This was my question But the lame IRS answer was "to be discussed from the podium." Does anyone recall what was said? It's question 12 on the 2014 ASPPA Q&A. ASPPA's proposed response was basically an argument agains the IRS's interpretation on the matter.

Plan A is a calendar year 401(k) Plan that provides the basic safe harbor match. The Plan holds

“regular” matching contributions from prior plan years that are subject to a vesting schedule. The

Plan is top-heavy and at least one key employee receives total allocations of more than 3% of 415

Compensation.

For the 2015 plan year, only deferrals and safe harbor matching contributions are to be made.

There are $3,500 forfeitures of regular matching contributions waiting to be used. They cannot be

used to reduce the safe harbor match under IRS policy. If the forfeitures are allocated, the plan

will fail to be exempt form the top heavy rules, and a top-heavy minimum will be required. The

top-heavy minimum (after using the safe harbor match to offset the top-heavy minimum, as is

permitted) is about $90,000. The safe harbor match is only $45,000.

Is the plan forced to reallocate the $3,500, giving rise to an additional contribution obligation of

$90,000?

A physician left a large group in 2014 and set up his own corporation which he owns 100%. He also hired another physician from the same group (as an employee). The entity was incorporated 11/1/14 and operations began in December 2014.

Question - for purposes of the shareholder Dr's date of hire, when did he first perform an hour of service. He said he was working on the organization of the new practice and corporation for at least 6 months. If the DOH is the date an employee first performs an hour of service, can this date be prior to the date the entity was formed? If so this would be in May of 2014.

The Dr would like to establish a DB plan this year, but the employee Dr. is an NHCE this year because she is not a shareholder and her 2014 earnings were below the HCE threshold. But this year her earnings are over $265K, and she is 4 years older than the shareholder, making a DB plan problematic. Next year she'll be an HCE and the problem goes away. For 2015, if the shareholder Dr's DOH is prior to 7/1/14, we can get him in a DB this year and the employee Dr is not yet eligible.

Intuitively I would think that the employer match under a SIMPLE 401k should be treated as a QNEC subject to in-service distribution restrictions but can't find any support, anybody have a cite?

(YOU CAN SAVE YOURSELF SOME TIME BY JUMPING TO POSTS #3 AND #4, WHERE THE GIST OF THE CASE IS DISCUSSED)

Hello there and congrats on your forum.

I have a question relating to section ERISA section 404(b) and the infamous "indicia of ownership" requirement.

Hypothetical US citizen lives abroad and works as a self employed individual.

He wants to start a solo 401(k) in the US, where he will rollover his old Keogh plan assets, and serve as its trustee.

He was told by one, only, of the companies that prepare the plan documents, that this is impossible because it runs afoul of section 404(b) requirements, which state (verbatim): "(a) No fiduciary may maintain the indicia of ownership of any assets of a plan outside the jurisdiction of the district courts of the United States, unless:..."

http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=9c47fc8bb98170084f4b24aa36e4c6b9&n=29y9.1.3.6.6&r=PART&ty=HTML#se29.9.2550_1404b_61

https://www.law.cornell.edu/cfr/text/29/2550.404b-1

I am having an issue with this interpretation which equates the jurisdiction of the US District Courts with their assigned territorial extend for puproses of interior - to the US - administration. Yet the US government has no trouble extending its long (jurisdiction) hand way beyond the US territories when demanding my taxes on foreign income.

I am arguing that a US citizen, and the documents he/she posseses, are always under the jurisdiction of all US courts regardless of his/her place of abode, and therefore the citizen who wants to act as a trustee of his own, indvidual, 401(k) plan should be able to do so, because, in contrast to a foreigner who can arguably refuse to appear at a US court claiming lack of jurisdiction, and for which such cases I suppose the essence of section 404(b) was created, a US citizen is legally obliged to appear - and bring any evidence he asked to bring - before any US court deciding to drag him back to the US on a short notice.

Therefore, I am proposing, a US citizen residing abroad and acting as a trustee of his own 401(k) plan, does not violate the ERISA section 404(b) requirements.

If it can be of any help, from what I understand from DOL Advisory Opinion 2008-04A (https://www.dol.gov/ebsa/regs/aos/ao2008-04a.html) which deals with the issue of "indicia of ownership" but for large plans and foreign investment funds, the argument for the approved exception from 404(b) requirements, even though the "indicia" does not reside physically in the US, goes along similar lines with my argument of citizenship placing the trustee under jurisdiction of US courts. Specifically, the foreign companies, it is argued in the Opinion, who physically hold the "indicia" outside the US territories on behalf of the US investors, are considered to be under the jurisdiction of the US courts because they have signed contracts obliging them to transfer those "indicia" freely to the US if asked to do so by the US based fiduciary with whom they signed such contracts.

But US citizenship is just such a contract placing the individual under direct US courts jurisdiction, and thus he/she should be able to serve as a plan trustee as per 404(b) requirements.

Any opinions on this matter ?

Does anyone know if the DOL has come up with any Advisory Opinions or some other instruction regarding this issue ? Any court cases ?

Any guidance from any power to be ? or from attorney firms ?

From what I suspect, people living abroad are acting as their own solo 401(k) trustees and buying foreign Real Estate while holding on to the foreign deeds at their overseas residence, without worrying whether they violate 404(b) or not.

I am nor sure what the trustees of individual IRAs demand in terms of who holds on to the deeds of foreign Real Estate. The IRA trustees are usually US based and distinct from the owner-trustees of the solo 401(k) plans.

