AlbanyConsultant

The instructions for the 8955-SSA say: How can I tell if a gov't plan is subject to ERISA 203? I'd assumed that every plan was until I read this. The section itself doesn't describe who is or isn't subject to it.

I've found several threads here that are close to what I'm trying to figure out, but maybe I'm just not able to translate them to my situation... Non-5% owner participant in a calendar-year plan will attain age 70.5 in August 2013. The participant terminated in March 2013, and is requesting a full rollover distribution (immediate distributions are allowed by the plan) to an IRA. Taking a conservative approach, I reasoned that the termination made 2013 the first distribution calendar year, with a RBD of 4/1/14 but payable anytime in 2013 based on the 12/31/12 account balance, so the plan should pay the 2013 RMD in cash and roll the remainder to the IRA. The recordkeeping platform rejected this, claiming that the RMD can't be paid until the participant actually attains age 70.5. They further claimed that the participant should take their 12/31/12 statement to the rollover institution and make them pay out the 2013 RMD. Am I being too conservative here? I'm not getting any clarity from Reg 1.401(a)(9)-7 or 1.402©-2, either... Thanks.

This plan has monthly entry after satisfying one Year of Service and uses DOP comp. We've always just asked for compensation from the entry date and not asked for detail on it. This year, their new bookkeeper is questioning what compensation is correct. They have two payroll cycles: weekly and monthly. She believes that DOP comp should be counted based on the check date (i.e., when it would otherwise be available to the participant)... which would make the March monthly payroll, where the check will be dated 4/2, eligible for someone whose entry date is 4/1. But that means that there is one month of eligible compensation on which the new participant didn't get to defer. That doesn't seem like something the IRS would approve of. It's less of a big deal on the weekly payroll because it's s shorter timeframe, but the issue is still there. I asked her that if she thinks you have to go back and include the prior month, should she allow deferrals on that (in this case, March) pay... and if so, what if the employee terminates on 3/28 (before they are technically eligible)? Mind... blown. Is there a bright-line rule on this? EOB was uncharacteristically unhelpful. Thanks.

I have a client who wants to terminate their 401(k) and start a SIMPLE 401(k). There have been no employee deferrals to the 401(k) plan this year, but the two outstanding loans have continued to be repaid. Does that violate the rule about not "benefitting" under another plan this year? Thanks.

I should be getting H's info any day, but I'm led to believe that their deferrals are pitiful; I'm concerned that it could weigh down the NHCE ADP of G, so I'd prefer to test separately. G is likely going to fail on it's own, true, but it will be worse with ~20 more NHCES (from H) who don't defer. Not to be dense, but the way this works is how? Because there are two plans with equivalend BRF, I can disaggregate them for coverage testing, and therefore can disaggregate them for ADP testing? Whereas if I aggregated them for coverage, I'd have to aggregate them for ADP?

It's the second plan that is messing with my head... I think the 36% is what I get when I do the combined test without the union for G's plan: NHCE (excluding union) 19 G NHCEs in total 3 G NHCEs that don't benefit (per plan exclusion, the "per diem" ee's), included in the 19 25 H NHCEs (none of whom benefit under G's plan) So that's 16/44 = 36% for the NHCEs, compared to 3/3 = 100% for the HCEs, if I'm testing from G's point of view. Or can I disaggregate* somehow? Because G would pass on it's own ([16/19] / [3/3] = 84%) and H passes on it's own (no HCEs). There is no profit sharing (or reallocation of forfeitures), and the plans have identical entry (or so I'm told... I'm still getting data from H because we don't do that plan). The only difference is that H has a match, which I think is OK for testing purposes. * for both coverage and ADP Mike Preston, you said that you don't see there being an issue on the deferral side... is that because they both are getting a deferral opportunity?

