John Feldt ERPA CPC QPA

Well, then in that case I have seen some documents that have a "Lazy Amendment Writer" clause, and inside the plan document somewhere you might find a paragraph that says something like: If the vesting schedule is amended, the new schedule only applies to participants with one hour of service after the effective date of such amendment unless the amendment specifically provides otherwise. Absent that, I think you look to the section that gives authority to someone to interpret the provisions of the plan (usually the Plan Administrator). Then have them use that authority.

The document and its amendments will answer this one. Usually, an amendment that provides improved vesting is also written such that it only applies to employees who have at least one hour of service with the employer after the amendment's effective date.

A plan has immediate eligibility and only allows deferrals. One job type is excluded which consists of NHCEs (normally about 18% of their workforce). The size of that group doubled in 2013, making them become about 36% of the workforce. There is only one HCE. The HCE did not defer last year. Can the plan test the deferral portion of the plan for coverage by using the average benefits percentage test? All of the NHCEs are benefitting at the same rate or higher as the HCE (HCE rate is zero) - this seems too good to be true - what am I missing?

Perhaps if you inquire about the participant's family history - did they descend from a line of mermaids? Thus eliminating any question about the principal residence?

Substance generally means that you can't provide an allocation to a nonvested terminee and then forfeit the benefit. Doing that would have no substance. What you describe doing seems okay to me, including cherry picking NHCEs, unless it goes so far to violate the unapproved unwritten regulations otherwise known as the Carol Gold memo. In that memo, all of the regular full time employees were excluded from the plan and only the very short time people were covered just to get the plan to pass. The Carol Gold memo indicates that certain words written in the 401(a)(4) regulations about discrimination might have to be ignored, in particular: "In making this determination, intent is irrelevant. This section sets forth the exclusive rules for determining whether a plan satisfies section 401(a)(4). A plan that complies in form and operation with the rules in this section therefore satisfies section 401(a)(4)." Basically the memo says that as long as the plan is not primarily designed to benefit mostly short service part-time employees, then you are okay, probably. Otherwise the design is violating "the spirit" of the regulations. Where do the regulations support that idea you ask? Well, although it seems to contradict the quote above from 1.401(a)(4)-1(a) above, here's 1.401(a)(4)-1(c ): "(2) Interpretation. - The provisions of §§1.401(a)(4)-1 through 1.401(a)(4)-13 must be interpreted in a reasonable manner consistent with the purpose of preventing discrimination in favor of HCEs." So, although the exclusive rules are spelled out and intent is irrelevant as stated under 1.401(a)(4)-1(a), 1.401(a)(4)-1(c ) says, "but not really." edit: for clarification

Also, read the PPA document. I know some documents were framed in such a manner that the forfeiture offset for SH remains in place under the PPA document until the first day of the plan year after the PPA document is executed. Yes, the IRS allowed some plans to be approved with that language.

Yes, when all of the top heavy exemptions are met, it is still possible that some non-key EEs are not getting a top heavy minimum (the HCEs who are not key employees). And the plan still meets the TH exemption when that occurs.

As for the 5% gateway. Since the terms of the plan require the 5% without certain plan compensation exclusions, then you must allocate as such.

Exclduing pre-tax deferrals is a safe harbor 414(s) definition that would not require the compensation definition to be tested - is that the plan's definition? Anyway, if it truly fails, you ALWAYS allocate according to the terms of the plan document. If the definition of compensation does not satisfy 414(s), that means that you still allocate using that definition of compensation, but then you now must test those allocations using any definition of compensation that DOES satisfy 414(s). Or, if you have a very inflexible plan document, you must test using the required testing compensation required by the plan document (payroll provider document or large MEP documents tend to have this). The testing of those contribution caould be done on a contributions basis of a benefits basis, or depending on the situation, some of each perhaps. If you still can't pass, then probably a -11(g) amendment might work to change the definition retroactively to the beginning of the prior year, as long as no one's benefits are reduced.

Actually, the tantrum is later when taxes are due.

Roll it to an IRA. Withdraw it all from the IRA and elect no withholding. No tantrum.

Agree with yes - who wants to deny a an employee on military leave the option to withdraw some of their plan money?

