austin3515

25% is too small. It should be 100%. Maybe the Supreme Court agrees that 50% is a fair deal and now all of a sudden that applies to the whole country. because really under EPCRS some missed deferrals get 25% and some get 50%. A missed deferral is a missed deferral. I could see a court saying so. i confess I didn’t go to law school so maybe there is some reason why that could never happen but what I hear is if someone makes a claim of unfairness tbe fact that the irs deemed it fair no longer has any weight. I realize that participants could have sued all along but now the fact that the irs had it deemed it reasonable is border line irrelevant. It must at least be easier to bring claims like that now, right?

The participants is what I was thinking.

I remember now that the auto enroll zero QNEC is in the statute now, so just switch for 3 years of missed deferrals and a 25%QNEC.

Forfeitures cannot be used to fund QNECs (i know they fixed that one but man that one got under my skin!) And maybe the courts would not agree that a zero QNEC is appropriate to correct 15 months of not implementing an auto enrollment. I really think EPCRS is reviewable now. There are often statutes that say “the irs shall write regulations no later than” so I am not convinced the statute you referenced will protect it. Maybe it makes them more protected, but who knows. How about some challenge to the conclusion that employee class exclusions are permitted under the LTPT statute. I can imagine some sort of a class action thing where a large group of employees was improperly excluded from the ability to participate based on the IRS position. And doesn’t this sort of thing require the IRS to be far more conservative on these types of decisions? Imagine if this was reversed in 5 years by the Supreme Court in favor of excluded participants. and along the same lines, the IRS concluded that a new spin off plan is not subject to auto enrollment. I can see a class action here too over the meaning of “established.” Regulations are a pain. But at least you knew what the answers were and could more or less take them to the bank. Now we have to consider the level of consistency between the reg and the statute (especially important questions where the statute is silent, like LTPTs and excluded classes). It seems to me that the risk of administering 401k plans has gone up (as employers). And it also seems to me we’re going to need more courts and judges and lawyers. A lot more. Somehow, I doubt the result of this will be Congress writing better laws that perhaps need less interpretation.

Here is an example - what does this mean for EPCRS? How can it stand?

https://www.kiplinger.com/taxes/supreme-court-strikes-down-chevron Worth a read. This will change our world dramatically. For the better or for the worse I do not know. My guess is some of both.

I'm looking for someone who has published the table that has the permitted disparity factors. So the one I have has 3 columns, one each for SS Retirement Ages of 65,66 and 67, and then has all of the NRA ages in each row. Can someone share that?

Supports everything Peter was saying.

