QDROphile

Treas. Reg. section 1.411(a)-11(e)

Perhaps the most civilized and practical thing to do is amend retroactively to provide for a true-up.

You are correct that an eligibility definition based on measure of service or a proxy for measure of service could be a problem under section 410(a) even if the excluded group does not cause failure under section 410(b).

The plan cannot require SSN or date of birth as a qualification requirement, so a mistake is not relevant to qualification unless it calls into question the identity of the participant or alternate payee, which is exteremely unlikely with a difference if a digit. The plan can require a SSN as a condition of distribution because the plan has to report. The plan can require a date of birth if needed to compute a benefit (defined benefit plan) or to comply with required distribution rules (really lame if the QDRO is administered correctly). The plan should not require that the SSN or date of birth be provided in the order.

You are so optimistic about the capability and performance of drafters.

Review of a domestic relations order might be interesting under those circumstances. Which plan does the order "clearly specify"?

The plan may have a blackout period in connection with the change of investment provider; appropriate advance notice will be required. The restatement need not be effective as of the pror January 1 (or other first day of plan year). Care shoud be taken either way to be sure the plan operates in accordance with its terms. Are you serious about the scope of allowable investments? If the plan is open to so much trouble, one might think it would indulge in a custom document.

A 403(b) plan of a section 3121(w)(3)(A) or section 3121(w)(3)(B) organization is exempt from all 403(b) discrimination rules. Is the exemption from the rules listed in Treas. Reg. section 1.403(b)-5(a)(1) -- borrowed from the qualfied plan rules -- also conditioned on being a section 3121(w)(3)(A) or section 3121(w)(3)(B) organization or is there room for exemption from the -5(a)(1) rules based on the section 414(e) church plan standards? For exemple, a non-electing church plan under section 414(e) that is not the plan of a section 3121(w)(3)(A) or section 3121(w)(3)(B) organization would not be subject to by the current provisions of section 410(b) if the plan were a qualified plan. If the same organization had a section 403(b) plan, would it be subject to the post-ERISA section 410(b) standards?

What are you doing about spouse consent?

Section 72(t)(2)© is up for interpretation, but I think the intent is that the 10% additional tax does not apply. No comment on the specific code for the form.

I don't know how an "Asset Management Fee" works. First, some expenses cannot be paid by an employer. The IRS ruled that comissions on stock sales could not be paid by the employer because commissions were inseparable from the price of the stock. Second, procedural and timing issues can affect the viability of employer payment of expenses. As suggested by BG5150, expenses that are separately billed and paid directly by the employer are the best circumstances. Long delays are not good circumstances no matter if the employer agrees up front to pay and then reimburses late or defers the decison to reimburse until some time after the expense is actually covered. I agree that a contribution cannot be allocated to a participant who is not eligible for contributions and participants who are former employees will not be eligible for a plan year after the year of termination.

An employer can make a discretionary contribution on whatever basis the employer chooses, as long as the plan allows a discretionary contributions, the contribution does not run afoul of applicable limts, and the contribution is allocated in accordance with plan terms. The employer could use the average daily temperature as a guide. Are you asking if the expenses can be paid by the employer though reimbusement of expenses paid by the plan, which, among other things, would change the allocation to participants as compared with a contribution of the same amount?

I disagree. ABC employees have no service in the XYZ controlled group, which maintains the plan, until the acquisition. They can be given prior service credit, but it is not required.

Please explain more about termination of the trust. Why does it need to be terminated in connection with the amendments that would be done to have it serve as the trust for a single plan and file a single Form 5500? If you don't get some pretty good answers from the trustee, you should consider changing the trustee in the process of amending the trust document to serve the current needs. Changing the trustee does not terminate the trust, either.

Do you have a reason not to clean up documentation, simplify, and file a single Form 5500 with the one plan?

How high is up?

Plan terms control. Most plans do not allow a distribution on account of termination of employment if the employee is rehired before the actual distribution.

Use such terminology if you don't care about the outcome. Any plan adminstrator worth its salt would not allow the term.

I believe that after the new section 403(b) regulations there is no such thing as a non-ERISA 403(b) plan, nothwithstanding the disingenuous rationalizations by the Department of Labor in its field assistance bulletin. The most we can get from the FAB is that the DOL is not looking to expand its scope to pick up new plans -- it is not looking for more work or more trouble. That does not mean that the plans are not subject to ERISA. The categorical exceptions still apply: governmental and church plans, for example..

The ESOP document should explicitly describe the automatic put rather than implement it implicitly. The cash can be directly rollover over. I can't remember the details of the IRS letter ruling on the subject, which may have been about an S corporation, but the IRS reviewers don't have any problem with the shortcut when a cash distribution can be required. Note that the determination letter does not cover the the rollover.

Why should the plan admnistrator undertake any risk in this matter by departing from conventional interpretations and arrangements?

Craft some class description that fits the participant and is exclusive and provide that participants within the description that are not HCEs will receive an allocation based on a different standard than 1000 hours. The allocation will have to be crafted to deliver whatever you believe the required benefit to be. You might limit the duration of the provision to suit the present circumstances and then be ineffective.

Too vague for my taste. Also, I don't like letting other laws infiltrate the plan document.

If the employee in not highly compensated, amend the plan to provide the benefit to her if that is what is desired to comply with Canadian employment law.

There are no well drafted prototype plan documents. It is almost a logical impossibility.