austin3515

I agree with you Luke and I'm going that route. I was responding to BG5150 who was telling me he thought I could use -11(g) but I just don't see how that would work...

What I describe does not seem to be any of the things listed? I'm not trying to amend for those purposes. My plan has not issues at all for those purposes? (2) Scope of corrective amendments. For purposes of satisfying the minimum coverage requirements of section 410(b), the nondiscriminatory amount requirement of § 1.401(a)(4)-1(b)(2), or the nondiscriminatory plan amendment requirement of § 1.401(a)(4)-1(b)(4), a corrective amendment may retroactively increase accruals or allocations for employees who benefited under the plan during the plan year being corrected, or may grant accruals or allocations to individuals who did not benefit under the plan during the plan year being corrected. In addition, for purposes of satisfying the nondiscriminatory current availability requirement of § 1.401(a)(4)-4(b) for benefits, rights, or features, a corrective amendment may make a benefit, right, or feature available to employees to whom it was previously not available. A corrective amendment may not, however, correct for a failure to incorporate the pre-termination restrictions of § 1.401(a)(4)-5(b).

I think you had me at the fact that I am satisfying each and every requirement to make the amendment under EPCRS... Well I haven't done anything yet, I guess that's the dilemma. If I could go back in time and not look at that document I might take that option, LOL. But I think you've satisfied me with your last post!

Intersting. Here is the language. I suppose it does not specifically say you can;t intentionally do it wrong and then use EPCRS to correct. I guess I'm not finding any language in the overview section that says anything like "you're only allowed to do this if you did it wrong by accident." I think this is really most applicable (only applicable?) to amendments because as I mentioned the plan that catches the mistake before it happens is at a significant disadvantage over the one who messed it up and now has an easy fix. Thoughts on Luke Baileys ingenious take? (4) Early Inclusion of Otherwise Eligible Employee Failure. (a) Plan Amendment Correction Method. The Operational Failure of including an otherwise eligible employee in the plan who either (i) has not completed the plan's minimum age or service requirements, or (ii) has completed the plan's minimum age or service requirements but became a participant in the plan on a date earlier than the applicable plan entry date, may be corrected by using the plan amendment correction method set forth in this paragraph. The plan is amended retroactively to change the eligibility or entry date provisions to provide for the inclusion of the ineligible employee to reflect the plan's actual operations. The amendment may change the eligibility or entry date provisions with respect to only those ineligible employees that were wrongly included, and only to those ineligible employees, provided (i) the amendment satisfies 401(a) at the time it is adopted, (ii) the amendment would have satisfied 401(a) had the amendment been adopted at the earlier time when it is effective, and (iii) the employees affected by the amendment are predominantly nonhighly compensated employees. For a defined benefit plan, a contribution may have to be made to the plan for a correction that is accomplished through a plan amendment if the plan is subject to the requirements of 436(c) at the time of the amendment, as described in section 6.02(4)(e)(ii).

REg citation?

Ha! I thought of that too! But here is the problem. Any contrbiution that is made in reference to someone's deferrals IS A MATCH. Also the eligibility for the profit sharing is the same as the match...

"If so, and the client already funded the match, doesn't that mean a mistake was made? " They did not already fund the match. We identified the discrepancy while we were doing the match calculation. That's really the crux of the question. If I hadn;t been so good at my job, I would be able to correct the mistake,. "Or, in any case, can't you do an 11-g amendment to let people in early for the match for '21?" Well I'm not failing coverage so I don't see how that would work.

Let's say a client has 6 month eligibility for 401k but a year wait for a match in the document. But let's say the client communicated to the previous TPA that they wanted the match eligibility to line up with 401k eligibility and communicated that to the prior TPA when they were doing the Cycle 3 restatement. We prepared the match based on 12 months eligibility but the client has already told the employees they are eligible for the match sooner. Let's say hypothetically we didn't even look at the document and just prepared the match based on the 6 month eligibility because the client told us to and they funded it. Then a CPA auditor comes and says "hey what the heck you didn't use the 1 year eligibility for the match??". Our response: "Good catch, I'll self correct with an amendment today to get rid of that." So by that rationale, if we catch it BEFORE the mistake is made (which is our case), shouldn't we have the same opportunity to self-correct via amendment, especially when we are increasing benefits to non-highlys? It seems unfair to punish someone for NOT making a mistake.

yeah it works perfectl yfor me to. The name of the file is no longer "filing". Now it is the AckID. Somehow I doubt that is our problem but thought I would mention it. Try a different browser maybe?

Relius's response was that because there is the aforementioned ambiguity (as also referenced in EOB, etc) they chose not to impose the interpretation on their users. They did clarify that the Plan Administrator has enough leverage in the document to interpret the plan's provisions as to include it (but also to not). That's Section 10.4 if anyone is curious. I mean I completely understand the approach and there have been many times when I have been eternally grateful for positions like this. I just wish someone could explain the "other" interpretation of that code reference. I just cant see applying that code to these circumstances, deciding there is no need to recognize service based on the language, and then finding some other scenario that might come about where that same language DOES have an affect. Where is the scenario it does have an effect? That's what I cannot figure out. It's obviously not a Relius question, I have the same question of the EOB. Wicked smart people have obviously decided there is something, LOL.

