John Feldt ERPA CPC QPA

Have you tried submitting the question to SunGard to see what their document wizards can conjure up for you?

Here's a chart that may have some use, but the 403(b) restatement column is just a fantasy, ... for now ... 6_year_cycle_with_403_b__Guess.pdf

Pre-approved plans are on the 6-year cycle. The current DB 6-year cycle ends/restarts sometime in early 2016, not before 2-1-2016. They can generally rely on the opinion letter assigned by the IRS to that prototype. If they do a "no-no" in some of the document selections, they can lose reliance and be in the 5-year IDP cycle. For example, if they wrote cash balance plan provisions in the "other" boxes somehow, or if they amended the plan to add cash balance provisions. See Rev roc 2007-44, Part III and IV. http://www.irs.gov/irb/2007-28_IRB/ar12.html edit: typo

Thank you - if the full amount is prefunded and the pastor is called away mid-year or dies, what happens to any unused employer funded HSA? Is the annual limit pro-rated?

A church's HDHP plan has a $5,000 deductible. They have one employee, the pastor, who is technically self-employed as pastor's generally are, but self-employed for tax withholding purposes. The employer (the church) has adopted an HSA plan and has decided to contribute $5,000 toward that in 2013. Is this allowable? If so, how/when should the $5,000 be deposited into the HSA account? Can the employer deposit the entire $5,000 in January 2013? If they do, what issues could arise?

Many pre-approved volume submitter defined contribution plan documents currently allow multiple employer provisions. In 2014 when the next restatement window opens, prototypes will also be allowed to have multiple employer provisions instead of just the vol/ sub. documents. If you are sure that the reason for the IDP document is not because of some other provision(s) in the plan, then you should be able to find an EGTRRA pre-approved vol. sub, document to accomodate.

Does not 401(a)(4)-11(g) affect already eligible employees? Because she's made of wood?

Nice. Maybe next year we'll find out if they think a safe harbor 401(k) plan with SH match plus an unused integrated profit sharing component with a last day requirement can be amended to change the allocation formula during the year to place each person in their own class. Also, question 42. deals with an amendment to a safe harbor plan where SH contributions were not madedue to bankruptcy (the IRS says the plan should be able to amend).

As for the charge, I think one stick of TNT ought to do it. Derrin Watson has some Q&As right here at Benefitslink regarding MEPs. I am sure there are some that do not agree with all of his opinions. Upon takeover, we've come across several large open MEPs (unrelated employers) where just the one 5500 was filed, not filing a 5500 for each single employer. First, here's a DOL opinion relative to just one MEP, 401(k) Advantage. http://www.dol.gov/ebsa/regs/aos/ao2012-04a.html Here are Derrin's Q&As: http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=315 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=316 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=317 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=318 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=319 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=320 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=321 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=322 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=323 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=324 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=325 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=326 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=327 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=328 http://benefitslink.com/modperl/qa.cgi?db=...loyer&n=329

Agreed. The provisions need to be in place before the start of the plan year and the SH notice must be provided a reasonable period of time before the start of the plan year.

A lump sum window in a 401(k) plan? ERISA Section 104 governs the SPD and the regulations under 2520.102-3: Here are a couple of excerpts from the regulations: The summary plan description shall be written in a manner calculated to be understood by the average plan participant and shall be sufficiently comprehensive to apprise the plan's participants and beneficiaries of their rights and obligations under the plan. In fulfilling these requirements, the plan administrator shall exercise considered judgment and discretion by taking into account such factors as the level of comprehension and education of typical participants in the plan and the complexity of the terms of the plan. Consideration of these factors will usually require the limitation or elimination of technical jargon and of long, complex sentences, the use of clarifying examples and illustrations, the use of clear cross-references and a table of contents. The format of the summary plan description must not have the effect of misleading, misinforming or failing to inform participants and beneficiaries. Any description of exceptions, limitations, reductions, and other restrictions of plan benefits shall not be minimized, rendered obscure, or otherwise made to appear unimportant. Such exceptions, limitations, reductions, or restrictions of plan benefits shall be described or summarized in a manner not less prominent than the style, captions, printing type, and prominence used to describe or summarize plan benefits. The advantages and disadvantages of the plan shall be presented without either exaggerating the benefits or minimizing the limitations. The description or summary of restrictive plan provisions need not be disclosed in the summary plan description in close conjunction with the description or summary of benefits, provided that adjacent to the benefit description the page on which the restrictions are described is noted. If the participants have been fully informed and an old provision now no longer has meaning or relevance, I see no requirement that the SPD itself must have its language memorialized in its text. For example, do current SPDs still include language that the age requirement to enter the plan was 25 before the TEFRA/DEFRA/REA restatement was done? Probably not.

