Santo Gold

Lots of problems here. Any comments are appreciated: There is a 401(k) plan with a 6/30/09 plan year end. Safe harbor match contribution. In April, 2009, the employer decides he wants to stop the match. He never tells us (TPA). He claims he provided a 30 day notice stopping the match, but so far, he has not been able to give us a copy. I'm not sure where he would have gotten one from since we did not do one. Maybe the payroll company did one. (1) If he did provide proper notice, can he stop like that mid-May? Does the documetn need to be amended as well? If he did a notice but not an amendment (and one was needed) is the cessation valid or is the employer on the hook for the rest of the plan year? (2) Can he stop a safe harbor match in mid-year? Thanks

Found a previous discussion on this. Not sure I agree though http://benefitslink.com/boards/index.php?showtopic=31387

A participant does not have an account balance (never deferred and the only ER contributions are match contributions) and terminates employment. Participant would have been 0% vested in the ER contribution. Would you include this participant on line 7(h)? Thanks

If the employer froze the first plan (no more contributions allowed into Plan #1), started the second plan, and then 12 months go by, could the participants in plan #1, after 12 months, then take their money out as a distribution?

An employer has a 401k plan in place right not. They want to change investments and will do so. However, some of the employees do not want their existing money to go to the new investment platform. The employer would like to give them the option of taking their money out of the plan or moving it to the new investments. Because there is not a distributable event, this will not work. So another option that was presented was to start a second 401k plan. Terminate the first plan, start the second plan with identical provisions to the first plan. Now there is a distributable event so the participants can roll their money into the second plan or take it in cash or roll to an IRA. Thats what they want, but I know this won't work, just not sure why. Anything I can point to prove this won't work? Another option that I'm not sure about. What if they freeze instead of terminate the first plan, and start the second plan. but the second plan is written to not allow for transfers into it. Does that open up options on what to do with the money in the first plan? Thanks for any comments

Any comments are appreciated: A C-Corp has no employees, only the owner. She maintained a SIMPLE (assumed to be SIMPLE IRA) through 2008. She now wants to do a SEP in 2009. The company will cease to be in existence after 6/30/09. (1) I don't see a problem starting a SEP since she is not funding the SIMPLE in 2009 or later (2) Is there a permanence problem with her starting a new plan in 2009 and having it only be around for 6 months? (3) Her comp for 2009 will be around $150,000. Can she put in 25% of $150,000, or is the comp. limit pro-rated to $122,500, meaning she can only put in up to 25% of $122,500. Thanks

A safe harbor 401k plan had a 6 month 401(k) eligibility provision, but incorrectly applied a 2 year eligibility period on participants from getting the safe harbor contribution. They want to go back now and deposit safe harbor contributions for everyone they missed during these affected plan years. They would include lost earnings on these contributions correct?

I think I already know the answer is "no", but I'll ask anyways: Trustees want to switch to a new investment platform, but face significant surrender fees for doing so. Can they use the forfeiture account to pay these surrender fees? The plan document does allow for forfeitures to be used to pay fees. Thanks

Do you think this will fly? A non-profit currently sponsors a 401k PSP. They are having trouble with the 401(k) test. Should they consider amending the 401(k) provision out of the plan (making it a PS only plan), then start a non-ERISA 403(b) that accepts only 403(b) contributions? This would solve the 401(k) test, correct? Thanks

Is it required that catch-up contributions be matched in a safe harbor 401k plan? Thanks

If 2 platforms are offered, but only 1 used (small plan, only 5 people, and everyone went with "Platform A"), do you think that would satisfy this requirement?

Hoping someone can confirm: Is a non-profit 403b plan, that allows only for employee contributions and the ER has minimal involvement, considered a non-ERISA plan? If so, then a 5500 has not been required, is continues to not be required under the new 403b regs. Is that correct? Thanks

I researched a few other posts and understand that gap period earnings are no longer required. But could anyone clarify the following: 1) Is it required that Gap earnings be eliminated, or is it optional? 2) Does WRERA (enacted 12/23/08) eliminate Gap earnings on excess deferrals for plan years beginning in 2008 or 2009? 3) Does PPA eliminate Gap earnings on excess contributions/aggregate contributions for plan years beginning in 2008 4) We currently have in our final 401k/m amendment, and then as part of our 415 amendment, that gap earnings must be calc'd. Based on WRERA and PPA, does that mean we could not use Gap, and documetn that with an amendment at a later date? Thanks for any assistance

Thank you.

