QDROphile

If an employer actually sets aside funds to cover the nonqualified deferred compensation obligation that accrues, those funds belong to the employer and the employer can do whatever it wishes with the funds, subject to any contractual (including trust agreement) terms about disposition of the funds. If you mean "can be prohibited" against its will, no. If means other than an appropriate grantor trust are employed to protect or secure the set-aside assets for the benefit of the particpant, the benefit may become taxable.

The plan and trust document provisions will determine the operation of the FSA and the application of the trust. Mind your words, be they expressed in one collection of pages or in several collections of pages.

1. The owner should be notified of the subpoena and the intent to furnish information so the owner has the opportunity to quash the subpoena -- which is most likely to fail if attempted. 2. Subpoenas are served on persons who are holding information. If the subpoena was delivered to the TPA, the presumption is that the intent is to obtain information held by the TPA and that would include plan information. It makes no sense to play games about scope. The source of the issuance of the subpoena should be contacted to determine and clarify what is actually desired. Usually a subpoena asks for far more than the target information for fear of missing the target and discussion and cooperation will narrow the request as well as allow more time and avoidance of appearance. A typical subpoena commands the record keeper to appear at a time and place and bring the documents. A cooperative approach usually results in sending copies of selected information in a reasonable time rather than showing up with a lot of unnecessary and unwanted documents. If you try to be cute and withhold information in possession on some technical or interpretive basis, you will at a minimum just get another subpoena. If the plan information is what is desired, ultimately it will be turned over. If there really is information that has a legitimate basis for protection, the owner should be the one who knows. See #1.

You are more likely to get helpful comments about technical aspects of QDROs on this board. For my part, issues about what is fair with respect to dividing assets or not are not matters that have answers that can be given from afar. Fight about that in local court. As to the technical issues, the stream of retirement payments for your life can be divided prospectively any way the court approves, including initial payments that are increased for some time to make up for past payments that were not divided. Yes, you can argue that the delay that caused those payments to slip by without division is the former spouse's fault and it is unfair to go back and retrieve them, but the federal law about QDROs is indifferent to fairness. That is a matter of state domestic relations law and a competent local lawyer is your best bet but will not be able to perform magic.

Only certain corporate entities can be a trustee - those with statutory trust authority. Otherwise it must be an individual.

I agree with Jim Chad. You might have to provide the long story to new SIMPLE IRA provider to convince it to participate in the correction and you employer might have to join you in the effort. Forty lashes to your employer and your credit union. I assume for now that you are an innocent victim.

Negative. You can ask, but the plan administrator cannot give you personal information without participant consent. The Department of Labor position otherwise is incorrect, but many plans will provide the information because of the DOL position or will ask the participant for consent. Your divorce probably enables issuance of a subpoena for the information and a plan should respect the subpoena. Also, if your divorce is pending, the spouse can be ordered to provide the information, but a subpoena is easier.

What you describe cannot be achieved in the conventional terms you have used. Lou S's observation indicative of the problem. You need someone with a lot of sophistication in accounting and compensation to achieve what is desired for the non-elective contributions. You should not try to circumvent W-2 compensation for elective deferrals (the elective deferral will not reduce FICA wages. the whole system will be confusing to the participants because they will be unable to match their concept of compensation with how amounts are treated for plan purposes.

Example of right conditions: The plan documents of custodial account arrangements (each of which is a plan) provide for transfer to/from another custodial account arrangement, as appropriate, and distribution restrictions are preserved in the receiving plan as required by law. It concerns me that this is a follow-up question because the best approach is to keep the one plan of the employer and modify it to have the current arrangement as an option under the plan while adding the desired new arrangements. No plan-to-plan transfers are necessary. I wonder if you understand what a 403(b) plan is, or are confusing my reference to plan transfers with contract transfers. Perhaps you are stuck with a particular provider and the provider cannot see beyond its experience with products or cannot offer you the best product. It is better for the employer to take over the plan and look at the desired products and features separately rather than let a product or provider define the plan.

A timely amendment may be possible to justify the action.

