QDROphile

My preference is for a default that gives each the same vesting percentage determined as of the date the AP's interest is defined. Wouldn't that provide the same result as determination as of the date of actual segregation? The order can provide that the AP's award is 100% vested, assuming enough vested dollars to cover. I hedge on whether the order can provide for disproportionate vesting. I can imagine allowing it under some conditions and circumstances and not others, depending on distribution provisions, among other things. The awards are seldom so exotic, so one can probably duck the issue and resort to section 414(p)(3)(A) in a pinch.. The procedures should deal with distributions, when they are allowed if the account is partially vested, and what happens to the unvested amount. The procedures have to fit with plan terms. For example, if the plan allows lump sum distributions only, I would not allow the AP to take a distribution of the vested portion and then get another distribution later when the remainder becomes vested. I agree that the procedures should not dictate vesting, but reasonable default terms can save time and trouble when dealing with thoughtless persons. The default and other terms have to fit the plan and the administrative goals and philosophies of the plan. It is difficult to state definitive "best practices" because the plan designs and administrative goals and philosophies vary.

I don't think you can do that, but those waters are untested. You are probably also doing a disservice to the employee.

You need either a better order or good written QDRO procedures to deal with it. Get yourself some good written QDRO procedures and some good advice to go along with it.

The nature of your question indicates that you need to understand 457(f) basics. The employer promises to pay an amount. The amount is determined by the terms of the plan. How the employer comes up with the payment is up to the employer. If the employer decides to hedge its promise or create a sinking fund for its promise, the employer may be limited by constraints on investments that apply to the employer. The ability of the employer to hedge may affect how the employer designs the plan to the extent the terms include an earnings component for the amount payable. The IRS has nothing to do with it, except indirectly. For example, a very large earnings rate could be a problem under 501©(3) rules if the employer is a 501©(3) organization.

Tell us more about the plan that has the loans. It will "terminated by way of the merger." What is merging? If plan A merges into plan B, loans in plan A are preserved in plan B.

I think there are few arrangements that would cause me to use a true separate interest approach under DB plans. That does not solve the problem of the wowser effect of actuarial reduction for a young AP. For that, one should listen one's parents, believe in the "equivalent" part of actuarial equivalent, or hire a better lawyer.

All of the above. The required distribution date is still based on the particpant. See Treas. Reg. 1.401(a)(9)-8. If the AP has to start when the participant starts, it is easier to assure compliance without unusual records and procedures.

Had the person not been rehired, the distribution would not have occurred until June. The person would have been entitled to a distrbution in June. Evidently the person did not take a distribution of other amounts before rehire. As of June the person was not entitled to a distribution. The person could not get a distribution of other assets in June. I don't see how one could get to an offset distribution in June or later or argue that a distribution occurred earlier than June. As always, plan terms should be considered, but you appear to have covered the terms and the established interpretations.

Perhaps it should be taken for granted, but nothing in the post says that the plan is terminating in connection with the transaction or that the plan will be amended to deal with the current express requirements under plan terms with respect to employer securities. If the plan is not terminating or being amended appropriately, you can't simply stop at exchanging the stock for cash. Acquisition of the company does not effectively kill the ESOP or allow the ESOP requirements to be disregarded.

What do you do about the plan provsion, arising out of the ESOP requirments, that says the participants have the right to receive a distribution of company stock?

You need to look at the terms of the plan in light of the definition of "pension plan" under section 2 of ERISA. You also need to consider if the arrangement is a "plan" under ERISA. A single person contract is probably not an ERISA plan, but there are court cases to the contrary. If the arrangement is an ERISA pension plan, it might be exempt from most ERISA requirements as a "top hat" plan. You should also consider compliance with securities laws.

The current income in lieu of match statement is troubling apart from your focus on the election issue. Seems like the irrevocable election would not be an election not to receive a match, even if you could craft it that way. There is more going on beneath the surface that is connected with the election.

There is no exception to prohibited transaction rules against use of IRA asssets for your personal benefit, tangible or intangible. Any time you have an ownership interest in you employer, it raises the prospect that the ownership gets you some goody beyond the investment return to your IRA. The rule is not the employee of the plan sponsor rule, it is the fiduciary of the account rule. You are a fiduciary of your IRA if you are directing the investments.

