QDROphile

I stand by my comments from the perspective of a plan adminstrator and what was in the post. As an ERISA attorney, you understand that the primary function of an advisor is to solve client problems, not to come up with accademic answers. The plan admnistrator has a problem and a standard. The problem is to determine an interest rate. The standard is what a commercial lender would charge. If that is where the question is coming from, a conclusion by the bank that there is no comparable loan in the lender's normal universe is unhelpful.and all of the efforts and technical work that went into the conclusion were narrow and formalistic. I might concede "facile," but the effort missed the point and failed to do the job insofar as you described it. You did not say in your descriptions what you said in your last sentence, "we justified *** use [of] *** rates of prime plus." That is the point and that was useful, assuming that the "we" is the bank. It meant that a commercial lender had determined a rate that was reasonable to charge for a plan loan. A plan adminstrator can use that conclusion to meet the standard. If the "we" is the plan administrator, you did a fine job and made the most of inadequate service from the bank. Also, If the question came from another angle or had another purpose, then the effort may have been brilliant and herioc. In fact, I agree with the academic conclusion. A plan loan as usually provided under 401(k) plan is an artificial anomaly that the the regulations try to dress up with some conventionality, with resulting illusions, confusion, and contradictions.

Perhaps I am misinterpreting. If the request was, "I am trying to determine how to set a plan loan rate and the ERISA standard is the rate a commercial elnder would charge for a loan like the plan loan," Key Bank gave a facile, narrow, formalistic answer that did not help to achieve the goal of setting an interest rate. The facile, narrow, formalistic answer could have been a legitimate prelude, accompanied by some laughter, followed by a serious answer about what interest rate should be used. If the question was, "What would be the interest rate on a commercial loan that has exactly the characteristics of a plan loan?'" maybe you got a helpful answer. In any event you felt like it was helpful. So what did you then do about interest rates with all that help? You did not have an interest rate that you could defend by saying that in fact you had consulted with a commercial lender.

If it is a defined contribution type plan. A SERP that is a defined benefit type plan operates under different rules.

I can see that Key Bank was helpful with a decision not to have plan loans (whixh is not a bad thing), but I don't see any help with determining rates.

You are gettng confused information about "risk of forfeture" under sections 3121 and 409A : " there must be a substantial risk of forfeiture to qualify under 409A" is not true. For FICA withholding purposes, look to 3121 and forget about 409A unless you are somehow responsible for compliance issues under section 409A. Section 409A relates to income taxes. The two can interact, but don't start there.

Keybank was not being very helpful -- this is not a question to which there is no answer or only a negative answer.. The trick is to find a a helpful commercial lender and get support. Some lenders will provide a methodology for determinining a rate based on puublicly available information so the plan administrator is able to keep up with changing interest rate without having to consult the lender each time. The pan administrator wll have to check with the lender from time to time to make sure that the lender continues to support the methodology. When the regulators ask, the plan can give a compliant answer. An open question is whether or not a multiple-lender survey is expected, but I think an agency will back off if the plan can show support from a lender on the rate.

Isn't it a shock when the law is actually enforced in accordance with its terms rather than according to deeply entrenched industry practices? What part of the "prior informal guidance" justified use of P+2%? Did you consult with a commericial to see if similar loans would issue at that rate? Your links both go to the same document, but the text suggests you are comparing doucments. I reacall informal IRS guidance from long ago that stated that neither P+1 nor P+2 would necessarily be correct.

Every other dictionary should have about the same definition. The word is available to everyone. It tends to be used mostly in legal contexts because of the concern for correct understanding of legal status in relationships as oppsed to appearances. In any event, defining uncommon words is a service. Thank you for the effort.

What are the implications of value reported on Form 5500? In other words, what does it matter what is reported for the FMV? There are circumstances where a proper valuation is necessary, such as for prohibited transaction exemptions and reporting of distirbutions.

Those with accounts over $5000 can be required to take a distribution of the entire account unless keeping the account has become a protected benefit. Plan terms rule, but they have to be drafted carefully and consistently. You handle it just like any mnadatory distribtuion. Figure out the timing (e.g minimum 30 days for the rollver notice) and what you will do and develop appropriate appropriate dsiclosures, and then adopt a policy and follow it. Start early enoght that the distribution will be made by the RMD deadline. You will have different considerations depending on if you are sure you have contacrt with the individual or not. If the plan has ever been a prototype, it is likely that maintaining the account is a protected benefit, at least with respect to amounts accrued before plan terms changed to require full distribution.