From the EOB 2.a. Exemption requirements for profit sharing and stock bonus plans, including section 401(k) plans. For a profit sharing plan or stock bonus plan to be exempt from the QJSA requirements, the requirements described in 2.a.1) through 2.a.4) must be satisfied. IRC §401(a)(11)(B)(iii). Failure to satisfy any one requirement will subject the participant to the QJSA requirements. It is possible that these requirements, particularly those described in 2.a.2), 2.a.3) and 2.a.4), may be satisfied only for some of the participants. In that case, the plan would have to make the QJSA available at least to the participants who do not satisfy the exemption requirements. Treas. Reg. §1.401(a)-20, A-3. 2.a.1) Spouse must be death beneficiary in full. This requirement is satisfied if the participant's benefits are payable in full to the surviving spouse unless the spouse has consented to another beneficiary. As part of this requirement, the death benefit must be available to the spouse within a reasonable period following the participant's death (generally no more than 90 days), and the benefit payable to the spouse must be adjusted for gains or losses occurring after the participant's death. See Treas. Reg. §1.401(a)-20, A-3(b), and Section V of the chapter, relating to the payment of death benefits. Remember to change death benefit provisions in plan if plan is being amended to eliminate QJSA. In amendments to regulations under §1.411(d)-4, adopted on September 6, 2000, a profit sharing plan or stock bonus plan that currently offers the QJSA may be amended to eliminate that option without having to protect it with respect to accrued benefits. For details, see Part D.2. of this section. If elimination of the QJSA, pursuant to these regulations, is intended, make sure that the death benefit provisions of the plan satisfy the requirement described in 2.a.1) above, particularly in the case of preretirement death benefits. Some plans provide that spousal consent over a beneficiary is required only with respect to the portion of a preretirement death benefit that is payable in the form of a qualified preretirement survivor annuity (QPSA). If the QJSA is being eliminated by plan amendment, then subsequent to the elimination of the QJSA, the spouse’s consent will be required over the entire preretirement death benefit, pursuant to the requirement described in 2.a.1) above. For more details on preretirement death benefits, including the QPSA, see 4. below for a brief discussion, and Section V of this chapter for a more detailed explanation. 2.a.2) Life-contingent annuity options not available or annuity options not elected. This requirement is satisfied if there are no life annuity options in the plan or, if there are, the participant does not elect into the plan’s life annuity distribution options. In most plans drafted to be exempt from the QJSA rules, no life annuity options are available, so this rule will be satisfied for all participants. However, if a life annuity option has been eliminated from the plan but, because of the §411(d)(6) anti-cutback rule, the option needs to be protected, the QJSA rule may become applicable to some participants. IRC §411(d)(6) protection waived for some amendments. Due to the amendment of §1.411(d)-4 on September 6, 2000, it is now possible to eliminate all annuity options from a profit sharing plan or stock bonus plan, without having to protect such options with respect to accrued benefits. For details, see Part D.2. of this section. With these regulations, it is easier to make a “clean break” from the QJSA rules and not have to continue the QJSA payment option for any participants (unless the condition in 2.a.3) below cannot be satisfied with respect to a participant). 2.a.2)a) QJSA rule not triggered unless participant actually elects annuity option if one is available under the plan. If a participant is otherwise exempt from the QJSA requirement, the QJSA rule does not have to be triggered unless the participant actually elects a life annuity option. However, once a life annuity option is elected by the participant, the IRC §417 requirements will thereafter apply to all of the participant's benefits unless a separate accounting is made of the portion of the account balance subject to the life annuity election. See Treas. Reg. §1.401(a)-20, A-4. 2.a.2)b) Plan design considerations. Because of this element of the exemption requirements, many plan document drafters stay away from any annuity options under the plan so that the QJSA requirements never can come into play (assuming the rest of the exemption requirements are satisfied). This is particularly common in pre-approved plan documents, such as a prototype plan document. Under this approach, the employer is given a choice for designing the distribution options of the plan. Under one approach, the employer limits all distributions to either a lump sum distribution, installments over a specified period, or a combination of both, but no life-contingency distribution options. Where the employer chooses this design option, the plan document automatically applies all of the other exemption requirements so that the plan is exempt from the QJSA rules. But an alternative approach takes advantage of the election reference in Treas. Reg. §1.401(a)-20, A-4, as described in 2.a.2) above. Under this approach, the QJSA requirements are only triggered at the time the participant elects to have life annuity options available to him or her. The simplest way to design this approach is to have the plan generally permit only distribution options that are not life-contingency options, such as a lump sum distribution or a specified-term installment option, but for a participant who wants life-contingency options, the plan makes available an annuity contract investment. The annuity contract investment can be irrevocable or revocable, but the timing of when the QJSA rules are triggered depends on the revocability of the investment in the deferred annuity contract. This is precisely the approach that exists in the scenarios described in Rev. Rul. 2012-3, which is discussed in 4. below.

yes I remember that. normal form of distirbution is a lump-sum with ancillary option of an annuity but if they elect an annuity, it must be a QJSA unless the spouse consents. Otherwise no spousal waivers needed (except of course the beneficiary designation ones).

I thought there was something that said if the plan offeres annuities, but that an annuity was not the "normal form of benefit" or something like that, then the QJSA rules did not apply. Me personally I eliminate annuities all the time because they are just awful (Except of course when required by law), but I did think there was an easier method of allowing for annuities.