The highlighted passage applies to the plan that is making the distribution, not the plan that would be receiving the rollover. The primary issue for the recipient plan is interpretation of plan terms. The loan is an asset, in some ways just like cash. But is the recipient prepared to deal with the asset? For example. will the recipient require payroll deduction to service the loan or will it accept other forms of payment? What about the payment that is now overdue because of the transition? On what basis does it impose those conditions or requirments?

The plan adminstrator of the 401(a) plan can give you a document that explains your rollover options and has forms for instructions to the administrator about the rollover. The document is often called a "tax notice." You need to ask the plan administrator of the 401(k) plan if the rollover from the 401(a) plan will be accepted and what the administrator will require. A 401(k) plan is a 401(a) plan.

While it is true that the employer credit would not be an event that would allow a particpant to change a salary reduction election, that has no bearing on whether or not the employer can add or enhance a benefit mid-year. What makes you think an employer cannot increase an employer credit to the FSA or amend an FSA to provide for an employer credit? Another question. What is the employer trying to do? In a perfect world, everyone would have predicted their correct reimbursement needs and elected that amount, subject to the election limit. Now the employer comes around mid-year and throws another $400 into the account. It is $400 the participant does not need unless the election limit was below the participant's needs or the participant was unable to afford to fund the needed amount. The gesture could backfire. It could reward the ants over the grasshoppers.

You don't have to disagree. I did not commit myself. I stated that plans that allow APs to designate beneficiaries usually have a default. That default is usually something like a priority for spouse, children and then estate. Sometimes it cuts immediately to the estate. Even if the plan does not have default terms, the fiduciary should consider that result. The default of reversion is usually found when the plan does not allow APs to designate a beneficiary. In any event, the message is the disappearance of benefits is the last thing that should happen, and only if the plan is clearly designed that way.

That decision is aggressive and had better be backed up by something more than an absence of plan language or QDRO language to the contrary. It is customary to resolve questions in favor of paying accrued benefits, not making them disappear. For example, if the plan did not provide for a prescribed result or a clear priority among the three options, a fiduciary would have to give very serious consideration to reversion to the participant over forfeiture. A plan that allows an alternate payee to designate a beneficiary also usually provides for a default beneficiary, just as it would for a participant. DB plans don't have to allow APs to designate a beneficiary for pre-distribution death, but the usual consequence is reversion to the particpant.

Are you asking about an intent to elect a joint and 100% survivor annuity for a spouse or are you asking about an intent to award 100% of the participant's benefit to a former spouse alterrnate payee? It sounds like the former, but you are on the QDRO message board and you use the term "AP."

The direct rollover is still a rollover and not a transfer. Even though the direct rollover looks like a transfer and may in fact not involve having the participant "touch" the assets, it must still follow a distribution. The direct rollover rules are merely an artifice related to withholding. If a loan is distributed, the participant recieves or controls the loan. The direct rollover is not a transaction between the sending plan and the receiving plan, unlike when your mortgage lender sells the loan to another mortgage lender. When a debtor receives the debtor's loan or effectively controls it, the loan is extinguished. The rules on plan loans as applied to particpant loans from their own accounts are an interesting combination of fabrication with lip service to principle. If there is anything left of principle to loans or rollovers, the loan cannot be rolled over directly or indirectly. The IRS has adopted a practical position based on fabrication and ignored principle. It is not the first time.

Agreed. The distribution or rollover provisions have to allow the distribution or rollover of the loan, either expressly or within some specified asset class other than cash. Also, the plan terms cannot preclude a rollover of the loan.

Sorry, I missed the asset aquisition fact. The Company B plan can accept direct rollover of loans from another qualified plan if the plan document provides for it. At least that is what the IRS says. The IRS is wrong, but no one cares. The Company A plan should provide for in-kind distributions, and many plans provide only for cash distributions.

Why can Company A plan participants roll over to Company B plan?

AndyH: The regulations prescribe the options and the number of hours per period. Neither 2080 hours per year nor a prorated portion of 2080 per period is on the list. In fact, all of the precribed numbers are greater than you would use if you used 2080 per year, so the standard mistaken convention understates the hours. That makes the standard mistake dangerous. I agree with Boilerburm that it will rarely make a difference to a participant. But if the plan is asked to demonstrate compliance because of an audit, a claim, or in due diligence for a merger or acquisition, it becomes a challenge.

As a general matter, your approach looks reasonable, but different circumstances may require different reactions. If it fits, section 414(p)(7) says you can pay the participant amounts that would not be paid to the alternate payee if the order were qualfied.