Kevin C

I think it would depend on why he went out of business. If it was due to financial problems with the business, it could be a substantial business hardship. If he shut it down because he decided to retire, it wouldn't be. Any chance he sold the assets of the company when he shut it down? If so, it could be in connection with a 410(b)(6)© transaction.

I advise clients to keep all plan documents and DLs, regardless of how old. We have a client with a plan that goes back to the 1940's. They get a benefit inquiry every couple of years from someone who terminated 10-30 years ago. I was responding to a comment about needing to include old documents in a future DL request.

The DOL can only get involved with a 403(b) plan if it is ERISA covered. The easiest way to tell if it is ERISA covered is to look for their 5500 filing on the DOL website. If it is ERISA covered, they are required to file a 5500. http://www.efast.dol.gov/portal/app/dissem...?execution=e1s1 It doesn't cost anything to contact the DOL or IRS. They may or may not be helpful. We've had clients who received phone calls from the government trying to resolve participant complaints. Sometimes, complaints even lead to plan audits. You really need to get a copy of the plan's loan rules. Have your client request a copy. If they didn't follow the rules, they may have a problem. Following the plan's loan provisions is one of the requirements for the prohibited transaction exemption that applies to participant loans.

You won't be able to tell if the loan was handled improperly unless you have a copy of the plan's loan rules. It may be part of the plan document or it may be a separate loan procedure. Does the employer even have anything to do with the loans? Since you mention a trustee, it's likely a vendor handled the loan. The good news in all this may be that if he is eligible for a distribution, the loan distribution or offset is an eligible rollover distribution (1.402©-2, Q&A 9). If the plan's loan rules have the loan being offset at 3/1/2012, you may still have a chance at a 60 day rollover. Are you sure it was March 1 and not March 31? The cure period typically ends at the end of a calendar quarter.

The IRS is changing how far back they will go with DL requests for pre-approved documents. This came up at the IRS Q&A session at the ASPPA annual conference last year. The speaker said a quality assurance bulletin was issued on the matter. The QAB starts with: Here is the link. http://www.irs.gov/pub/irs-tege/qab_102411.pdf I agree with the comments on the limited benefits for filing Form 5310 with a pre-approved document. The only ones we have filed in the last few years have been in acquisition situtations where the purchaser insisted it be filed.

The answer is No for both. 1.411(a)-4(a) has the definition of nonforfeitable. " ... if at that time and thereafter, it is an unconditional right." sounds like once vested - always vested to me. A possible future loss of vesting rights would also cause the current benefit to fail to be nonforfeitable as required by 411(a).

I don't think so. The course has to be sponsored by an approved ERPA CE provider. There is a link to a list of approved providers on this page. http://www.irs.gov/retirement/article/0,,id=208311,00.html

Thank you!!!!!

No, they are not top heavy. We ran ABT this morning and unfortunately, they fail. I'll take a look at component testing. All but one of the HCE's are in the .06% plan. It looks like another $800 to the .06% plan will equalize the contributions between the two plans.

Try again. It works for me this morning.

Thanks. One plan ended up with a PS allocation of .07% of comp integrated and the other .06%.

It's Friday afternoon and this one is giving me a headache. Two 401(k) plans of the same employer need to be aggregated to pass 410(b). Both plans have identical integrated PS allocation formulas. For 2011, the only PS contributions were small amounts resulting from the client depositing slightly more than the SH match during the year. The % PS allocation is slightly higher in one plan than in the other. Is general testing required? B,R,F?

Why not Roth?

Sorry Tom, the excise tax applies unless the excess is distributed timely. Maybe if the investment house gets to pay the excise tax and your fees for preparing the 5330, they will follow instructions next time.

IMO both of your proposed actions are the same as the situation in TAM 9735001. http://benefitslink.com/src/irs/tam9735001.html

I see several problems. 1. Standardized prototypes are required to use 401(a)(4) safe harbor allocation methods. That means no cross testing. 2. I'm assuming your 2011 year has already ended, so refer to TAM 9735001 addressing 411(d)(6) violations that would be caused by a retroactive formula change made after the end of the plan year. 3. -11(g)(3)(ii) requires that benefits as determined under the prior plan terms not be reduced by the amendment. 4. Even if you could overlay a new comp allocation on top of the existing salary proportional allocation, -11(g)(3)(V)(A) requires that the accruals under the amendment separately satisfy 401(a)(4).

If you read through Rev. Proc. 2008-50 and look up all the cites used in defining "interim amendments or amendments required to implement optional law changes, as described in section 6.05(3)(a)", I think you will find that is says you qualify for the $375 submission. Will you get it processed for $375? Maybe, but maybe not. I've heard varying descriptions from IRS personel about when they think the $375 fee applies. My suggestion is that if you think the $375 fee applies, file that way. But, let your client know that if the IRS disagrees, they will ask for more money. If you are using Form 8905 to get the 6 year amendment cycle, I think you have to restate using a current pre-approved document by 4/30/2012.

Does the plan's amendment procedure require more than one signature on an amendment?

To qualify for the 6 year amendment cycle, they had to either 1) adopt a pre-approved (or interim pre-approved) document by 1/31/2009 or 2) sign Form 8905 by 1/31/2009. Section 17 of Rev. Proc 2007-44 has the rules for being eligible for the 6 year restatement cycle. Although, in your case if this is a DC plan, Section 17.04(2) would apply and it says they should have adopted a newly pre-approved document by 1/31/2009.

Since the 5558 filing was due by 1/31/2012, wouldn't the due date be the date listed on the 5558? The IRS should approve a 5558 filing with 4/17/2012 listed, but they will also approve it if you request an earlier deadline.

I don't. 6.02(4)(a) says corrective allocations are adjusted for investment gains. To me, that means the term "corrective allocation" includes the lost income.

With a missed profit sharing contribution, you should be able to do that since the plan says forfeitures reduce employer contributions.

I would say a letter from the DOL makes the Plan Administrator ineligible for DFVC. I don't see anything limiting that to only the plan year mentioned in the DOL letter. The final rule says: It's been several years since I've seen a DOL letter about a failure to file timely.

K2, Can you elaborate on how you have those plans set up in Relius? We've had to code them as "retired" in Relius, too. Another thing to watch out for is anyone who terminated on the last day of the plan year.

I think the "passable language" part is where you will have problems. Have you compared the good faith interim amendments to the appropriate cumulative list to make sure sure all the necessary items are covered? Of course, without either submitting for a determination letter or using a pre-approved document, you won't know for sure if the IRS would consider the included language to be sufficient. I've only done a few non-amender VCP filings for plans we've picked up that did not maintain their documents properly. Luckily, the VCP filing fees were fairly small. In those cases, it was an easy decision to file under VCP.