austin3515

Employer decides to deposit employer contributions every single pay-period. Document says last day rule / 1,000 hour requirement. Wouldn't it be a cut-back to then forfeit the contribution for those employees who ultimately do not meet the allocation requirements? To me, it seems that the employer clearly decided NOT to impose allocation conditions on the profit sharing contributions, or that should at least be what a reasonable participant's interpretation would be.

I'm saying if the owner makes $400,000 before bonuses, and the only bonuses left are the bonuses for your sales team which make up 20% of their pay, and they make up 25% of your workforce, and they are all NHCE's, then you're not going to pass 414(s) and you're safe harbor is not going to be valid.

You're not allowed to amend any SH provisions mid-year, unless you follow the regs for such changes (which you reference). Also, better make sure 414(s) is not an issue, as failure of that test will kill your SH for any future year (not just this one) Don't forget ADP testing applies in the year of the reduction, even if the new formula is a SH... (4) The plan is amended to provide that the ADP test will be satisfied for the entire plan year using the current year testing method. HEre's a good question though: LEt';s say your only amendment is to reduce the match, but it's still a safe harbor. So you switch from 100% of 4% down to basic match. Do you retain your top-heavy exemption even though the ADP test applies? Technically, the Plan still consists solely of 401k and safe harbor contributions. In fact the title of the section is "Reductions to the safe harbor match" which might imply that it continues to be safe harbor even though the ADP test applies... Very interesting!

My opinion: Jack up the fees so high that they have no choice but to go to a platform... No good can come from these arrangements. They are awful...

My opinion is that simply not mentioning them in the new EGTRRA Document would not be enough to kick them out of the Plan. It would take board resolutions specifically on point to do that. For example the document probably references "and any other Affiliated Employer who has adopted the Plan" in the definition of Employer. I wouldn't back-date anything, but just have them re-adopt today usint eh new EGTRRA format. Our adopting employer paperwork allows you to indicate the date the adoption was originally effective which would just help to memorialize that this is simply a re-affirmation and not a new election.

My question relates to when the employer DOES report it on their own W-2. The rules on this are extensive, regarding whether or not it's reported on the insurer's W-2's / payroll tax returns and when it is reported on the employers forms. My question is when it is reported on the employer's w-2's, etc., how is it handled for plan purposes?

monthly premiums paid for all employees. When ee gets sick, the insurance company pays insurance beefnits for up to 6 months. Amounts are then reported on the employees form W-2. Are these wages included for Plan purposes? Plan uses W-2 definition, but these are not wages paid by the employer. I've always been told that they should NOT be included but I've read all the guiadnace and my head is spinning. Is ther something that clearly states whether or not insruance benefits (i.e insurance premiums are paid, NOT paid on a cost + fee basis) are included in wages for plan purposes? There's a lot onw orkers comp but not this...

I would definitely treat 2009 as the first year of the plan. There's something about a "corpus" where for a trust to really be a trust there needs to be something in it. So you probably could have skipped the 2008 5500. Perhaps someone with more legal expertise could elaborate. I would be curious to know if I'm to something here, or just making stuff up as I go, ha ha ha...

my bad, I read it as less than 500

Perhaps I am missing somethihng here, but based on your quote, my answer would be accurate? Terms with breaks who are not getting a contribuion are excluded from rate group testing. I think this was the OP's question.

The net income is called "ordinary income" on the K-1's.

I agree they show up in Average Benefits, but I believe they do NOT show up in rate group testing, UNLESS of course they are receiving an allocation (such as a 3% SHNEC).

In my opinion, it is a little silly to require the whole 50% security thing. Someone on these boards once said about a regulations appearent lack of common sense, which I think applies in many situations: "Surely there was sense involved in the creation of regulations such as these. It's just that those who drafted the regulations are of such an elite caliber that the sense used was not common." I'm pretty sure it was WDIK, but then again, what do I know... (LOL) It could have been someone else...

If you';re using the $10K de minis rule to get out of the 50%, my understanding is that the Plan needs to obtain security outside the plan to protect it. Really really ugly in my opinion...

