AlbanyConsultant

Is it oversimplifying the concept that plan with an elapsed time eligibility provision is not subject to the LTPT rules? I seem to have picked that up somewhere, and I haven't seen it debunked at any webcast. Thanks.

I think I'm getting confused with how this works and tracking all the moving parts... Calendar year 401k, SHNEC, PS plan for a partnership that we took over this year. As we're reconciling it, we notice that the 2021 employer contributions were not deposited in 2022 - presumably they were deducted. We've always taken the position that the SH has to be corrected so that has to be deposited ASAP with corrective earnings. Fine, that's easy. On PS... since the deposit was not made by 9/15/22, the deposit is subject to be counted in both the 2021 and 2022 annual addition limits. But it wasn't deposited in 2022 at all... so there's no effect on 2022? I assume this now becomes a SCP issue (it's small enough overall in the plan - we'll get to that in a minute)... and so even when they make the deposit now in 2023, it's under SCP and I don't see where that affects their annual additions limit (I just assumed it should, but most corrections don't). So I must be missing something. It must be somewhere that this would count towards the limit, otherwise any plan that missed the deposit deadline would just wait it out a couple of months and correct via SCP. [Yes, the SH would also be in the same 'count towards annual additions' as the PS. And, in fact, some of the partners' deferrals are in the same boat, too, so they've got late deferrals to add on top of this.] So... I think it should be that all the missing 2021 deposits have to be made now, and they will offset either the 2022 or 2023 annual additions limit (their choice) by participant. That feels right. Nice to see that in black & white, though... or to have the actual right answer, either way. Thanks.

Completely agree that service in the union counts as "service" for our plan definition - we had always assumed that if a person was "union" then all their compensation was paid through the union and therefore they met the exclusion for collectively bargained employees (and obviously if they switched to a non-union position, that service counts towards eligibility). It's the finding out that this plan is paying their union employees some non-union wages at the same time they are getting paid union wages that is the novel thing for us. Well, it's only 40+ union employees (vs. the 3 office employees) going back 15 years to the start of the plans (yes, DB and DC). How bad could this be? *eyeroll* And maybe some attorney fees just for good measure. It's a shame the prior TPA is out of business...

It's our first year with the plan, and they said "we have X number of union employees", and as usual union employees are excluded from the plan. We were going to let it go at that (i.e., they are union and were with the union all year long, so we were going to take it as read that they are able to be excluded) until we saw the payroll report that showed these employees with "regular" compensation and we asked for more information. In our experience, to the best of our knowledge, in all our plans, if you have been a union employee for the entire year, then all your compensation has been union compensation (or, at the least, all your hours have been union hours). Maybe we've just lived a charmed life that way. Or you don't know what you don't know you don't know. We would never have thought this was common. I would think that there could be a difference between getting non-union pay and working non-union hours. But in the case I've got here, they clearly are saying that at least some of these people do have non-union hours worked. I'd love to refer them to an attorney to get this reviewed, because it will probably be much easier to correct if they are administering it incorrectly on their end (as in it should be all considered union pay and they owe past money to the union hall) than to fix the plan for the past 15 years.

A plan sponsor is telling us that their union employees are getting non-union pay for small amounts of pay during the same pay periods as they are getting union pay - a couple hours of 'regular' pay, some bonus pay, some sick pay. This is not being reported to the union hall, as they are saying it's for non-union work. This isn't something I've knowingly seen before - if you're a union employee, I've always figured that your compensation was union unless you switched in or out of it during the year. But I'm not a payroll person, and I'm no labor expert; is this really a thing? I've seen it for prevailing wage work, but not for union people. Do we need to be asking our clients if their union people are really 100% union? Or at least putting that assumption in small font somewhere? Thanks.

I thought I had seen this discussed here previously, but I'm not finding it... We offer plans the ability to have our participant loan fees (both initial set up and annual maintenance) paid directly from the accounts on the recordkeeping platform, or some plan sponsors offer to pay the fees themselves (usually when there are few loans, or it's a tight-knit group). And then sometimes this kind of thing happens, where the plan sponsor was paying the fees... and then at some point they decided that was stupid and started having the participants reimburse the employer for those loan fees on an annual basis once they got our invoice (it's itemized enough to show the fees for the loan charges, so it's not hard to figure out who the loan charges are for, especially for a small plan). Of course, they don't tell us they are doing this until it is mentioned accidentally in a conversation and my distribution team person has her eyes pop out of her head. She offers to change the plan so that the fees come from the accounts, and is told that, it's OK, this works for us. So... does it, really? The loan policy DOES include our loan fee in the amount that is being charged to participants (both at setup and annually), so maybe it does... though it does say that fees are deducted from the accounts from which the loan is taken, which is not correct, so we'd have to modify that. But it's not on their 404a5 fee disclosure from the recordkeeper - only the recordkeeper's loan fees are shown. And I don't think they'll let us add our fees there unless we are charging them from the plan accounts. So my overall gut feeling is that this is danger zone territory. Or, does the fact that this is handled "outside the plan" make this a moot point? That feels wrong just typing that, but I think that's their rationale.

