austin3515

Jeez, I would think your client's deserve the benefit of the doubt! A specimen sounds like a perfectly reasonable request to me...

You've got a better chance at complying with the law if you do the opposite of TransAmerica says. You're on the money. Sounds like you're aware too that your top heavy exemption is blown in the plan design you're describing.

Let's say the problem was a little more aggregious - that is, the employer ignored a deferral election and never put the money away. Wouldn't it be reasonable to make a contribution equal to the missed deferrals? I'm certain at least half of the responders would tell you that you should at LEAST put in 50%. So haven't you gone above and beyond by putting in 100%? Depending on how big the plan is, I'd go in under VCP - I mean lets face it, the only one getting screwed here is the Company. Unless the deferrals were deducted on the return, not even the government is getting screwed. I too have seen lots of things go wrong, and this definitely at the top of the list!!!

Can't be done. The match plan and the PS plan are two totally independent "plans". This should not be confused with the top heavy rule, which allows THM's to be offset by the match.

This wouldn't be excluding participants based on service. One plan would simply be closed to new entrants. It's no different than grandfathering employees into a DB plan, and rolling out a 401(k) for the new employees, which I dare say happens often. You might be able to accomplish what you want in one plan, too. I think Janet M is asking the key question.

Bring em in!!!

That's how I felt too... I think a snowball has a better chance in you know where, than a non-barcoded attachment to a schedule I has of being read... Apparently though, Steve Forbes suggested doing just this...

For a non-audited schedule I, are people attaching a schedule of late deposits in order to demonstrate that the correction has been made? Or are you just filling in line 4a, since the schedule is not required anyway?

You mentioned multiemployer plans, but this is a multiple employer plan?

Plan effective 4/1/04, with 9/30/04 PYE, so 2004 form is filed for the first plan year because it began in 2004. Now for the 9/30/05 Plan Year, I need to file another 2004 form because that plan year began in 2004. Will the DOL get confused (i.e., will the software program spit it out)? I'm wondering if my intitial form should be filed on a 2003 form to avoid confusion (obviously, I would indicate the appropriate plan year in the space provided).

PEople just aren't going to require participants to fill out new paperwork everytime their name changes due to marriage divorce. What would be the point? Would their ever really be a dispute about whether or not this person really was at one time known by another name?

If most of the "contributions" were allocated to NHCE's there's nothing to correct. The only time you usually run into trouble with this is if the fees are calculated based on account balance, and the owner's got a huge share. Sounds like yours are transaction based, which sounds more like a per-capita contriubtion? Even if the fee is "per share allocated", it should still pass nondiscrimination. Were you maxing out under 404?

I've heard of plans that match 200% with crappy participation. Depends on the employees. "Free money" doesn't help if you can't put food on the table or pay the mortgage...

Just got back a DOL Letter - the DOL calced using the best performing fund. I guess the DOL calculator is really dead...

IAn Dingwall, chief accountant at the DOL, has said in seminars that I've attended that a zero interest account is fine to comply with the "assets held in trust requirement." As others have suggested, the DOL's only concern with respect to employee contributions is that they are held in trust, and therefore protected by the broad trust laws. How they are invested is a FIDUCIARY issue, and I think a participant would be hard pressed to file a suit (class or individual) to recover any losses from a non-interest bearing account because the lost earnings are simply not significant (assuming they are invested at least monthly). I know this is a common alternative to making investments each pay period.

M PReston - I thought the regulations stated that the deposits would be considered profit sharing if made BEFORE the services were rendered? So if they're after services are rendered but before pay-date, you should be okay. Once the service is rendered, it seems that the Plan has an inevitable right to the assets (and the amount can be determined), even if the pay-date has not yet passed. So you run payroll Wednesday, doesn't it seem logical to send the money in on Wednesday? Even if pay-day is Friday? I think most pay-period depositers do it this way...

I think it was me who said (I added the brackets to clarify): Finally, the "match on the missed deferrals" for 1/6 assumes that eligible employees were excluded from deferrals, when they should not have been [the "match" is the correction set forth in EPCRS for this type of failure]. To this, I would suggest that an argument could be made that these earnings relateed to 2004 based on the "de minimis" rule in reg 1.415 something or other. Do a search for "de minimis" in each of the 415 regs and you'll find it somewhere. I've seen EXPERT ERISA attorneys make this claim despite the plan's use of W-2 wages.

I agree with PIP too. I'd bet the farm there's no last day/1,000 gour rule. Although there will almost certainly be a section entitled "Timing of Deposits" it is clear that there should be multiple deposits during the year. But 3.1 definitely relates to initial eligibility. More likely than not, the document is a Corbel volume submitter based document, and all the Corbel Docs have eligibility in Section 3 and Contributions in Section 4. No way an attorney who drafts documents on a regular basis (or even occassionally) would have allocation conditions following Section 4.1. Finally, the "match on the missed deferrals" for 1/6 assumes that eligible employees were excluded from deferrals, when they should not have been. To this, I would suggest that an argument could be made that these earnings relateed to 2004 based on the "de minimis" rule in reg 1.415 something or other. Do a search for "de minimis" in each of the 415 regs and you'll find it somewhere. I've seen EXPERT ERISA attorneys make this claim despite the plan's use of W-2 wages.

NAIU - We had the EXACT scenario you just described, which is why I was shocked to hear J2D2's response...

What did they want instead? Best performing fund? Does anyone else feel this discriminates agaisnt the small employer, for whom the cost of filing under VFCP is most significant (relatively speaking).

The DOL is saying publicly now that you can only use the DOL calculator if you file under VFCP. However, we've had clients ajudited by the DOL, where the auditor goes so far as to fill out the interest calculator for us as an example of how to correct?? I'm curious what other people are finding. Is it just a few higher ups pontificating, or are the field investigators applying this stupid standard as well?

I thought about quoting those regs, but you don't HAVE to use a 414(s) definition to calculate deferrals - you need to use 414(s) for testing purposes...

As long as 83% of the HCE's comp is being excluded as well, that wouldn't necessarily be an issue. That beig said, this CLEARLY discriminates against the NHCE's, as PIP mentioned. I wouldn't even consider this plan design without IRS approval. Personally, I wouldn't waste my money on the application.

You're doing okay on your own, but I would hire a TPA to do all this for you. There's thousands of things to know, and only someone who does it day in and day out can have a shot at even knowing most of them. It will be worth the extra cost if you get audited by the IRS. Also, the fact that you didn't mention top-heavy in your original post means that you missed the single most important issue your Plan faces (in terms of how sorry you'll be if you get it wrong!). Small plans are almost guaranteed to become top-heavy at some point.

If the Plan allows in-service distributions, I can't see why not. The qualification of the Plan is not as much of an issue with an after-tax distribution. If the Plan does not allow in-service, then amend the plan accordingly (assuming the 401(k) restraints won't put the whammy on things). I think there are probably a lot of issues to consider here though. For example, I'm not certain there is such a thing as a "late safe harbor contribuion." No doubt the Plan gets the money, but I'm not sure the Plan can skirt the ADP test in this scenario. Of course if the owner needs to get cash out anyway, I suppose failing the ADP test is of no consequence (except amending his 1040 from 05, if he's already filed).