It won't make a difference in the results for most plans, but what does 1.401(a)(4)-12 say under "Testing Age"? It says if the plan provides the same uniform normal retirement age for all employees, the testing age is the normal retirement age.

No. Having an opinion letter covers you.

Using May's 237.9 as a projection for July, August, September, I get (unrounded): catch up 6,042 deferrals 18,126 compensation 267,660 DC 415 53,532 DB 415 214,128 Key EE 173,979 HCE 120,944 SIMPLE 12,547 edited: for an error noticed right after posting

A catch-up deferral is a deferral election made by the employee to defer from their wages. If the employee defers zero, there is no catch-up deferral. So, $57,500 is not availbel. Only a $52,000 PS allocation instead.

If job security is not an issue, then the best time to take out a loan from your 401(k) or 403(b) plan is right before your plan investments drop due to a market decline. The loan repayments will be buying back into the market when the market is lower. The worst time to take out a loan from the plan is when your investments in the plan are about to enjoy some really great gains. Simple math. The tax deductible nature of the loan interest looks like it is not much of a factor in your particular case. So, now if you could predict the future . . . but then you would not likely need a loan for anything if that were true! So, yes, you are right that repaying a plan loan is paying the interest back to your own account instead of to the loan institution. If you feel the payment terms can be handled and you won't need a forebearance waiver for job issues and your job is secure, then it could be reasonable to take the loan from the plan to pay off another loan outside the plan. However, the future is an unknown, so you'll have to make the determination as to what you think makes the most sense for your situation.

But it does count against the current deduction limit, not against the 2012 deduction limit.

As you know, the "benefit" being tested under 401(a)(4) is the combination of the benefits from both plans. I would think the incidental benefit would need to be based on that "benefit", which could easily exceed the maximum allowable life insurance benefit that the DB plan can actually provide to the NHCEs in the DB plan. Who wants life insurance in a combo design? Is Ned Ryerson involved?

Yes, I agree that the EGTRRA document takes care of all of the GUST-to-EGTRRA interim amendments, so you don't need to adopt those as it could contradict the language that got approved in the EGTRRA document. The VCP submission should be sure to address any interim amendments not handled in the EGTRRA restatement (its cumulative list) that were not timely adopted. That is, unless you are submitting a PPA restatement as the plan's correction for those missed interim amendments, then just submit the PPA document in lieu of those interim amendments.

Okay, yes, it is "like" tax fraud because it "is" actual tax fraud, I agree. It's perhaps a more indirect method than what most folks would even consider.

Backdating is like tax fraud. That's definitely not protected by simply having a Determination Letter

If you timely adopted the interim amendments after EGTRRA, then your VCP statement does not need to mention them and there is no need to submit them. Your IRS stamp of approval from the VCP filing will only give reliance that the employer has finally adopted the items listed in the application, and thus the "oops, I'm late!" issue is resolved. The IRS does not review the amendment language submitted under VCP. So, if the PPA amendment, the 415 amendment, and the HEART/WRERA amendments were problems (not timely adopted), then I suggest they be submitted. However, I could be wrong. Perhaps the execution of a pre-approved EGTRRA document (albeit after 4/30/2010) also provides the employer with retroactive "reliance" for each good faith amendment executed by the document sponsor, making them somehow "timely", but I am not currently convinced of that.

If they never restated for GUST, then I would prepare a GUST document and an EGTRRA document and have them sign both now. Heck, why not add in a PPA document as well if it's a DC plan? Then submit both the GUST and EGTRRA documents to the IRS. Include the interim amendments that apply after the EGTRRA document.

Agree with Kevin C. Also, if on the other hand, the plan had investment losses after December 31, 2013, those losses will be attributed to the others, not to your account. That said, many plans are written such that the fiduciary can perform an "interim" valuation if they believe it would be prudent and/or necessary to do so. Your plan might or might not have that flexibility. This option can be very important in the situation where large investment losses occur and the prior year-end balances being paid now exceed the current market value of all the assets in the plan (October 1987?). The plan language could allow the fiduciary to value the plan during any interim date other than the last day of the plan year. In one such plan I recently came across, a fairly small plan, the plan fidcuiary does an interim valution every time a vested participant is paid out. The plan only has a handful of participants, so these interim valuations only occur once every few years. Very unusual, but seems okay.