QDROphile

I can see why you would have a question of relevance if you thought it belonged on the 409A board. That is why I guessed at Notice 2008-62.

It wasn't necessary. The IRS did not issue the ruling. Trick question, or do you mean Notice 2008-62? It was necessary if only to get attention to the issue.

Word "joinder" suggests you are in California, so all bets are off. That said, the division of marital property is part of the proceeding, which is a joint responsibility. Traditionally, the alternate payee (not the pension participant) takes on drafting the domestic relations order, but genereally there is no rule and the the court can decide whose responsibility it is and who pays for it no matter who does the drafting. I hope that your plan administrator is not a pansy, but I fear the worst (remember, you are in California). The suspension of your full benefit payment pending resolution of has limits on it, both as to amount and as to time. Unfortunately, the amount of time will seem very long. You will be told 18 months, even though that is not really the right answer. If you are in for a fight, you should try to get an experienced lawyer to help. Most domestic relations lawyers are not up to the task, especially since you might need to take on your plan administrator if matters get drawn out with your spouse. Interview and choose carefully. The court will not help in making sure you get fair treatment. The judges do not understand QDROs even thoguh the California Supreme Court says that they do. I hesitate to do anything to encourage you to take this on without experienced professional help, but the Department of Labor has a QDRO book on its website and available in hard copy upon request. It is a good resource, but is laking in many ways. And remember, the DOL has challenged the California domestic relations procedures as applied to retirement plans and failed. Perhaps it had someting to do with trying to resolve matters in courts in Califiornia.

As far as I know, it is all on paper, and not the subject of any focus or any real concern or actions by the regulators. Also, the ERISA stnadard relating to the relationship of the employers and what constitutes a single employer may not be the standard under the securities laws. But if a participant actually has and exercises rescission rights, I cannot comprehend all of the implications under ERISA and the tax code.

I know everyone retches when I make this comment, but your reference to ADP testing indicates that the plan is a 401(k) plan. The employers need advice about compliance with securities law. It is not an adequate answer to say the the plan has no employer securities. Multiple employer plans have unique problems.

Either is adequate and I could come up with a few more. My downfall is the quick pass by with the obvious solution or observation.

That should be fun if she is still employed by the same employer ... unless she no longer works for that employer. Hmm. Explain how that could happen. I know that Masschusetts is famous for some of its no-show government jobs. Someone could be employed but not really working, but in the private sector even that arrangement would usually not allow a distribution of elective deferral amounts, nor a distribution of other employer contributons. After-tax employee contributions, anyone?

I have advised employers to stay out of it and leave it to the annuity providers to deal with domestic relations orders out of the concern you stated. I would have to go back to the regualtions and the DOL guidance to reconsider under the new regime because I don't have a recollection of how QDROs fit into the mix. I regret that I can't take the time for review now.

What is your policy about providing copies of the account statements from the December 31, 1997 date to the most recent, assuming participant consent?

That should be fun if she is still employed by the same employer, considering that it is likely to be impossible for her to get the money from the 401(k) plan even if she wanted to do so.

Substitute vesting for contribution in Janet M's post.

Kevin C: Can you identify the guidance about the leeway to change and number of months. That guidance would be very helpful.

The agreement has been amended to operate in good faith compliance with 409A. Evidently no one knows what that amendment is at the moment, but be sure to comply with it. I would bet it is the same as the amendment that applies, and will be documented, for any other benefits payable on death under similar arrangements.

I think the question was an existential question. Are we free? Oops. Wrong existential question. Is there any way to show that the amendment ever existed anywhere at any time by producing a copy (not even the original) now? If some amendment document can be produced from some source, then you can start telling a story about how this plan was actually amended by it. Without the doucment, you move from the existential realm to the metaphysical. But why do you need an amendment document? Plan terms don't have to be documented until the end of this year. Until then, you can amend in your mind and operate in good fatih compliance.

So the fact that the ESOP regulations expressly warn about section 415 violations has no meaning? If I were the jack booted thugs in the IRS I would apply my boot to a certain part of the anatomy of the employer that flouted the warning and designed an ESOP/ESOP loan that continually violated the section 415 limits. Translation of the regulation: don't be a big when you size the loan. If circumsntances have changed, such as a decline in the employee population, one plan or the other needs to take measures to avoid the violation. That may mean limits on elective deferrals.

You want thoughts? Your original post shows clearly what is wrong with the idea of a mid year rate increase applied prospectively, even forgetting about the compliance issues. It is unfair and it it departs from what a match is all about. If the employer wants to make up for the loss of the db benefit, spread the mitigation around the same group that suffered the loss. Don't mitigate by a match that is really a mismatch in the larger sense.

The ESOP can be a money purchase plan, so you can get around the question if can't find authority for another option.

Benefits are accrued under the MPP. Benefits cannot be cut back. There may be authority out there that says getting "just as good as" benefits is not a cut back, or that providing the same result as a contribution to the MPP with a subsequent merger of the MPP in to a new plan is not a cut back. Absent that authority, I would not advocate failure to make a contribution to the MPP under which the benefit accrued. Amending an MMP into a profit sharing plan was merging the MMP into the profit sharing plan. The MPP terms with respect to the benefits accrued survived the merger, and the contribution was to the MPP plan in that respect. Hence my suggestion to amend the MPP into the ESOP that the employer wants going forward. The ESOP could be a combination MPP and stock bonus plan, so the question about stiffing the MPP is avoided.

I was not suggesting that the pre-2008 MPP be converted to an ESOP.

I would love to see the authority for making a contribution to another type of plan instead of a contribution that was required under a MPP. I thought that is what 204(h) is all about.

Amend the MPP to make it into the ESOP so the contribution for 2008 goes to the ESOP. Sounds like this employer will have a rough ride with an ESOP.

The plan administrator takes the QDRO under the current circumstances and applies it as well is it can, or determines that the order is not qualified if the terms cannot reasonably be applied to the benefit as it is now -- in pay status. I would not make any effort to apply the order other than propectively to payments yet to be made. Other than that, it is all a matter of judgment and interpretation, and within the authority of the plan administrator. The determination of qualification (if qualified) should describe the application of the QDRO terms and efect on each person. If the individuals object, then the dispute need to be resolved in an appropriate way, which might mean that a determination of qualification is reversed. Meanwhile, since the plan has received a domestic relations order, payments should be suspended to the extent required by law to preserve benefits that may be subject to a QDRO.

Access fees are still not eligible for FSA payment.

Rev. Rul. 2002-27. The post did not give a lot of details, so the warning must be evaluated depending on circumstances.

Qualifed retirement plans may need terms to deal with "deemed" cafeteria plans and effect on compensation.