QDROphile

Many ESOPs hold only shares and no cash. If "funds" means cash, it is not surprising that there is none. Many ESOPs provide for distribution of shares to participants, and then the recipient sells the shares to the company or the ESOP to get cash in the end. The answer about funds also might have to do with timing. If the ESOP will distribute cash, it may do it on a particular schedule and will have cash only immediately before the distribution. Finally, the company may be broke, so no matter how the ESOP is designed, there is no cash by any means to pay ESOP participants. You should read the summamry plan description for the plan to try to get an understanding of where the money comnes from and when.

You need to take into account the new section 415 regulations and whether or not the plan terms take into account the the section 415 regulations.

Makes no difference if it was set up as a multiple employer plan. The securities law problem arises because multiple employer plans do not enjoy the exemption from registration that single employer plans have, whether or not the plan expressly recognizes the multiple employer status.

If the particpating employers are not all in a controlled group you need to call a securities lawyer.

It would probably be reasonable for the plan administrator to interpret the plan to provide for match based on all of the elective deferrals for the year, but a careful reading of all of the relevant terms is necessary.

The DB plans may be providing benefits under section 401(h) of the tax code. A 401(k) plan cannot provide benefits under 401(h), but a money purchase pension plan could.

For details about how to comply with section 415 by reducing nonelective employer contributions you will need to consult with a competent professional and the particulars of your situation. The most straightforward approach is to start with a proposed profit sharing contribution and test for section 415 compliance, taking into account all expected annual additions and the plan's allocation provisions, including the proposed profit sharing contribution. To the the extent the proposed contribution would cause an excess, the proposed allocation to the participant would be reduced and the proposed contribution would also be reduced by an amount that would cause all actual annual additions to comply with the limits. It appears that you would not have to take into account discrimination rules in making the reductions because all employees are HCEs. Plan terms have to support the method of calculating and reducing amounts.

You can reduce the profit sharing contribution amount if you do it right, including correct timing. The plan needs appropriate terms.

You can still reduce the deferrals under the new regulations, but an excess is tough to catch in time. It is easier to reduce the nonelective employer contributions that are typically made after the end of the year because those amounts can be tested on a pro forma basis before determining and contributing the amounts. The plan must have terms to provide for the reductions.

How do employees get to make individual deferral elections to a governmental qualified plan, other than a grandfathered 401(k) plan?

What about the snag point in (B)(1)? It sounds like the employer is thinking in 2008 about compensating the employee for services in 2007. How could the employee have received the compensation in 2007 but for the election, and when was this election?

If you had either a decent order or decent written QDRO procedures, you would know. So maybe you have to reject the order because it fails to specify adequately the amount payble to the alternate payee.

I would really love to see the TPA trace through what I presume are the section 415 regulations to get to the result you describe. For starters, compare sections 1.415( c)-2(e) (2) and (e)(3). Forget about the "employee" fraud for a moment (but only a moment). Did the spouse terminate employment? Somebody has a lot of explaining to do even before you get to the questions relating to 401(k) rules.

This is not the sort of advice that a plan record keeper should be providing.

Probably the most productive inquiry is whether or not a disclaimer of the benefit will work.

I am sorry, I did not read the original post correctly. The employer should not be bound to make any contribution for 2008 as long as plan terms are set by proper action before 2008. Once the plan year starts under terms that include a safe harbor 3% contribution, the employer is bound to make the contributions and cannot resort to testing.

I recall that if a 3% contribution feature applies, failure to contribute is a qualification failure. You do not resort to ADP testing.

The provision you quote is an obligation of the plan administrator for the benefit of participants. You might argue that inability of the plan administrator to have access to plan documents makes the administrator unable to comply with the law; that would be true for a lot more law than the provision you quoted.

Have you considered whether or not investment by an IRA in an LLC managed by the IRA owner/beneficiary is a prohibited transaction?

IRC section 4975( c)(1)(D), (E) and (F); similar provisions under ERISA section 406(b).

The correct outcome depends on many things, including terms of the plan, but section 414(u) would not require a contribution unless he returns to employment. You might look at the summary plan description for the plan to check on conditions for contributions.

Rights generally depend on the return to employment after the military service, within the prescribed time. If the employee returns with rights, the result is that the employee is treated as if employed during the military service (including a last day requirement).

Sorry, I just dug these out of an old file because they spoke to the issue and I don't have time to refresh myself on the specifics. Each of the two rulings has another similar ruling of about the same vintage if you want more words to consider.

Compare PLR 9112022 and PLR 9522017

See Prop. Treas. Reg. section 1.125-2 for election rules. There are no rules as such for "open enrollment." ERISA disclosure rules apply to the ERISA plans that are funded through the cafeteria plan, such as health benefits, including health flexible spending accounts.