AlbanyConsultant

I wasn't sure what to call them initially; I started with 414(n) because it seemed like a good starting place. But I think you've made it clear that they aren't "leased" at all. Thanks to all - I've dumped this all back on the client's lap and recommended they hire an ERISA attny to sort this out - we can write the doc to fit however the attny calls it.

Over the weekend, I found Derrin Watson's "Who's the Employer (3rd ed.)" on-line. Chapter 4 seems to indicate that these employees are in general to be considered employees of the recipient organization (the plan sponsor) - see especially Q 4:43. Though Q 4:7 - 4:9 do seem to make a distinction between a "leased" employee and a "worksite" employee, I think his point about having to count all the compensation and service is still the same.

The way I read 414(n), the employee has to be employed for 12 months as a leased employee in order to be considered as an employee of the plan sponsor. The employees in this case don't make it that long as leased, they become "real" after 180 days at most. So I can't just say "immediate entry and leased employees are included". Do you have a different interpretation?

A client hires professional employees on a temp-to-perm basis, and would like to have them covered by their very generous plan from the day they start as "leased" employees (they want it to be a selling point to attract the employees). That's in quotes because these employees are (almost always) hired as "real" employees usually 90 - 180 days from the day they walk in the front door. So... while these employees are employed by the employement agency, they are not employees of the sponsoring employer, so they can't be in the plan. And I can't call them "leased" employees because they don't meet the 1 year discussed in 414(n)(2). Is there anyway to get these employees (or should that be in quotes?) into the plan? The company is trying to be more generous, and is shocked that it is so difficult to do so. Thanks.

I've got a related question: what does it mean that the plan is not following the hardship safe harbor rules? For example, I just had a client (for whom we only do annual administration) tell me that they've not stopped deferrals on hardships since the new HR person took over that area at the client (she didn't know that rule). Are there any real consequences? OK, there's the plan violation of not following the plan document, but what if the document doesn't "force" them to use the safe harbor requirements in the first place?

That's what we're going to start advising, too. Thanks, everyone.

We've twice been told by banks in the last two weeks that they no longer are required to accept the Form 8109, and that all deposits must be done electronically (via ACH, most likely). The bank rep pointed us towards the Dept. of Treasury's website and irs.gov, but we don't see anything there to support their claim. In our searching, we came upon dstortz.com, and this website of a CPA in Pennsylvania seems to agree with the banks we've spoken to. He even has a Form 9779 to get registered with EFTPS (Electronic Federal Tax Payment System) to make these payments. So, the question is... they've got to be kidding me, right? Can they really make the little mom-and-pop stores with retirement plans with no computer access join the 21st century even against their will? Many of these plans don't even have accounts that you could ACH from! Anyone seen anything like this? Thanks.

JanetM, isn't what you're suggesting essentially the same as an SMM? SMM's can be given out some time after the actual change, so handing it out with the next paycheck or statement - which is a good idea, not giving the participant's another notice at a separate time - seems to be the same thing. BXO - the Loan Procedure is part of the SPD, so I see your point. That's an option that I don't usually use (but I didn't write this document!), so maybe we made it more difficult on ourselves. But I don't think that really matters, since the language of the Loan Procedure is referenced in the SPD (when it is a separate document) and the plan document itself. Bottom line: I gave them an SMM and told them to hand it out at a convenient time in the next couple of weeks. So much for trying to simplify things...

I have to amend a plan because it was written to provide for monthly loan repayments, but the client now tells us that their payroll cycle is weekly and they (wisely) want to make all loans be paid through payroll deduction, one paycheck = one repayment. How "material" is this change? The plan is a Datair prototype, where the Loan Procedure document is referenced to be part of the master document. Not that the employer is trying to hide anything here (that I know of), but if they can avoid confusing the participants with an additional notice, that would be nice. Is this a small enough issue that it doesn't warrant notification? Thanks.

