QDROphile

You might get some traction on a cut off under VCP, but SCP guidance does not support a cut off. SCP guidance is not the final answer under SCP, but we don't have much information about how tolerant the IRS is about deviation from the SCP guidance

ERISA and the tax code wouldn't like it and I don't think the circumstances fit the IRS concept of mistake of fact, which is a suggestion you will get. For income tax purposes I do not think the payees can walk away from the income -- this goes beyond constructive receipt to actual receipt. If the owners want to plow their pay back into the Company, they can do it, but on an after tax basis. They can give themselves a pay cut prospectively, but beware the rules under section 409A if they think they are deferring the pay to better times. I don't think any competent ERISA fiduciary who knows the facts as you tell them will part with the contribution money.

Mike Preston: True if (a) the company has no directors or executives that are not expected to function as fiduciaries and all directors and executives are aware that they have full fiduciary responsibility and attend to it, or (b) there are never assertions of substandard fiduciary performance. I suspect that a lot of (b) is responsible for your position. And to quibble with your wording, I agree that the plans do not suffer. The potential victims are the directors or executives who do not understand that they are fiduciaries with potential personal liability and fail to pay attention to the responsibilities that they fail to understand that they have. The corporate entity will not shield them from personal liability.

The total contribution is the responsibility of the Board. The allocation is the responsibility of the plan document. The Board can effectively determine the allocation by its control over plan terms (e.g. amendment), but otherwise should not get involved with the actual allocation of the contribution. It should limit its express action to the contribution. This thinking is driven in large part by the presumption that the company is not so stupid or ill-advised as to have the company be plan administrator. If you are looking for a legal reason, specific determination of allocation is an administrative/fiduciary function. Determination of the discretionary contribution is not a fiduciary function. The board should not want to be a fiduciary. If the board dabbles in fiduciary matters, the board will be a fiduciary and will not know how far the responsibility and potential liability goes once the fiduciary status is unconsciously established.

My 2 cents are the same as My 2 Cents. It pays to have a document with provisions that are understandable and comply with the law.

The domestic relations order can proceed and the outcome will be determined by the timing of delivery of the order to the plan and the timing of the events in the plan termination. The termination itself does not prevent the division of the benefit, but the termination may affect how the division is done and the options available. If the plan is liquidated before the order is delivered, the order may be thwarted. The participant may encounter some trouble in the state court if that happens.

1 & 2 Yes, but make sure the merger documentation provides for and describes the arrangements. Trustee B will hold Plan A assets (former Plan B assets) in trust under Trust A. Interesting question is whether or not to make this transparent to Trustee B and hope that Trustee B facilitates rather than obstructs.

To rephrase: the employer can authorize anyone to sign on behalf of the employer, and the plan administrator can authorize anyone to sign of behalf of the plan administrator, subject to any limits on the authority of the plan administrator to delegate or to appoint an agent or another fiduciary. Also, applicable authorization procedures must be followed. Service professionals usually do not sign as an agent because tax return documents are signed by the taxpayer under penalty of perjury.

Treating the "profit sharing" as a bonus subject to a special deferral election is the correct way to look at it.

I would be persuaded if 7.12.1.10 said it applied only to pension plans or did not apply to profit sharing plans. But expecting the IRS to draft well, especially in documents that may not be relied upon, is too much. I also am not impressed with any court decision in which the IRS tossed in the kitchen sink unless the decision reaches a specific ruling on the particular point and the court did not validate the IRS contention about the recurring contributions at all despite hitting on other reasons. I did not participate in setting up any 0% MPP plans. Maybe I just did not get the joke. I don't feel like any research on the subject. I will keep your concerns in mind the next time the issue is relevant.

Thank you for the reminder about the "qualified change" provisions that came out of the PPA. While refreshing my memory, I came across a lot of early discussions (circa 2007) about concerns about fiduciary liability with mapping under the "qualified change" standards. I guess I just filed the subject under "not preferred" and closed my mind on the subject until it was no longer a retrievable memory. The PPA provided the protections as you describe. For what it is worth, I still do not prefer it, but I think all the initial fuss was more an exercise in demonstration of the commentator's technical and analytic chops than a realistic assessment of any material risk of liability to a fiduciary that proceeded in good faith under the standards. Section 404(c ) has not provided a fertile ground for successful claims of fiduciary liability and I do not think that intelligent mapping is a material risk.