Even with publicly traded stock there are securities law issues and there are accounting issues. None are show stoppers, but the additional complexity and potential for mistake and misunderstanding are a consideration.

The plan is likely to end up with violations of the trust rules, plan terms, and distribution restrictions.

Rather than play a guessing game, how about providing some relevant information, such as whether or not the stock is publicly traded and what you mean by a supplemental 401(k)? No matter what, an employer stock investment option increases complexity and potential for trouble, especially if elective contributions are eligible.

Depends on definitions and interpretation of plan terms. It is a bad practice to treat someone as employed if they are not performing services and entitled to the usual perquisites of employment. Employers use it as a bright idea to solve various problems and they are kidding themselves as well as often violating state law. And don't send a message about ERISA preemption. I am making a more general point and not saying it is necessarily a violation of rules applicable to retirement plans

You should take another look at what "they" suggested, with two thoughts: 1. The freeze is simply a proscription on new money or transfers going into the current contract and the "new" plan is the new options for holding/investing new money (an expansion of the current plan). "They" would have to agree based on what the current contract says, but I do not see a difference. "They" suggested that individuals could transfer or not separately at their elections. 2. Distribution events are required for transfers by rollover. A distribution event is not required to transfer from the current contract accounts to the new accounts/options under the plan. Conceiving of the arrangement as the same plan rather than a new separate plan should help you get your head around this, but transfers from plan-to-plan also work under the right conditions. You should be happy to have a provider that is looking for solutions that do not involve the provider holding on to old and new money. I depart from the suggestion because I think it is unnecessary to end up with two plans when some participants choose to keep old money where it is.

What and when were the formalities of adoption of the substantive provisions for elective deferrals in the plan document, and the effective date? What were the relevant communications to employees? For example, was the document (with the elective deferral provisions) adopted in 2015 with a January 1 effective date with a notice issued to participants that described elective deferrals? "Lack of intent" on the part of the adopter is meaningless in light of action and documents that clearly and loudly speak otherwise in such a monumental way, although the plan might prevail upon the IRS for grace under VCP. If participants were given reasonable opportunity to elect contributions but all failed or declined to defer, the plan can be amended prospectively to remove the elective deferral provisions.

If the plan administrator has determined that the petition is not a QDRO, then it is not enforceable. However, there are formalities associated with determination that an order in not qualified, and a reasonable time must be given to cure defects. Meanwhile the statutory protections afforded under the QDRO rules remain in effect during that reasonable time.

"Giving us time to flip our plans. 2 days notice" and "left us with one day to take care of the matter" Would you care to provide more details to make sense of this?

The plan can accept eligible rollover distributions under its own terms. Generally it is not a good idea to allow rollovers for anyone but "active" participants and I do not think it is discrimination to deny rollovers into the plan for "inactive" participants. Your circumstances are worthy of exception and I think the DC account balance should be irrelevant, but a distinction should not be discriminatory or otherwise impermissible.

Appointer vs appointee is not the issue. In a small business, they are likely to be the same. One important feature is that appointment has the effect of excluding unintended persons from potential fiduciary liability. Naming the employer as a plan fiduciary gives the DOL a broader net for indiscriminate fishing.

The plan sponsor has nothing to do with investment fiduciaries. The plan administrator has that responsibility. Generally, the plan sponsor should not be the plan administrator.

Lou S. is correct and an intelligently drafted document would have provisions that would make it unnecessary for you to be concerned about the circumstances if the intent was only to accommodate the early migration from D to G.

The consultant's contract should include responsibility for ongoing monitoring of the investment option menu and notice to the trustees of any development that would be reason for special attention to the option before the next regular meeting. Examples include a material change in the manager of the fund and any fundamentals of the fund.

Your conditions swallow the question. A fiduciary does not have discretion about the issuance of a loan outside of determining if the loan meets the legal and plan document requirements. Everything in this topic relates to legal requirements. Making some of the required determinations may require some judgments and certain designs may require more judgment calls than others.

A section 125 plan can be set up to provide for payment of dental insurance premiums, but an FSA cannot be used to pay or reimburse the premiums and "reimburse a participant up to $400" sounds more like an FSA to me.