How are we supposed to handle SSA reporting for plans that we takeover? It is rare (at least, in my experience) to get the 5500's going back far enough* to show that all my terminated participants have been previously reported on an SSA, so I'm wary of reporting them with the "D" code when they get paid out because I don't know if that will generate any correspondence from the Social Security Administration or the IRS. I've sometimes used the approach of reporting all my old terminated participants with a code "B" on the first year's SSA that I do (and preparing to say "whoops, I meant A" for any that I get questioned on), but I don't have any real basis for that. Is this really an issue that needs to be worried about? Or does someone at the SSA just note that a participant with a "D" this year was never reported before, mutter under their breath about stupid plan administrators, and forgets about it? * of course, the SSA is not public information (since it contains the SSN)

A participant has an IRS lien against her wages that states that she cannot make 401(k) deferrals from her paycheck (presumably until the lien is satisifed). However, she now wants to take a loan from her existing account balance. This is not mentioned in the lien specifically (I'm hoping to get a copy of the actual lien soon so I can verify its contents), but should the employer allow the loan? Any suggestions? My first thought was that they should call the agent/office who issued the lien, but they don't seem eager to do that...

I've got a number of plans that terminated and paid out in 2006. Do they still need to sign a final 401(k) amendment? I was under the impression that any plan that still had assets in 2006 had to do it, regardless of when the plan actually signed a termination resolution, but I've been hearing some say that's not the case... Thanks!

I've looked at several similar threads on this, but most are old enough that I wanted to see if there were any new ideas... 4 participants of a plan have returned to Ecuador - a very "in the middle of the night" kind of deal. Three have balances in excess of $5,000, and the other is over $1,000 (which is the plan's new automatic distribution threshold effective 3/27/05), so there's no basis for an immediate distribution anyway. Can these participants be declared "lost" or "missing"? They have sent certified letters to their last known address (which have all been returned, naturally). They were not in any of the employer's other plans, so there's no information there. Regarding beneficiaries, they either didn't complete it or were each other's beneficiaries, so that's not going to help. And I can't imagine the IRS or SSA letter forwarding service is going to be able to find them - they'll have the 2005 address, and I highly doubt they are going to pay taxes in 2006! Our plan document (Datair prototype) says that if they don't respond within 3 years of sending a certified letter, "the ultimate disposition of the then undistributed balance of the Distributable Benefit of such Participant or Beneficiary shall be determined in accordance with the then applicable Federal laws, rules, and regulations." It seems that I just have to tell my client to sit tight until 3 years have passed and then revisit the issue, right? But let's say that three years is now - what would I do with this money? Thanks.

Philosophically, E. That's what I was trying to ask. Profit sharing contributions are from the employer, too, so why not hold them to the same standard? No, wait, I don't want more spousal consent plans... Point taken, Belgarath, but it's certainly the rare case nowadays where a new PS/401(k) isn't written to neet the QJ&SA exemption. And I've got plenty of profit sharing plans where I'm still carrying the "old money purchase" balance as a separate source still subject to QJ&SA; in fact, that is sort of what lead to the question in the first place. So, not to sound like a typical 5-year-old, but, "Why?"

I had a broker ask me this question, and I had no idea what the answer is. I'm not having any luck finding anyone who knows for sure, so here I am. We know that profit sharing and 401(k) ("non-pension") plans don't need spousal consent for distributions (and the same goes for pension plans where the distribution is <$5,000) if the document so provides. But why those kinds only? Why does a participant with a $6,000 money purchase plan balance need to have her spouse sign a consent form, but not a participant with the same balance in a profit sharing plan? Any help? Thanks for the illumination...

Uh-oh; not so perfect. I just had an accountant tell me that the correct way to do this was to take the ordinary business income (Line 1 of the 2005 K-1), add the guaranteed payments (Line 4), and subtract the Section 179 deduction (Line 12). This comes up with a number slightly different from Line 14 - Line 12. I didn't really get a good explanation (or maybe I just didn't understand it), but he was quite sure that his way was correct. Is anyone else doing it this way?

Perfect, R. Butler, thanks!

I was at a Corbel conference just over a year ago, and I've got a hastily scribbled note that says "real net K-1 earnings are net of IRC 179 amounts and non-reimbursed expenses". Now, not that I don't trust myself, but I can't find anything anywhere that corroborates this. Does this sound familiar to anyone out there? Also, does this hold for Schedule C comp as well? Should I be backing line 13 out of the the net comp?