Approval of a hardship distribution is a fiduciary function if it involves anything but ministerial execution. As a TPA you should be very senstive about the nature of the services you provide.

At least until the Supreme Court issues its ruling (any day now), DOMA currently recognizes only only one man and one woman as spouses. Start with the spouse on file and resolve that issue. Then you would look to ancillary information, such as the person identified for other purposes, such as the health plan.

My point is that employer HSA contributions are not likely to be in a plan's definition of "W-2 compensation" in terms used by the original post and they are certainly not within most everyones' understanding "gross wages" as used in the original post. To put it another way, the auditors are probably correct.

Discretion on the part of plan adminstrator over distribution amounts and timing is problematic, so the plan adminstrator should not have discretion over the loan term. The loan term can be limited to less than the statutory maximum under plan terms or loan policies that are the equivalent of plan terms.

Is Box 12 considered compensation for retirement plan purposes?

I would explore a bit what the particpant is "being told" just as I would explore the details of a lender's notice that a payment has been missed on the mortgage loan and the default makes the property is subject to foreclosure. Often such notices do not mean the action is imminent. I agree that the circumstances fall into the safe harbor category for reason for withdrawal.

Do you think that HSA contributions are "pre-tax deductions"? First, I never trust the term "pre-tax" because it does not have a precise meaning. But my notion of pre-tax deduction as commonly used is along the lines of elective deferrals under 401(k) and salary reduction under 125, not employer provision of nontaxable benefits under section 105 (except to the extent provided under 125). The auditor apparently believes that employer HSA contributions (not through section 125) are not W-2 compensation (do we all agree on that?) and not "pre-tax deductions". Hence my question, what is a "pre-tax deduction"?

See ERISA sections 201 and 4(b).

Put your reading glasses on again. If the plan terms follow the language of the statute, the participants will direct the trustee to vote only with respect to matters that are submitted to the trustee (as a shareholder) for a vote. If state law and the corporate documents allow voting by written consent and the non-ESOP shareholders have enough votes to carry the day without involving the ESOP, the ESOP's vote might not be solicited. If no vote by the ESOP, no instructions on how to vote by the participants. The corporate law side of the question is determinative unless the ESOP has some contractual right to vote even in circumstances that do not otherwise entitle the ESOP to vote. The contractual right could be in the plan document, but extraordinary shareholder rights are usually in a shareholder agreement. If the ESOP trustee is not included in the voting, the ESOP trustee had better know why and agree. Voting rights are assets of the ESOP and the trustee or other fiduciary is charged with managing them properly and in accordance with plan terms.

Shame on the plan's lawyer for many reasons, including being the architect and drafter of the domestic relations order (grade in fiduciary considerations: F)and apparently not giving any consideration to the issues behind blithely substituting the life of one survivor annuitant for another (grade in actuarial considerations: F). Grade in understanding the law in the applicable federal circuit at the time: F. I am a bit more sympathetic on the last point because I thought the Fourth and Fifth Circuits were wrong until the Ninth Circuit declared the winner between QDRO law and QJSA law.

Time to explain the facts of life to the participant. All of the expenses of maintining the plan will be borne by the plan and charged to participant accounts. Give the participant the numbers to do the math -- $$ of expenses, one account. And wouldn't it be a good idea to have an audit of the plan each year just to make sure everything was being managed properly? Maybe an institutional trustee and fiduciary would be a good idea since the sponsor really wants to have as much distance from the plan as possible. A more compassionate approach would be to transfer the benefit to another plan maintained by the employer, but still charge the account for identifiable expenses that go with the greate complexity of maintaining the acount in a different environment. You did not say there is another plan.

I would really love to know what the thinking is behind the proposition. I can clearly understand many points that got no thought -- primarily the point correctly made by 401king. However, the match is not a solution, even if the plan is a safe design plan harbor plan. Safe harbor design plans are also the product of not enough thought, both in the option itself and in the adoption by the plan sponsor. However, adoption of the safe harbor design is not as cynical as the proposition about modification of compensation.

In other words, there are no 457(b) plan funds to invest. It is the employer's money to do with as the employer is allowed.

Assuming the plan is not an ESOP, the lump sum status is probably a red herring. You should be more interested if a distribution is an eligible rollver distribution. The law about rollovers has changed from focus on the lump sum concept. The plan should be concerned about refusing to distribute when a participant is entitled. Appropriate plan terms might help, but they would be unusual and they would probably not work for someone who is past retirement age.

The plan may need to be amended depending on what it says about investments. A plan must be operated in accordance with its terms.