Took over a plan this year, and I'm drawing a blank on where the problem is... or is there one? G and H are a controlled group, and each has their own 401(k) plan. G: 118 participants that can't be segregated via statutory exclusion, of which 96 are union (included in the plan), has 3 HCEs (all non-union), and also an exclusion for "per diem" employees (14 of which are union (included in the 96), and 3 are non-union) H: 25 participants, no union, no HCEs, also has a match provision Clearly, there's no issue with the coverage for the match. For the deferrals, after pulling out the union employees in G's plan I'm coming up with benefitting 16 NHCEs (118 total - 96 union - 3 HCE - 3 "per diem") out of 44 NHCEs (the 16 benefitting + 25 from H + 3 "per diem") = 36%. And of course all three HCEs benefit. From here, I'm not sure what to do next. It seems I've found things that point in several different directions, so I'm just spinning my wheels. Any thoughts? Thanks.

Just to follow-up... This sounded so strange that I eventually got a manager at said brokerage firm. He said that the person who told me that had no idea what he was talking about, usually makes things up instead of finding out the right answers, and shouldn't be trusted. They handle all tax reporting (in a manner much more reasonable than I was originally told). Sounds like a valued employee, right?

I took over a plan last summer with assets in self-directed brokerage accounts. This week, the broker confirmed that his firm does the 1099-R... and they also did the tax withholding. I expected that meant they did it like a mutual fund product and used their own TIN, but no, they deposited it (presmably electronically) by using the participant's SSN. So that already sounds... odd. I asked them to confirm, and they admitted that the 1099-R they will prepare will have the SSN as both the payer and the payee. They are saying that they do it that way for a bunch of plans and think it's OK so they insist on not issuing it, even over my objections. I pushed further and asked him to confirm that they are doing the 945. "Nope." So besides the dropped ball problem, does this mean that someone (read: me) has to prepare a 945 for the employee? Doesn't that seem strange? Has anyone else seen this kind of thing?

I would love for the RE to be sold, but the PT rules get in the way of that unless he sells it to a third-party (which he clearly doesn't want to do).

I've got a one-person plan that holds real estate (and has for a while - let's assume that it got into the plan OK). The owner/participant needs to take an RMD, and his attorney wants to know if he can take a portion of the ownership as the RMD. I'd still issue a 1099-R, but there would be no cash moved (so the owner would have to come up with the taxes from his own pocket). On the face of it, I said "PT". But then I thought it further out - what if the plan terminated? Would the entire distribution be a PT? If not, then there must be some kind of mechanism to get this out of the plan. Is this actually permissible? If not, what recourse does this sponsor have? Thanks.

Just completing my personal first gov't plan year-end. I know there's no 5500 required, but what about an SAR? Since that's a summary of the information on the 5500, my gut says to not prepare one, but the overly-sensitive-to-ten-million-disclosure-notices side of me shudders at the thought that these participants aren't getting anything that summarizes the plan in whole (and worse, it's a pooled profit sharing plan). Who is right - my gut or my paranoia? Thanks.

I'm taking over a plan for a new client, and the prior TPA said that the plan has a class-based allocation, but they make monthly deposits and don't require cross testing. This is new to me. I would have thought that you'd have to test each deposit. The goal of the class-based allocation is to give a standard allocation but only to certain groups of people; is it because the allocation is standard (but it isn't) that we don't have to actually cross-test? Or could I have just heard him wrong? Thanks.

Is anyone still doing anything on this? I remember back when PPA first came out (you know, when we thought we'd actually get real guidance within 12 months), many TPAs took the position that as a good faith statement, we'd provide the asset listing of a pooled account (or a copy of the account statement), and my firm did, too. Now it's five years later, and we're still attaching asset lists, and clients are starting to question it (because they have short memories). A quick survey of TPAs today revealed that almost none were still doing this. In fact, one mentioned that it was brought up at a recent conference, and Steve Forbes thought it was unnecessary. Thoughts?

Can't get this straight - when is the first annual notice due for a plan that would start effective 8/20/12? And is that different than having the plan start on 9/1/12? Thanks!

Maybe because it's Friday, but I can't nail this down: I've got a plan that we have just determined failed the 2010 ADP test. I know that they have to refund and then allocate a QNEC for the same amount. How do the earnings fit into this? 1. Are earnings on the refunds calculated through the end of the 2011 plan year, or throught a reasonable estimate of the date of distribution? 2. Is the allocation equivalent to the base amount, or are the earnings also counted? Thanks!

