Kevin C

If you can re-amortize the loans, you can request that the loans not be taxed. But, EPCRS says you have to request it to get it. I just finished up a VCP filing that did so and they granted the request.

The DOL's Voluntary Fiduciary Correction Program may help. Is there any chance the property would be considered an illiquid investment? They have information on their website. http://www.dol.gov/ebsa/compliance_assistance.html#section8 How can I find out more about the Program? Interested parties may contact the appropriate EBSA regional office. Regional coordinators assigned to the Program will assist you with your questions. Information about the VFCP can also be obtained by calling EBSA's Toll-Free Hotline number at 1.866.444.EBSA (3272) and ask for the VFCP Coordinator. Even if VFCP won't help, they can help with corrections outside of the existing programs.

Select a suitable Qualified Default Investment Alternative and provide the proper notices and the Trustee won't have to worry about those who refuse to make an investment election.

I don't see anything wrong with the original rule. Advertisements and help wanted requests belong in the advertising sections of the site. The forum is free for us, but not for Dave. It's the advertising that keeps the site going.

Both of those addresses are in the 2010 Form 5500-EZ instructions, which has already been released. It doesn't look like the 5558 has been updated yet, so its instructions show the old address. I would hope that either address would work during a transition period. Or, you could send one to each address and really confuse them.

ASAP 11-21 shows Ogden, UT, 84201‐0045 as the address for filing Form 5558 and Ogden, UT 84201‐0020 as the address for filing Form 5500-EZ.

I think that is very strong evidence that the termination is "in connection with a transaction described in section 410(b)(6)©". That's a very good reason to delay the termination date until closer to the sale date. How long do they want their employees to not be covered by a plan? What happen if the sale gets put on hold? What happens if the deal doesn't go through? The last time we went through the sale of a client, they reached a tentative agreement and were within 2 weeks of the sale date when things imploded. Negotiations re-opened a few months later and they finally closed the deal almost a year later than originally planned. Fortunately, they wanted to terminate the existing plan immediately before the sale, so we delayed the termination until the deal was finalized.

Actually, the 401(k)/401(m) regulations have sections that list the requirements for a terminating plan to stay safe harbor for the final short year. If you qualify under (ii) you can still be safe harbor. The same rule is in 1.401(m)-3(f)(4). I don't see anything that defines what is considered to be "in connection with a transaction described in section 410(b)(6)©". Was terminating the 401(k) required by the purchaser as part of the sale? In your case, with the last minute change in the sale date, I think you have a very strong argument that the termination is "in connection with a transaction described in section 410(b)(6)©" even if the termination is a month before the actual sale date.

How do plan provisions that require four years of service before receiving a contribution avoid being considered to have the effect of imposing a four year of service requirement for eligibility?

And, if the employer holds the plan assets for an extended period before paying the distributions or depositing the withholding, I think you have PT issues to deal with. I get nervous if it sits in the employer account for more than a couple of days before the checks are issued. I certainly wouldn't want it to sit in the employer account for months.

I don't recall them ever asking for documentation or proof of when the form was mailed. Have you had them ask for proof?

Does the letter say what to do if the form was already filed? The letters I've seen like that usually say if the form was filed, then send them a new signed copy of the return and tell them when it was filed. That is basically ATA's option 2, but I wouldn't necessarily assume it wasn't mailed just because it isn't in the system. We've had them lose filings where the client sent it with a return receipt and received the receipt showing it was delivered.

I tell clients the IRS regulations say you can't prefund deferrals or match. The match prefunding rule is in 1.401(m)-1(a)(2)(iii).

Yes, you can eliminate hardship distributions from an ERISA covered 403(b). The section 411(d)(6) regulations also apply under ERISA. From the preamble to the final 411(d)(6) regulations published 8/9/2006:

The July 29, 2011 IRS Phone forum covers ethics. Anyone need a free ethics CPE credit? http://www.irs.gov/retirement/article/0,,id=218995,00.html

In my experience with DOL audits, the standard varies by investigator. We had one who insisted that if the deposit wasn't done the same day as the pay date, it was late. We had another investigator who prepared a spreadsheet on 18 months of deposits with the pay dates and the dates the deposits showed up in the account. They were mailing checks at the time. He calculated the average time and said any payroll that took longer than the average was late. We eventually got both of them to back down, but it was a royal pain. We've had others that took a more reasonable approach from the beginning. In your case, I think the special payroll amounts being deposited two weeks after the pay date would be a problem.

Andy, What about timing issues under 1.401(a)(4)-5? Your example sounds pretty close to example 2.

There is a write-up from the June 2, 2011 ERPA conference in the News section today that addresses CPE credit in the initial year. http://www.mhco.com/Library/Articles/2011/...sed_061411.html

It will depend on how the amendment fits into the document. If the amendment can be done within the options available in the document, you would still have reliance on the opinion letter. So, if the amendment can be done using an "other" line in the adoption agreement without having to submit for a determination letter, you should be ok. The adoption agreement will tell you if the use of a certain option requires submitting for a letter. But, if for example, you had to add some extra language to the adoption agreement to make the amendment fit, then you lose reliance on the opinion letter. The conditions for employer reliance on the opinion letter are in Rev. Proc 2005-16, Section 19.

Take a look at Section 6.05 of Rev. Proc. 2008-50. If you are concerned that the adoption of an amendment to a pre-approved plan won't be considered as correcting by the adoption of a pre-approved plan, you can restate the document.

They are still sending out denial letters for timely filed extensions. One of our clients received a letter yesterday saying the extension for their pye 9/30/2010 that we filed on 4/18 was filed late. I had the client sign a 2848 and I called the IRS. When I finally got a live person and faxed the 2848, the agent looked up their account and immediately said the letter was sent in error. They will send a corrected letter in 10-14 business days. I guess I should be happy it only took an hour to take care of this. What a pain in the ...

If you can correct under either the code or regulations, I read Section 6.08 of Rev. Proc. 2008-50 as saying you can't use EPCRS.

If the employer is considered publicly traded, keep in mind the PPA diversification requirements that apply to a KSOP, but not a stand alone ESOP.

I think you are right, they made a mistake. The rule cited in the correction section says: The missed deferral from the initial calculation is $13,000 and the reduction is $3,000, so the missed deferals become $10,000 ($13,000 - $3,000).

http://benefitslink.com/boards/index.php?showtopic=45536 Is this the thread you're looking for?