Was the time period disclosed with the SMM? Perhaps a little more information might help, too. Does the amendment have any possible permanent affects such as a right or feature that could continue to apply to balances that were in effect at the time the amendment occurred?

Yes, I have seen that (slide 27). But again, you may sometimes be surprised what special circumstances or arguments will be accepted by the IRS. edit: typo

If you file VCP you could try various options to fix, such as (quietly now, sh . . . . ) doing nothing regarding the extra deferrals. If you have a good argument and if they're NHCEs, I've heard that some plans have been successful in arguing that position.

I'm sure you know, but keep in mind that she does not have to have any ownership to be key IF she is an officer (or has executive authority) and is being paid wages over the 416(i)(1)(A)(i) threshold ($160,000 for 2012).

Like (NOT). dislike? unlike?

The IRS has not issued guidance regarding interim amendment requirements for 403(b) plans. The only IRS guidance for 403(b) plan language is that employers have a good faith attempt to comply with the final 403(b) regulations. Perhaps when this remedial amendment guidance is released soon, they will let us know about the interim amendment deadline issue that you ask.

Like.

Yes they can. If the participant dies and the death benefit is to be paid to this foreign individual, I think the beneficiary will need to obtain a taxpayer ID (if they don't already have one).

They could adopt an amendment now that reflects their current operation as it relates to HEART, or they can wait until the IRS truly defines an actual remedial amendment period for the 403(b) world and amend/restate by that deadline. I think it was three years ago that we were told guidance would be issued soon for this, so don't hold your breath!

Or if they are HCEs.

You're right, it was Tech Value Electronic Superstore, so "by" is more likely. To me it's a classic like The Princess Bride.

Maybe it should be "Buy" instead of "By" since he was doing a gig for a hardware store when he said that. Gotta love Mr. Rickman.

Six or seven years ago when I first started here, a very small terminated plan had been sent in for a D letter request - I worked on the response, not the submission. The IRS requested a copy of the signed 401(a)(9) amendment (I think). The plan was not on a prototype document since it was cross-tested, and back in those days volume submitter plans had to have their interim amendments signed by each plan sponsor/employer. We showed the IRS our records that we had sent a 401(a)(9) amendment for the employer to sign, but the employer could not find a signed copy (nor could we). The IRS explained they had no choice but to go to audit cap without that signed amendment, and the sanction would be $2,000. Then they explained something to me that sounded like a limited time sale opportunity where a 50% discount applied, and they only charged $1,000. Some deal. By Grabthar's hammer, what a savings.

The time and effort to file under VFCP will far exceed the $50. When you say you calculated the lost earnings - did you calculate the lost earnings based on the plan's rate (or best returning fund)? Or, did you use the DOL interest rates and their calculator? If you used the DOL rate, then you've satisfied the IRS, strangely enough. But unless you file the VFC thing with the DOL, you aren't technically eligible to use the DOL interest rate. From DOL investigations we've seen where VFCP was not filed, there have been 2 results, differing only because of the difference in the auditor (as far as we could tell): Investigation #1) Agent: You are not eligible to use the DOL rate, you must recalculate using the non-DOL interest rate (plan rate). Plan spends several hours of time to calculate and puts in an extra $67 into the plan. Case closed. Cost benefit analysis? Irrelevant. Investigation #2) Agent: You used the DOL interest rate, we're alright with that. Case closed.