The plan sponsor of a plan with a safe harbor match has gone out of business suddenly, and only after the fact called to tell me that he needs to terminate his plan. He understands that he has to fund the safe harbor match through the final payroll, but will fail ADP if he has to test. "Going out of business" isn't technically one of the reasons to have a short plan year for a safe harbor match so far as I can see... but it has to sort of fall under there, doesn't it?

What kind of disclosures need to be provided for whole life insurance policies? I've not been able to find anything concrete. Thanks.

It's a Vermont entity, and they say this all checks out.

I'm taking over a governmental 401(k) plan where the former TPA was a bank who also served as trustee. Now they need a new trustee, and they want the document to read that the "Board of Commissioners" is the trustee. Is that specific enough? Especially as it would related to information on the SPD an an SS-4 application (well, I know it's not specific enough for that!). Thx.

Our client was purchased by a Canadian company ("CC") who re-incorporated the US company ("USC") as a subsidiary and terminated USC's PS plan. Now they are starting a 401(k) plan for USC. Is there an issue with the owners of CC wanting to be Trustees of the plan? Do they not count as falling under US jurisdiction, even if the plan assets are with a platform such as American Funds Recordkeeper Direct?

I've got a client who is currently matching at 50% of the first 15% deferred, and he's tired of failing the ADP test. He'd like to put in a safe harbor match... but not change his match formula. The idea: 100% on the first 4%, then on top of that match so that it would be at the level the old match was. Examples: Defer 3%, get 3%. Defer 7%, get 4 (because the "old match" would be 3.5%, which is under the safe harbor 4%). Defer 11%, get 5.5% (4% safe harbor + 1.5% additional match). In effect, this would be an increase in match for anyone who deferred less than 8%. Can this be done? I presume that if it can, then you'd... test the "additional match" piece under ACP, but the deferrals would still get the SH benefit?

Here's the situation I was presented: HR Manager ("D") wants to use his self-directed brokerage account in the 401(k)/profit sharing plan to purchase "between 5% and 10%" of his company's stock. Company is an S-Corp, and the company president (and plan trustee) is currently the 100% owner. Owner is making this available to D because he needs to generate cash to put back into the business, but he does not want to make this available to all participants. I've read a bunch of the threads here about the problems of S-Corps doing this kind of thing; it sounds like this would be a prohibited transaction. Is there any way it wouldn't be? I mentioned that if they're so cash-strapped, how are they going to pay for a valuation of the company to determine fair-market value? That didn't thrill them. Even if we get past that (and that's a big "if", I know), then it looks like we run into a discrimination issue, as D is getting the opportunity to make an investment that the other participants are not, and because he's buying more than 5%, it's an HCE/NHCE issue. Would limiting D to purchaing only 5.00000% take the sting out of it? Are there any other issues I'm not addressing? I'm not looking to give them an iron-clad legal response - I'm willing to refer them to an ERISA attorney for a final answer, but I'd like to prepare them for what the issues are and what they can expect. Thanks.

I know this can't be a unique situation, but I've (luckily) never had to get involved in it before... Small private school has a 6/30 plan year end for their 403(b) and profit sharing plans. The eligible teachers are under contracts that run from 7/1 - 6/30 (matching the plan year), but pay doesn't start until they start "work" ~9/1. The teachers have the option of taking their contractual pay over 10 months (9/1 - 6/30) or 12 months (9/1 - 8/31). The school has used this contracted compensation amount as compensation for the plan year all along, claiming that because they accrue the pay back to 6/30 for those who elect to receive it in July and August, this is OK. Hmmm. I'm concerned about things like "constructive receipt" and timing of deferral deposits and when partcipants can make elections on their compensation. If we count this compensation in the previous plan year, do we just end up carrying the deferral deposits made in July and August as receivables? Can a participant elect to stop deferring on August 1? This must all work out somehow, because I'm sure most schools do this kind of thing. Right?

Sure, it's obvious when you put it that way... Thanks, rcline46.