A participant makes an election with respect to a particular investment, such as a mutual fund, for which there is disclosures available. A participant does not make an election for a class of assets, a category of mutual funds, or "something like" the actual investment that the participant has chosen after careful research and review of the available disclosure materials. If the money is moved from an investment that the participant has chosen into something else that the participant has not chosen, then the investment is not directed by the participant. You can argue that the participant chose by negative implication -- not making an election after being informed what the outcome would be of the transaction, but I do not think that argument is a winner. However, that does not meant the fiduciary has liability; the core 404© protection is simply lost. That is what all the misplaced excitement over QDIAs is all about -- situations in which the participant does not make an affirmative choice of a specific investment and ends up in a fund, or another fund, not chosen except by default or design. As for a citation, it is all in the 404© and related regulations (now that the 404(a) regulations have absorbed a lot of 404© regulations). I should be challenging you to cite authority that the regulation about participant directed investments is satisfied when there is a move to some other investment that someone else has chosen and thinks is similar.

You are correct about the numbering. It is 7.12.1.x with x=9, 10, and 11. I think this comes out as a failure to have recurring contributions effectively causes a partial termination, with the most significant consequence being vesting for all at the point of the partial termination, whenever that is. It would certainly be if the plan were amended to provide for no more contributions. The plan could be maintained with a wasting trust, but the plan would be disqualified if the sponsor failed to maintain the document in compliance with formal requirements (e.g. amending to reflect changes in law) or applicable operational compliance. There would be few operational requirements other than to follow plan terms, including required distributions. The cessation of contributions, by itself, would not cause disqualification, and the freeze could be forever, subject to the required distribution rules.

Fair enough. How about a profit-sharing plan with no future contributions that has not been formally terminated, with a wasting trust, colloquially referred to as a frozen plan in Internal Revenue Manual, sections 17.12.1.9, 17.12.1.10, and 17.12.1.11?

An election does not carry over when investment options are removed or replaced in a plan.

First step of analysis: mapping drops the section 404© shield because the participant did not make the investment choice.

That needs an explanation. How do you distinguish from other frozen plans?

You are describing a plan that is maintained solely for the purpose of holding the loans that originated under the plan. The plan is frozen and the trust is a wasting trust, meaning that distributions or transfers occur, there are but no contributions. The plan must observe all requirements, such as maintaining a complain document, filing Form 5500, providing notices and statements. I am curious about how this administrative expense and annoyance is justified. I understand aversion to plan mergers, but the merger was not avoided.

What happens to the loans if the loans are excluded from the merger?

The comment about the promissory notes is a very good one because terms of the notes are often forgotten. If the notes provide for acceleration of the loan if the Company A payroll deduction ceases, consider that usually lenders may waive acceleration and default, whether or not there are express provisions. The plan may be able to waive on the condition that payments are made timely in a manner acceptable to the plan. If payment fails at some point, the loan accelerates.

It appears that the Plan A is being maintained as a frozen plan. Personal payment is a permissible method if allowed by plan and administrative terms, So is payroll deduction by Employer B with the deduction forwarded to Plan A. The deductions would have to be authorized by the individual employees, but that may be a welcome way to pay the loans. If personal payments are allowed, Plan A should also allow the personal payments to continue even if the participant terminates employment with Company B. Appropriate plan terms are critical.

Are you saying that all the other participants have not invested any funds or that they have all liquidated the investments, perhaps in anticipation of the transfer?

Jail is not impossible.

Now the sponsor knows that it made an honest mistake, it should realize the depth of ignorance and start arranging for training for plan fiduciaries concerning fiduciary responsibilities. Otherwise, I think the incident strongly suggests disregard for fiduciary standards.

Carol: What is the current thinking by the IRS about government entities or instrumentalities that are not education institutions and get 501© (3) status? The last indication I saw was skepticism about license to maintain a 403(b) plan.