If the participant isn't electing to withhold anything now (understanding that withholding isn't mandatory on a hardship), can the amount taken still be grossed up to include an amount to cover taxes to be paid later? I see discussions here on how to actually figure out how much is an appropriate amount to gross up - we're going with a simple 20% of the amount requested, for better or worse. But I don't see anything that says that if you're not electing to have the taxes withheld now, that takes away the ability to have the distribution increased for the taxes that will be due, so long as you're still under the amount that you have available under the terms of the plan. Right? Thanks.

I go with how they treat them on their system. If they say the person is active and received compensation, then they are active. On the other hand, if the plan sponsor counts them as terminated and then rehired (and then re-terminated) each time they do a consulting gig, then that's terminated and no top heavy minimum. But most HR people won't go through that effort - at least until I explain to someone that they are costing the company money by keeping these people on the books as active.

A new company wants to join an existing MEP effective 6/1/23. Do any of the 2023 limits need to be pro rated for them, or because the plan was in existence for all of 2023 that takes precedence and they get the benefit of the full numbers? Thanks.

Thank you all. Turns out that we have a much simpler solution in this situation. In the separation agreement that the participant wants to use to justify not getting her ex's signature, there is language that specifically says that neither party can take a distribution from their respective ERISA retirement accounts until there is a QDRO to determine who gets what benefits. And, sure, that agreement was from 2014 or 2015, but there's been nothing to replace it and there has been no QDRO, so... do not pass go, do not collect your six-figure plan benefit. Sure - she signed that literally when she was a new participant (it describes her balance in the plan as "less than $5,000")... but when you're getting total allocations of $25K+ between deferrals and safe harbor and profit sharing for almost a decade, it's easy to not remember that silly little clause. So I guess the next question is, can you have a QDRO that affects the plan assets while still only separated? I suppose that's not really my problem - if I get a DRO that meets the qualification requirements, then it will be acted upon, so that's really for the lawyers to work out amongst themselves.

I've got what used to be a paired MP-PS plan where we merged the MP into the PS 20 years ago back when that was all the rage. Of course, that MP money is still tracked separately for purposes of making participants who have that money get the proper spousal consent for a distribution. Now I've got a participant who is saying that when she Legally Separated from her spouse, as part of the separation agreement he waived all rights to her plan benefits. There is no other plan paperwork to his effect - I presume he is on the beneficiary form as her beneficiary (which predates the separation agreement). This is a new one to me. Is this legit? I feel pretty confident that she is still considered married for plan purposes, but can the spouse waive his rights that way? Thanks.

Right - I always forget that part when the eligibility is different. Thanks!

I thought I was right on this, but I'm looking at what the prior TPA did last year and it doesn't match up, so now I'm questioning myself... MEP has immediate entry for deferrals and statutory (1 YOS/ semi-annual) for SHNEC and PS. This particular adopting employer is top heavy by percentage but is choosing to only do the safe harbor this year. This makes them exempt from the TH minimum, correct? As in, those who are eligible for the deferral only (like those hired in 2022) don't need to get any allocation. Just like any single-employer plan. I was pretty sure of this until it came back to me that the TPA who did this calc for 2021 gave the 2021 hires a top heavy minimum for 2021 because they are top heavy (and they also did not do any profit sharing in 2021). To me, that's an error and I don't intend to repeat it, but I figure I'd better double-check, so... is there something MEP-specific that I'm overlooking? Thanks.

No, really, this one works - it's a one-person plan. The owner is maxing his Roth deferrals. He's even going to make his max $20K PS as Roth because he's in a self-directed brokerage account, so we can make that work. That leaves $20K to be put in as voluntary after tax, which the document allows. I figure that should be put into a different account since that has a different tax treatment. And then what is the best way forward? My thought was that it was better to roll that VAT money to a Roth IRA instead of doing an in-plan Roth conversion; it helps keep the plan under the $250K to avoid the 5500-EZ for a little longer. Are there any particular benefits or problems one way or the other? I don't see any rules about the timing of the Roth conversion. I'd think that depositing the VAT on Day One and, say, converting it to Roth inside the plan is just a thinly veiled excess Roth plan contribution, but I guess the regs don't see it that way. Obviously, the goal is to minimize gains in the VAT so there is no taxable income to report (maybe leaving it in cash will take care of that). I suppose there's still a 1099-R to report the base amount... another reason in favor or rolling to an outside Roth IRA! Thanks!