We agree the earliest due date for a late ADP refund (Calendar year plan) is March 31, 2025, right? We've never waited very long but that's how I'm reading the instructions. That means we would need to file an extension with payment until March 31, 2025? i.e., presumably this will be worked out by then... Not everyone in my office was comfortable filing on paper in light of the less than clear "permission" the IRS was granting.

Honestly knowing that the IRS has to approve the providers filings, I feel a lot better making the connection to "If the IRS's systems do not support electronic filing." I.e., if the IRS has not approved the vendors files, then the IRS systems do not support electronic filing. I wish the line was a little bit straighter but it does seem straight enough...

Well I received this message from customer support who was clearly copy/pasting. I probably don't have enough leverage to get to the senior exec who provided that message.

One of the major providers who is not yet ready to offer e-filing a form 5330 told us that their lack of ability to provide this service meant that the employers would be able to rely on the following exemption posted on the IRS's website and file on paper. Do people agree with that? My assumption is that the IRS told somebody at this major provider that that was the case. Otherwise, they would never tell me that it was an option. https://www.irs.gov/retirement-plans/mandatory-electronic-filing-for-certain-form-5330-filers-using-the-irs-modernized-e-file-system-mef "If the IRS's systems do not support electronic filing, taxpayers will not be required to file electronically. In general, the filer should maintain documentation supporting the undue hardship or other applicable reason for not filing electronically." Perhaps it is a stretch to suggest that the provider's inability to process and e-filing of the 5330 is part of the IRS's systems, but again, I find it hard to believe that the provider would've told us this if they hadn't received that response from the IRS. The "undue hardship" provision does seem to leave the door open towards a response of "my vendor was not able to do the e-filing".

I can see having one QDRO for multiple plans when they have the same plan administrator/sponsor or same controlled group perhaps. But a QDRO is a court order ordering someone to do something. I cannot see how such an order could obligate two unrelated parties to do 2 different things. I don't see it.

Completely but definitely worth a shot to file all of them under DFVC even the one for which you did get the notice. I assume that the DOL notice received did not include any penalties anyway. I think the only scenario where rejection, etc. would be relevant would be an attempt to get them to waive any penalties assessed.

Well I can't say I blame the IRS. It was too much change all at once, that was clear.

I have also learned since posting that there is an 8915-F for a similar repayment related to Qualified Disaster Distributions. Perhaps they will amend that form to include all of the various distributions that can now be repaid. Working on a training and it seems to include: QBAD's, Qualified Disaster Recovery, Domestic Abuse, and Emergency Expense. so hopefully they will give us some direction on how to do it.

I suppose the lack of urgency is probably related to everyone's understanding that no one will pay back these distributions 😂

I've scanned several articles and notice 2020-68 and I cannot find the answer to what I think is an obvious question. IF someone repays a QBAD how do they get back the taxes that they paid on that distribution?

Well if it were me, I would quickly file under DFVC and tell them so. My view of the matter is that they want people to comply and file the 5500's. They are not out to punish those who cooperate. No promises but I can't see how it hurts. I think technically it may not be allowed because one of the conditions is that th DOL has not reached out to you, but I just don't think they would reject the DFVC on that account.

All super valid points. Well I couldn't have made my point any better than you have for me. Whether a plan needs an audit or not should not be based on how a TPA happens to interpret the 5500 instructions. Thanks for making my point! By the way the alternative of hirng a $500 an hour ERISA attorney to answer this question for my clients is likely not going to impress than much either.

Ordinarily I would agree but the fact that there is debate about something so stupid is a perposterous waste of time. Do tbey need an audit or not? Should be simple. I have enough complexity to deal with 👍. now that being said I am convinced that the text is clear an unambiguous. Does anyone even see a gray area in that text? I see no ambiguity. Do I wish they used the words “count people with receivables only?” Yes I do. But I really think that’s only interpretation of the words they did choose

Ahh, I see this now (I didn;t see yours at first). The key thing is "or for whom a contribution has been made to the Plan for this plan year or any prior plan year." It does not say when that contribution has been funded. So I do think counting receivable only people is a clear and direct interpretation of what they said...