E as in ERISA

I don't understand. 408(m) says "The acquisition by an individual retirement account or an individually-directed account under a plan described in section 401(a) of any collectible shall be treated...as a distribution." 408(m)(3) provides an exception "In the case of an individual retirement account." If the prohibition by its terms applies to both but the exception by its terms applies to the IRA, does that suggest that "only" IRAs can invest in coins?

Other plans would just delay the distribution until after the quarterly valuation was performed.

I haven't seen an update to the regulations and don't expect there to be one. But on audit the DOL definitely applies the "earliest date they can be segregated" rule -- which many times would be five days after payroll.

Section 414(v)(3) doesn't mention Section 415. Therefore, I believe that the catchup is subject to the 415 limit. (So the profit sharing contribution is only $29,000)

The IRS doesn't want entity structure to be used to get around the discrimination rules. Accordingly, you are likely to draw scrutiny from the IRS if the same decisionmakers are determining the benefits for both entities, you put all the HCEs in one of the entities, and the decisionmakers give that entity much better benefits. Upon audit, the IRS would be likely to assert that the rules of that GCM apply. You are much less likely to be scrutinized if the benefits for both are similar and/or there are more HCEs in the entity with the worst benefits. One option is to consider putting all the employees in the taxable entity, and then having their time "donated" to the foundation. Alternatively, you can make sure that the "control" rules of the GCM are "violated." E.g., make sure that the board of the foundation and its employees, if any, consist of persons who wouldn't create "controlled group" issues under the corporate rules -- e.g., possibly adult children or non-lineal relatives like aunts and uncles or cousins, etc.. (Of course you would want to make sure that they are like minded about contributions, etc.). Then you know that the IRS can't assert they are in a controlled group.

Followup on rachd's comment: "Code section 6057(e) provides that the plan administrator must give each participant a statement showing the same information reported on Schedule SSA for that participant." ERISA 105© and IRC section 6057(e) require that participants reported on an SSA be furnished with the info on the SSA (name of plan; name and address of plan administrator; participant's name and SSN; and the nature, amount and form of the benefit). Participants in DC plans are not otherwise required to receive statements at any specific time (only upon request). Therefore, regular participant statements could probably satisfy this information if they include all the info.

I know that there are other posts regarding this. Maybe someone else knows how to link to those. There is no specific guidance on this issue at the current time. There is guidance saying that a participant's account can't be charged for a QDRO because that is a "mandatory" feature of a plan. The logic of that letter would suggest that participant's can't be charged for distributions either. They can only be charged for "optional" provisions under a plan like loans, etc. The conservative view is that participants can't be charged for distributions. The expense must be allocated. However, many have noted that doesn't make sense in today's world with individually directed accounts. The DOL still seems to be mulling over the issue.

ERISA Section 3(21)(a) definition of fiduciary includes: "...(ii) he renders investment advice For a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan...." I assume he is not receiving a fee for the recommendatins but is there any way that he could be considering as "indirectly" being compensated for the recommendations? Will the amount of compensation that he receives vary based on which investments are included on that list?

The exception in Sectin 414(g)(4)(H) applies only if the plan consists "solely" of safe harbor 401(k) and/or 401(m) contributions. Is that the case? There haven't been any 416 regulations since the safe harbor provisions were added. So its not 100% clear. But it appears that if you converted a regular 401(k) to a safe harbor 401(k), then you would still be subject to top heavy?

I thought that the post indicated that they are employees, just not deferring into the 401(k) at the present time.

Does this work: http://a257.g.akamaitech.net/7/257/2422/14...003/03-4546.htm If not, you can go the web site for the government printing office (gpo) and pull up the Federal Register for February 28.

See 416(g)(4)(G) excepting from "top heavy" certain plans that meet the 401(k)(12) and 401(m)(11) safe harbor rules.

The TPA is the "vendor."

Joe -- I believe that Kirk accidentally confused the ERISA blackout notice rules with the SEC blackout trading restrictions.

The notice regarding regularly scheduled suspensions can be in any of the following forms: > the summary plan description, > a summary of material modifications, > materials describing specific investment alternatives under the plan and limits thereon or any changes thereto, > participation or enrollment forms, or > any other documents and instruments pursuant to which the plan is established or operated that have been furnished to such participants and beneficiaries. These are not all required to be on paper. So the electronic notice may be sufficient for regularly scheduled suspensions. You obviously have actual notice that the suspension is occurring. If what you are really concerned about is the suspension itself (and not the notice), maybe you need to encourage your employer to change to a different service provider that doesn't do quarterly suspensions to collect its fees.

In a sale of stock, there is typically not a "severance of employment" on the part of any of the employees. So prior service with Y would be considered for various purposes. However, there are exceptions to this rules. For example, the answer may depend on whether Y was previously owned by another parent company.

The DOL blackout notice rules apply to suspensions of investment direction, loans or distributions, regardless of whether employer stock is or isn't involved. The SEC blackout trading restrictions only apply to SEC companies with employer stock in the plan.

If it is regularly scheduled and communicated to you in plan materials, then technically it is probably excluded from the definition of "blackout period."

Many plan documents will include "permissive" language that allows an employer to do something at a later date without having to do another plan amendment. But until the employer decides to effect that provision, it doesn't help you. It sounds like they haven't made it effective yet.

Maybe you just picked the wrong vendor! I think that you just need to "self-administer" the remaining dollars from last year.

The IRS will issue new proposed 401(k) regulations soon -- consolidating a lot of guidance out there. If these types of things aren't in those regulations and you want the guidance, it might be a good idea to submit comments!

To clarify: His compensation for the year was $200,000, his final deferrals were $10,000, and match was only $1,000 or 0.5% for the year -- much less than 25% on the dollar? My gut reaction is you're probably fine. I don't recall seeing the question answered unofficially. (If it has, hopefully someone else will answer.)

It is only available if the sponsor chooses that option. And there are generally specific rules that the sponsor would then comply with (to provide the employees the information needed in order to make informed decisions about selecting the investments). The sponsor may feel that its selected investment advisor will generally do a better job than the employees in investing the assets that it has contributed for employees retirement.

And remember that the independent fiduciary may decide that this investment is not "perfect" for the plan.

Why do you need to do any different than in past years? Why does this have to be a "new plan"?