If a participant leaves company A and begins to work for company B (both of which are in the same controlled group), can their account balance be transferred from A's plan to B's plan? Or is there not a distributable event because the participant hasn't left the employ of the controlled group? Does it matter if the change was initated by the company or the participant? Gut reaction: you would be allowed to make the transfer; it would certainly make things like loan processing easier. Thoughts?

Not meaning to drudge up an old thread, but... I have the same issue w/ a prototype plan, so I actually called the IRS yesterday (!) and got someone who was very clued-in as to what I was talking about (!!). He said that since technically opinion letters are NOT determination letters, 3c on the 5310 must be answered "no", and you are required to send copies of all plan documents/amendments/whatever back to plan inception. That being said, he noted that it is up to the individual reviewers, and proof of a valid GUST document is probably all that will be looked at. We're going to take the policy of sending GUST and subsequent amendments only (along w/ the opinion letter), and we can discuss what else the reviewer will actually look at when he requests more information. The plan I'm working on is over 25 years old, and finding/pulling documents from that far back is a can of worms I don't want to open if I can avoid it!

I've got a controlled group (technically a group under common control, since at least one of the entities is a partnership) where the same four individuals each own 25% of each entity H, G, and S. H and G each have their own plans, which are mirrors of each other (deferrals only), while poor S has no plan at all. Luckily, S is a staffing company that provides per diem employees to H and G, and both H's and G's documents specifically exclude per diem employees, so the vast majority of S's employees are not eligible by class, and since most work less than 1,000 hours, they would never meet the statutory guildelines and therefore don't impact the coverage testing. I know there are issues with long-term employees from S possibly being considered employees of H/G after a year, but that's a question for another thread (though it may be coming soon!). From reading Tom Poje's responses in this thread: http://benefitslink.com/boards/index.php?showtopic=29893&hl= it sounds like I have to make the same aggregate/disaggregate election for both coverage (410(b)) and 401(k) testing, but am free to select either option. Have I got it right? Are there any circumstances that would force my hand one way or the other (besides, of course, that doing it one way fails and the other passes!)? This is my first time dealing with something of this complexity, so if I'm overlooking anything else, please feel free to let me know.

OK, Leopurrd, but then how do you match on that deferral? There's no real compensation to base the formula on. Obviously, the easy answer is to allow for true-ups, but we can only lead the horse to the water; we can't make it drink!

Bird, then how is the s/e participant able to defer during the year? They are not making a contribution based on an election form (which presumably asks for deferrals on a payroll basis, not annual). I too have a safe harbor match plan, and I stumbled onto this problem by trying to advise how to calculate the s/h match (100% of the first 3% plus 50% of the next 2%) on the partner's deferral, calculated on a payroll basis w/ no true-up. Search can be your friend!

I think I may have found the answer, where else but in Sal Tripodi's book. From the 2005 ERISA Outline Book, Chapter 13, Section VI, Part E.1: <emphasis mine> So the prospectus can be provided after the participant buys into an investment, which happens fairly automatically in my experience. I'm willing to interpret (2) as saying that the participant has to be made aware that they are able to use a brokerage account as an investment option, as opposed to a description of every stock, bond, fund, etc. That's how I'd also respond to your "designated fund" issue, MWeddell, although I admit that I've not seen anything concrete on that, either. So unless anyone can point out a real flaw in this reasoning, I'm willing to call this settled. Anyone?

I've read through the 404(c ) checklists and commentaries from Fred Reish, David Pratt, and several others, and it seems like saying you intend to comply with 404(c ) (on the 5500) and actually jumping through all the hoops to do it are two separate things entirely. That being said, can you even make a claim to be attempting to be 404(c ) compliant if all participants have individual brokerage accounts? The participants can invest in anything they choose, so I would think that there is no way the Trustee can provide education and information on everything available. Unless then this responsibility it assumed to be covered by the broker, but I don't know if that is OK. Thanks.