Oh! Becasue 414(n)(4) is titled "time when first considered as Employee" That's it!! Thanks!

414(n)(4)(B) indicates you disregard that whole patagrpah. So the diregarded paragraph is what includes the 1,000 hour requirement. (2) Leased employee For purposes of paragraph (1), the term "leased employee" means any person who is not an employee of the recipient and who provides services to the recipient if— (A) such services are provided pursuant to an agreement between the recipient and any other person (in this subsection referred to as the "leasing organization"), (B) such person has performed such services for the recipient (or for the recipient and related persons) on a substantially full-time basis for a period of at least 1 year, and (C) such services are performed under primary direction or control by the recipient. (3) Requirements For purposes of this subsection, the requirements listed in this paragraph are— (B) sections 408(k), 408(p), 410, 411, 415, and 416, and (410 = Eligibility and 411 I believe is the vesting) (4) Time when first considered as employee (B) Years of service In the case of a person who is an employee of the recipient (whether by reason of this subsection or otherwise), for purposes of the requirements listed in paragraph (3), years of service for the recipient shall be determined by taking into account any period for which such employee would have been a leased employee but for the requirements of paragraph (2)(B). Me Writing Again! 2(A) and 2(C) do not include any stipulation about "substantially full-time" so any service must be counted. Now obviously if they didnt work a lot its less likely that will hit the 1,000 hours but that's besides the point especially for an elapsed time eligiblity provision. So I'm sorry but if there is ambiguity in this text it completely escapes me. Completely.

I don't get it though. What could 414(n)(4)(B) possibly mean if not recognize service? Maybe I'm the one missing something completely. It just seems like such a simple statement there should be no ambiguity at all. Where is the ambiguity?

Incident submitted and I will certainly let you know what they said!

That's what the EOB says too (no clear guidance), but Derrin Watson wrote this article and as of yesterday still stands by it. What is so surprising to me about all of this is that when you read that line of the IRC, I just cannot understand what that language would even mean if not to recognize the service of a temp when you hire them full-time. If you don't recognize that service, to me it must mean that that language has no purpose in the world, which cannot be (in my opinion). https://benefitslink.com/cgi-bin/qa.cgi?db=qa_who_is_employer&n=135 Example: Sally Switch was Sam's [e.g., Sam’s Staffing Firm (a temp agency) in the examples] common law employee when she started working for Recipient [e.g., Sam’s client using Temps] on 1/1/1999. Recipient hired her as a full-time employee on 9/1/1999. During the period from 1/1/1999 to 8/31/1999, Sally was a leased worker. Sally was never a leased employee because she did not satisfy the substantially full-time standard. She became Recipient's common law employee on 9/1/1999. She is credited with three years of service [as of 12/31/2001]. Because of 414(n)(4)(B), we count the period she was a leased worker.

Nah that's not it. That language deals exclusively with leased employees and whether or not an employer wants to voluntarily not apply the full-time/1 year requirement. My question deals with when they become the common law employee of the recipient. Appreciate the help though!!

By any chance can someone point me to the language in the Relius Corbel Doc that includes the provision to recognize the service of a temp-to-hire performed under the agency? i.e., 414(n)(4)(B). This the provision that says if someone is under the primary direction and control of the recipient, pursuant to an agreement, but does NOT meet the "substantially full time for a year" requirement, we nonetheless need to recognize their service for eligibility and vesting. I've scoured the document and cannot find it anywhere... There are a lot of "incorporated by reference" but nothing about this provision.

Trust me I know, really was just being lazy 😂

We did the Cyle 3 last year. And by the way Peter, if someone was going to sue a client, my assumption is they would have the decency to ask me for the most recent plan documents. It's the least they could do if they're going to put us to all that trouble!

Well it's funny you say that because it occurred to me separately that they are actually going to be going through a conversion later this year and we should be able to double up with the notices for that. Thanks BG!

Just being lazy I guess... And trying to save a tree on top of that (no one has an email...). You've talked me into it. I'll add that I actually think it is more confusing because it gives the impression something has changed when it reality nothing has changed. Having one giant bank serve as trustee instead of another giant to me sounds like nothing.

I know I know. It's a plan with over 1,000 people though. How aggregious would it be not to send it??

Plan being amended to change corporate trustee. Would you do an SMM or no?

https://www.efast.dol.gov/5500search/ The interface is much better and there is a new feature to allow filtering by all sorts of criteria.

Mine makes no mention of such a requirement.... Still it would be nice if there was an article or a reg reference or something like that. If anyone has such a thing, please shout out!