is calculated after the earnings adjustment.

So are your calculating the tax before or after the G/L adjustment?

Thanks in advance! 

We have the son who owns his business and has a new qualified retirement plan.  His mother does his bookkeeping and he wants to include her in plan.  She works on 1099 and they want to have her join plan as a sole proprietor adopting employer by means of a joinder agreement.  She has no EIN for her business, but files under her own SSN.

He is in import/export business, she does bookkeeping.  Is this allowable?