Our advice was talk to a lawyer... I'm doing this research as a favor to one of the lawyers. In this situation, it happens to be one of the owners who passed away, and the plan is terminated. The dispute is over a rollover that took place to an IRA (to the spouse's IRA--and the kid is suing).

K2 retire, excellent suggestion. HAd this been in our form, we would have EXACTLY what we need. I'll be adding that to our template...

Yes, the document says that but there is big money at stake so we need something dead on syaing "any prior beneficiary designations are null and void in the event that the participant marries." Yes, the document includes the language required by law regarding QJSA exemptions (that the participant's spouse must be the benficiary), so I have no doubt it is the answer. But still the attorney wants me to provide something that specifically says what I've mentioned. I will forward the case you provided (many thanks) but it doesn't seem to be on target enough

This thing is bubbling up again for me, so I wasn't sure if anyone had anything new to add... I'm looking for a court case or something that says the prior designations are invalidated. Even an ERISA Outline Book site would make me happy!

Sieve, again, I just can't see the relevance for 2/3 of what you're writing. How is fraud and blatant errors in any way related to the question I've set forth? Another example along the same lines might be, we botch the APD test and tell the client to send out refunds for the Plan. Is that a fiduciary act on our part? I think the more relevant question in that situation is what does our E&O policy cover? (thankfully, I've never had to find out!!) Would you kindly clarify that at the heart of the issue is what constitutes discretionary authority over plan assets? In your eyes it's black and white, but I've polled other equally impressive people (you're posts make it clear you're in their arena) and they say "it's not clear." I concede it is definitely a gray area, with compelling arguments on both sides...

Following the terms of the plan is not a fiduciary function. A fiduciary is one HAS DISCRETION over plan assets. There is no discretion involved. For example, if someone is being evicted from their principal residence, the plan administrator has no option but to approve the distribution. If someone terminates employment and the HR rep signs off on the John Hancock form, there's no way that makes them a fiduciary. A hardship is only one level of "gray" above a termination distribution. Same thing with loans. Someone applies for a loan, if the HR rep signs off on the loan again, no way that makes them a fiduciary (in my opinion) because again no discretion is involved to the extent it is allowed. Now, whoever sets the interest rate is a fiduciay, but simply signing off on a loan does not create fiduciary status (my opinion again). In my humble opinion, not every single person involved in plan administration is a fiduciary.

I'm not sure that's relevant. I mean everyone makes mistakes... Sure if we screwed anything up we'd be responsible. That's just part of the deal... I definitely agree that at a minimum it makes sense to forward to the plan administrator a copy of the related support so tha tif nothing else, they can sign off in good faith. But of course, HR managers across the county are signing off on these things, and I have a sneaking suspicion they are not going to be held as fiduciaries if they do the same things that we have described here (i.e., get copies of invoices and approve for this).

Geeze thanks, I was starting to think I was crazy... Guess it's grayer than I once thought, but I still don't see where the discretion comes in.

OK, set's let's say a fiduciary it does make. You would agree that it would not extend to making the TPA responsible for say, poor investment decisions made by the trustee? So the exposure would be very limited, particularly if the hardship was clearly demonstrated.

OK, let's say we're the TPA. Participant sends us a letter of impending foreclosure. Let's say we prepare the paperwork for the client to execute, and the client signs off on it and we don't send them support for the hardship. My opinion is that this would NOT make a fiduciary because the plan includes objective criteria and there is generally no judgment involved (for example, you either have medical expenses or you don't). I can think of a handful of situations where judgment would be involved. Others in the office take the opposite opinion and say "approving it is a fiduciary function." I say approving it would be "performing purely minesterial" activities related to plan administration. Assume the Plans use the safe harbor standards. What do YOU think?

I think the DOL would conclude that those deferrals were never deposited to the plan, and should therefore be deposited plus lost interest. I would just allocate it pro rata to anyone who had deferrals in the pay-period in which it was used. The forfeitures that were put in their accounts could probably just be considered additional profit sharing, but is probably way to insignificant to worry about. The most important thing is to get the deferrals into the plan(i.e., the ones that are sitting in the corporate checking account).