I think I already know the answer, but here goes: If a company sponsors a 401k plan and a separate profit sharing plan. Now it wants to terminate the 401k. Is the profit sharing plan, already in existence, considered a successor plan? Therefore, they cannot distribute the 401k accounts? Thanks

I believe I answered my own question. The transition rule applies to acquisitions. No mention is made of newly created subsidiaries. It would seem that subsidiaries would not be included in the transition rule because the potential would be there for abuse (i.e., having a bunch of NHCEs moved to the new company, not covering them for up to 2 years).

Mr. X owns 100% of two companies. Both companies participate in one 401(k) plan that has equal benefits for employees of both companies. There are a total of 15 employees between the two companies. Mr. X now is starting a 3rd business, in 2009, again he is the 100% owner. He would like to not have to provide retirement benefits for this group for a few years. There are to be 7 employees in this company, at least 1 will be an HCE. I know that when a business is acquired, there is a transition rule that allows for the acquired company's employees to be excluded from testing in the controlled group for up to 2 years. Does that same exemption apply to a newly created company? If so, does that mean that these employees of the new company would not count in the 410(b) test until 2011? Twist: It is expected that the seven employees of the new company will come from the employee pool of the other 2 companies. A tough sell for sure to any employees making that switch. But, does that change the above applicability of the transition rule? Would they still have until 2011 before counting them? Thanks

Any thoughts on how to terminate an ERISA 403(b) plan for an employer that is no longer in business? We have contact with the employer so it is not an orphan plan situation. The plan would still need to go through the process of adopting a plan document, terminating the plan, distribution instructions, etc., correct? Anything else? Thanks

They are a controlled group

Company A sponsors a 401(k) Plan. Company B is an adopting employer of this plan. Now, Company B wants to stop participating in the plan permanently. If they do drop out, are the Company B participants entitled to take distribution of their account balances? The plan is not being terminated, so probably not. But the Company B will no longer be an adopting employer: does that mean their participant account balances have to stay there? For a twist, what if its Company A that wants to get out? Do we have to re-do the document, showing Company B now as the plan sponsor, plan administrator, etc? Thanks

I was hoping someone could provide a brief 457 "101 - Basics" and then point me in the right direction for additional information. This is regarding an employer that I'm not really involved with: A (very) small business maintains both a 457(b) and 457(f) plans. Attorney drafted both documents and everything seems to be OK with that. What administrative services are needed for these plan on an ongoing basis? There are no 5500s needed. Any other filings that they should be making? These are non-qualified plans, so the usual 415 and 402(g) limits wouldn't apply correct? The plan covers only the owner, so there are no testing issues. Do they need a TPA at all for something like this? Thanks for any help.

But if the NRA is 55, why would we not have a qualified CODA? Same old 401(k) plan, just with an earlier NRA.

I have a participant/owner, who is approaching age 55. He plans to continue working for some time, but would like to get his money out of the plan sooner rather than later. The NRA is currently age 65. No hardship exists. He is fully vested. He is able to take most of his employer PS and match dollars out (24 month requirement), but he is still 4-1/2 years away from getting to his 401(k) and safe harbor contribution accounts. My understanding is that as long as he continues to work, he cannot take an in-service withdrawal of the 401k and safe habror until he hits 59-1/2. Is that correct? If so, could the plan be amended to reduce the NRA to age 55? And since he will be 55 soon, the plan does allow withdrawal of his entire account balance even if he continues to work after 55. Does this sound OK? Thanks

Profit Sharing plan has insurance policies in it. The policy's are "owned" by the plan and are held for certain individuals. The Plan is now terminating and the policies have surrendered for the cash surrender value. The insurance company then issued a 1099-R to the plan, for the surrender value of the policy (minus acculated PS-58 costs). Does this sound correct? What exactly should the plan do with this 1099-R, attach it to the 5500? The plan does not file a tax return or anything of that nature that an individual normally would. I'm not sure how the 1099-Rs for past PS-58 costs were handled (I suspect they were never issued, but thats another story). Any comments?

Thanks to all with the replies. My last question: If she takes the $1,000 out of the plan in cash and rolls the other $99,000, what 1099-R code would be used for the $1,000 non-taxable distribution? She is over 59-1/2. Would you just use code "7" and, show $1,000 as the gross distribution but $0.00 as taxable? Thanks