Thanks many to all who will contribute their opinion.

I know that a more than 5% owner and any terminated participants are required to take a distribution once they turn 70.5. We were discussing the options open to those who are 70.5 and still employed (non-owners). I say the option is open to those people to take it if they want to - assuming that the plan allows for in-service withdrawals of course. My coworker disagreed. What are your thoughts?

My divorce from Washington was final in February 1991 while I was stationed in Georgia with the US Army. As part of the decree my exwife was to get half my pension from Prudential, previously vested while we were married, but no QDRO was prepared at that time. The current value of the pension is less than $500/month.

So it's now time to apply for payment of pension benefits and I'm totally lost as to what I do to get the pension papers processed. The folks at Prudential told me I had to go to some site to get information, but everything I see appears for individuals currently going through a divorce and the QDRO is just one more piece of the divorce papers. I live in Utah and my exwife lives in Washington, in the same county the court order for the divorced was issued. I'm a bit lost as to how to move ahead. Does this thing need to be handled in Washington or Utah? Nothing I ready has given me any clue as to how to get this done.

can contributions be made to an eligible 457(b) for an employee that has already attained age 70 1/2?

This is the first year we are filing the form 5500. We went to self-funding last year. There are many different rules that we are trying to decide if we have to file and if so what form. We had 70 participants at the beginning of the year, and benefits are paid as needed from the general assets of the employer, and monthly contributions from employees. We also have purchased a stop loss contract through an insurance carrier. From what I am reading we either do not have to file any forms, or can file the 5500-SF, or 5500 with Schedule A and/or schedule I (small plan). We did receive a schedule A after asking the TPA for the information. I am just not sure what or if we need to file. Any suggestions or help would be appreciated.

the CPI factor was released today, and as expected, based on the formula there will be no change next year in any limit.

the three month total was only 714.915, barely above last year's 714.133.

I see the govt announced no change in social security, I wouldn't think it will take them long before they make it official no change on the plan limits either.

An IRS Chief Counsel Advice memorandum (2014-13005) provides that a cafeteria plan can permit employees who have leftover general purpose FSA amounts to elect to roll up to $500 over into a limited purpose FSA for the next plan year and therefore be able to contribute to an HSA for that plan year.

Can the opposite be done?: An employee participates in an HDHP/HSA and limited purpose FSA in 2015. The employee elects not to participate in the HDHP for 2016 and wants to rollover $500 from the limited purpose FSA into a general purpose FSA for 2016. Can a cafeteria plan so permit?

Thanks.

Subject 409A plan uses multiple of salary to determine benefit. Can we change this multiple in the future, and, if so, how do we comply with 409A in doing so?

is the death benefit taxable to the spouse? does it matter if the employee is still employed? if the employee separates from service and is still alive what happens to the life insurance inside the plan?

I found out today that my client has been filing the 5500 as a multiple employer plan while they are actually a single employer plan (participating employers are in the same control group).

This has been going on for at least the past 3 years.

They can't be the first to have this happen. Does anyone have any experience with this?

I assume they should simply file corrected forms.

Thoughts?

Insurance premiums, lawn maintenance, snow removal, etc. etc. Report as other expenses?

We have a Cash Balance Plan that has a hypothetical allocation group for shareholders and another group for non-shareholders. A non-shareholder became a shareholder in October. So he is described in one group for 9 months of the year and another group for 3 months.

The Plan does not specify at what point in the year the groups are determined.

Has anyone had this come up? How is it handled?

Thanks for any information.

Hi,

Can someone please clarify the 80-120 rule? New takeover client. For 2013, beginning count was 105, ending 112. For 2014, beginning 112, ending 102.

Won;t they need to do a Sched. H for 2015?

A plan (and the plan document) allow for deferrals up to 100% of pay. Of course, the deferral is not really 100%, but 92.35% due to payroll taxes.

However, a client just informed me that a large payroll provider (which will remain nameless) has implemented a new "policy" which will only allow a max deferral of 90%.

First, has anyone run into this issue?

Second, what problems does the plan have as a result of this? Should the plan amend to use a 90% max? Should HR try to "override" each payroll manually to get to 92.35% each payroll period? Probably both of these options are ok. But, I would think that we can't just leave this alone and only defer 90% when the election is for 100%.

Ideas?

Client just unearthed 24 year old salary continuation plan that states employee is entitled to 10 years of monthly payments upon earliest of:

1. death

2. disability (with a 409A acceptable definition)

3. "retirement" after age 65 but before age 70.

Is there any way #3 could be construed as "separation from service" within 409A?

Or is #3 akin to a payment election that must comply with 409A rules?

If so, did employee make an election by giving notice of his retirement?

Any thoughts are appreciated.

Marie

401(k) plan covers sole owner and 1 common law employee, files 5500-SF.

The one employee terminates employment and is paid out this year so we will file an SF for 2015.

In 2016 can we contend the plan is now non-ERISA and not file anything if assets are under $250,000 or file an EZ or one-participant SF?

I guess my question is can a plan float back and forth between ERISA and non-ERISA from year to year or might the government contend "once ERISA, always ERISA"?

We took over a non-electing church plan. The previous administrator had been been filing 5500s. Now the plan is at a point where they would need an audit and they want to discontinue filing. I can't really file a final return with zero assets and participants as that is not accurate. Does anyone know of a procedure to discontinue filing?