QDROphile

Although indemnification may cover litigation and defense costs, one should consider having the indemnitor cover the defense costs (subject to favorable outcome, or ?) up front, or to defend the fiduciary, because such costs may be substantial and an indemnity operates only after the fact. Indemnity is subject to public policy limits. Under ERISA, that probably means, among other things, that actions not taken in good faith or not taken in the interests of participants cannot be indemnified. The Department of Labor has a special view about indemnification of ESOP fiduciaries.

Assuming that you are interested because of a qualified trust, more information is needed about the what the trust owns. For example, if the trust owns C corporation stock of a company that owns oil wells and the trust gets "oil well income" in the form of dividends on the stock, then the income is not UBI. If the trust owns an oil well and gets "oil well income" in the form of sales proceeds from the sale of oil produced by the well, then the income is probably UBI.

My recollection is that if the plan is subject to the QJSA requirements, then spouse consent is required for loans. It was many years ago that the specific question was examined.

Depending on how bold or imaginative you are, you might believe there are other circumstance involving an election that fall short of a cash or deferred election.

The plan is a contract. Whether or not one party can unilaterally change a contract depends on contract terms and contract law.

Can you do what you want or are you stuck with an inflexible administartive system/provider?

It is still an ERISA plan, which generally means that the participant is entitled only to what the plan provides. As for "contribute," a lot of plans are poorly drafted and a better term would be "credit" to the bookkeeping account that measures the employer deferred compensation obligation. Leaves open the opportunity to dispute the meaning of a term that has no meaning under section 457(b).

The deferred compensation arrangement is a contract. The employer needs to evaluate the prospect of breaching the contract terms. Your message touches on some of the considerations.

Nonqualified plans are not subject to ERISA or tax code proscriptions that apply to qualified plans. All the more reason to get professional advice.

I bet that your plan administrator does not know. The plan administrator relies on a financial services provider, such as a mutual fund company (think Vanguard, T. Rowe Price), insurance company, or other provider (Flying Spaghetti Monster forbid, ADP) perform the calculation based on the instruction to compute related earnings. The financial services provider has a methodology that is usually some sort of algorithm. It would be good for the plan administrator's soul to understand and explain the methodology and break it down for you with actual numbers applicable to your account. You can frame your inquiry as a claim under your plan's claims procedure if the plan administrator is not forthcoming informally.

Many states have payroll laws that forbid withholding without employee consent. There are law firms that specialize in bringing class action suits for the statutory penalties involved. If I were of such a mind, I might assert that failure to deliver to the retirement plan as directed means that delay in refunding the money that could not be used in accordance with the consent is a violation of the statute. Withholding money and then not paying it until it happens to be convenient for the payroll system does not present a nice picture.

While a plan can get away with whatever it wants as a practical matter, and mistake is the rule with respect to "holds" (there is really no such thing under the law), if a plan is presented with a domestic relations order it is required to determine qualification "promptly" and provide a reasonable time for correction of qualification of defects. If defects are not cured, the distribution should proceed. If the plan does not have a domestic relations order at the time of application for benefits, the plan should pay the benefits. Even the mistaken plans will need to assess what is has by way of a "hold" and require some diligence in processing. I infer that you are in California and the California abomination of "joinder order" is in play. It is interesting that AT&T is a named party in quite a few reported QDRO cases -- mostly getting it wrong. Your problem is that you will need representation by someone who knows that stuff and you won't want to pay what it will cost -- that is why the plans can get away with whatever they want. CADMT's bottom line is is the most practical approach, even if I disagree with the other details.

The sad reality is that a lot of small plans (and others) rely on a bundled service provider for all advice about maintaining the plan because the advice appears to be free. The advice is often worth exactly what is paid for it and it often makes the provider a functional fiduciary, which is a problem both for the provider and the named fiduciary.

To be able to change coverage becuase of a change in status, the change in coverage must relate to the change in status. Most plans require the election to change coverage to be made within 30 days of the change in status event, some go out as far as 60 days, as a matter of determining that the election relates to the event.

See IRC section 402(g) (1) and (3) concerning aggregation of elective deferrals for limit applicable to the individual.

You also have to follow plan terms. You hope for a a provision that allows a choice of any permissible definition of compensation for testing.

A good plan document will answer the question. Absent a clear answer from the plan document, I would avoid deviation from standard practice. What whould the plan have done if one of the three had terminated? I suspect that distribution would be prompt and then there would be a tail distribution of the 2014 allocation. The answer might be affected by the employer's decison to terminate the plan or not.

You should be able to transfer assets even if it is a different plan of a different employer. The vendor should do what the plan administrator directs the vendor to do. That does not mean the vendor will behave. It also sounds like the new set-up is confused, and perhaps mistaken. That spooked the vendor. You need someone who knows what she is talking about to evaluate what was done formally, what needs to be done under the circumstances, and communicate with the vendor.

While the ERISA side of plan status may be arguable, the tax regulations have no confusion concerning whether or not there is a plan, and there is a plan unless there is some fatal defect under the section 403(b) regulations, such as not having a plan document. While I offer no comment on the safe harbor question directly, I don't think the "new plan" theory is viable no matter how you dress it up with plan numbers.

Forfeiture is an acceptable approach, but I would not forfeit until distributions are mandatory, which does not include a provision that is triggered by simply losing touch with the participant. It would work with mandatory distribution of small balances, keeping in mind the mandatory rollover rules.

What caused the request for the document?

The plan must be operated in accordance with its terms. I doubt that correction of the operational failure by simply skipping one year and extending the installment period would be an acceptable correction.

Yes and not much. Administratvie burden increases. Edit: Sorry, big oversight. Usually you have a second section 415 limit so employer contributions can be greater than with a single plan. Most nonprofit organizations are not that generous. It can work for organizations that are not subject to discrimination rules.

Self-insured plan or group insurance contract?

You can do whatever you want in 457(b) plans, subject to contractual restraints. Contractual restraints are likely to restrict ability to make mid-year changes that diminish participant benefits. Whether anyone will assert a contract claim is another matter. Results may vary depending on whether or not the 457(b) plan is a government plan. I assume that your response to the question thrown your way will not be taken in any way as advice. Although many apply 401(k) principles to 403(b) plans, the rules can be different. A last day provision is not in itself improper. There is no basis for retroactive amendment under 403(b) as there is under 401.