Can a 401k plan continue to function without Roth in a post-SECURE 2.0 world? Ignore the 'corner cases' where no one defers any catchup (whether because they defer low or there is no ADP failure recharacterized) or no one earns more than $145K (seriously, $145K? Like we needed another limit to track?). If someone earning $150K is required to make their catchup as Roth, then the plan has to allow Roth deferrals, right? I know we don't have all the answers yet, but it seems unlikely that there will be a special carve-out we can use to not amend the typically older plans that never had Roth in them before to allow Roth deferrals. And that amendment would have to be in place before any regular Roth deferrals are allowed, because the SECURE 2.0 amendment coming to a document near you in 2025 will only cover the catchup amounts. I - and I'm sure most of us - have a whole segment of plans that just want to keep things nice and easy, and I'm looking for a way to do that here... and not finding it. I'd rather the plan run smoothly than charge for correcting plan errors, personally.

A CPA reached out to me today to tell me that he was amending 2020 and 2021 tax filings for the Employee Retention Credit (under CARES, I think), and how would that affect the employer contributions for those years? Basically, certain business are getting to amend COVID-era (like it was so long ago) tax returns to claim a tax credit for retaining their employees if they met certain criteria (I don't care what the criteria are since I know my business didn't qualify for it). This increases the net income for the year - sometimes significantly - and therefore for a sole prop or partnership entity, this affects the net compensation. Has anyone else been hearing about this? How are you handling it (ideally with the minimal amount of disruption)? I'm concerned that if we include it in 2022 (or 2023) based on the deposit date, then it will reduce the amount that can be contributed for the current year (or next year). And, since the CPA is amending the 2020/2021 tax return, it would be nice (though not required) if things lined up. Any thoughts are appreciated. Thanks.

I'll share the answer - I had someone call the IRS and she got through easily (I know!). The rep said to print the screen that the system is down and we can use that to justify filing after 12/15 (presumably, as long as we file reasonably soon when it is back up).

Doesn't this happen every year - the FIRE system goes down for December? What are we supposed to be doing for 8955-SSAs due by 12/15? Just file them ASAP when it comes back up on 1/6/23 and wait to see what happens? I don't recall ever running into this personally before, which is hard to believe (maybe I've just gotten my 2/28 plans done earlier in the year before?)...

Always.

That's kind of where I was leaning - there is nothing to 'cause' a catchup (maybe there's an argument for lowering the $21,600 down to $20,500... or $19,500) to use that unused catchup from 2021. He has been making his deferrals steadily all along (with a larger drop right before 6/30/22). I found the language in our letter last year saying that this guy had better keep his deferral rate at about 7% if they wanted to pass (and sent early in the plan year); I suspect it wasn't communicated to the HCE. So if this is what it is, so be it.

Someone suggested this might be a way to help a failing plan fail less badly, and it's something I never would have thought of... is that because it's too out there, or because I'm too conservative? 6/30 plan year 401k plan, non-safe harbor is failing ADP test. It failed 6/30/21, too, but by recharacterizing $1,200 of the sole HCE's deferrals, a refund was avoided. For 6/30/22, the same sole HCE doubled his deferrals so is failing much worse. He deferred $28,100 for the plan year (not exceeding any calendar year limits), so even when subtracting the catchup, he still needs a refund of $6,700. The thought was that there's $6,500 - $1,200 = $5,300 of catchup that was unused from the previous calendar year - can that be used in this plan year somehow as well? Either to reduce the starting deferrals that are used to calculate the ADP test ($28,100 - $6,500 = $21,600 currently), or to partially offset the amount that is slated to be refunded ($6,700 currently)? Thanks.

You might get pushback on the asset payout, depending on how the account was set up. Some individual brokerage accounts that were set up with no beneficiaries will make everyone jump through a bunch of hoops to get things done.

Getting word that a plan I've been chasing is going to come with us. Sounds like they haven't yet gotten their safe harbor or EACA or QDIA notices from their current TPA or RK yet for 1/1/23. It's a SHNEC, so we can pass on that if we have to, fine. I'm getting information rapidly, but what if we just can't get enough to produce the EACA or QDIA notices by 12/1/22? I don't see any kind of remedy, like "hand it out as soon as possible" anywhere. What kind of pickle are they in? Thanks.

Is there a maximum percent of eligible pay that the NFP has to stay below? In the for-profit world, they have to stay below 25% to keep the contribution deductible... but there's no deduction issue for a non-profit. Whether or not a NFP should be spending 30% of payroll on a plan contribution is another question altogether, but if they had the cash, is there anything stopping it? I'm sure there is, but I haven't found it yet. Thanks.

I asked for an escalation to the platform's compliance dept. Good news - they agreed that no RMD is necessary. Hysterical news - the platform asked why we initiated the request for the RMD in the first place! LOL Thankfully, as the spouse is requesting a rollover of the full balance, I won't have to worry about any RMDs for 2023.