John Feldt ERPA CPC QPA

Of course, that's so obvious now. Thanks!

But if the plan was not safe harbor, it could have a 2-year eligibility wait for matching (with 100% immediate vesting), right?

Can a safe harbor match plan with an ACP-free additional discretionary match apply a 1-year of service eligibility requirement for the regular safe harbor match and apply a 2-years of service eligibility requirment for the ACP-free additional discretionary match?

By using a volume submitter, you'll get IRS advisory letters for your document instead of IRS opinion letters. You'll be a volume submitter practitioner instead of prototype sponsor. The reliance is basically the same however. You'll probably want to sign up as both a prototype sponsor and as a volume submitter practitioner anyway. If you are accustomed to using a standardized prototype now, the volume submitter document will not be able to give you reliance on the operational coverage and nondiscrimination. You will need to list each participating employer and have each one sign up (adopt the plan) if you do not use a standardized prototype document. If you cross-test, the volume submitter will not be restictive like the prototype document regarding the number of allocation rate groups. LRM #94 only applies to the prototype. I don't think you can exclude certain types of compensation under the prototype if the allocation is integrated, but you can in a volume submitter document (needs to pass testing). Under GUST, the volume submitter practitioner could not adopt an amendment on behalf of all employers, but now under EGTRRA the volume submitter document can be written to give the document practitioner such authority (be careful when choosing a provider if you are wanting this feature). This was an important feauture from a my perspective. Volume submitter documents can have minor modifications for an employer, and unlike a prototype these can be submitted under form 5307. The IRS gets to determine what "minor" means. Side comment: the IRS may someday remove the 5307 option however - I could be guessing wrong here. If filing a 5307 for a minor modifier, the volume submitter practitioner must be on the form 2848 - so if are going to be a minor modifier, you might need an ERPA, EA, CPA, attorney, etc. on staff (although I think you could use a Form 5300 instead and that requirement goes away, but the IRS user fee is higher). If you are a TPA, based on your type of client base, you might strategically decide to put everyone on the volume submitter document just to keep the data handling easier for the restatements, the amendments, and to keep it consistent for your administrators. A government plan sponsor can also have reliance if they are on a volume submitter document. I think such a document would need to be a specific government provision written document, or perhaps could be written in such a manner to clarify which provisions do and do not apply for a govenrment sponsor.

And remember, you can't amend a non-safe harbor 401(k) plan mid-year to add the 3% safe harbor nonelective unless you followed the "maybe" notice requirements by providing the notice within a reasonable period before the beginning of that plan year.

Wow, the plan document does not define who is eligible? And/or after that it doesn't define who gets the accruals? If it doesn't do that, then yeah, that's a problem. How did the valuations get done in the prior years?

Can the DB plan pass 410(b) when it is combined with the DC plan? If so, 401(b) passes. Can the DB plan pass 401(a)(4) when it is combined with the DC plan? If so, 401(a)(4) passes. If the DB plan also passes 401(a)(26) by covering at least the 40%, what amendment is needed?

Only affected participants become 100% vested. It is unlikely that a terminee from 2006 was part of the affected group or affected by this partial termination. Employees who left voluntarily in 2010 might or might not be considered as 100% vested, depending on the circumstances. Anyone who stayed around, of course, they would not be 100% vested. (perhaps that is ironic?) edited: typo

That's okay $5,500 of the $16,500 is catchup. You have a problem if that is the only participant in the plan though. If it's the only person in the plan, then the deduction limit of 25% of pay limits the $38,000 to a lower amount like $25,000 depending on whether or not the "compensation" figure is net earned income for a sole proprietor or if it's W-2 wages from a corporation (such as a P.C.).

As long as the plan (or combined plans if aggregated for coverage) provides a penny of benefits to enough NHCEs so the 70% ratio test passes for 410(b) purposes, then naming people should not be an issue, since it appears to only matter in the coverage test. Under the nondiscrimination test, 401(a)(4), naming names for benefit accruals or having individual allocation classes is not in and of itself going to be a problem, but giving enough someones a zero could be an issue.

How does one eligible for an in-plan Roth rollover in a qualifed plan become ineligible for an in-plan Roth rollover in a later year? Yes there are other risks other than market gain risk, of course market loss would be a benefit (from a taxation standpoint). Yes, other risks exist: rules could change (why ever do Roth then?), the particpant could die, unrecoverable calamity could strike the asset holder, the government could be overthrown. The participant will have to base their decision on the best information available.

"the IRS doesn't like if you name participants directly in their own group" What have they cited when they've reviewed plans with this - are they concerned about coverage, 410(b), or over testing of benefits, 401(a)(4) - or both?

I'd say the SPD was due within 210 days after the end of the plan year in which the change was adopted, unless all of your plans consist of only owner-only plans, government plans, non-ERISA 403(b) plans, non-ERISA church plans, etc. (since these non-ERISA plans aren't subject to these same SPD rules). ERISA Section 104. (b) Publication of Summary plan description and annual report to participants and beneficiaries of plan.—Publication of the summary plan descriptions and annual reports shall be made to participants and beneficiaries of the particular plan as follows: (1) The administrator shall furnish to each participant, and each beneficiary receiving benefits under the plan, a copy of the summary, plan description, and all modifications and changes referred to in section 102(a)— (A) within 90 days after he becomes a participant, or (in the case of a beneficiary) within 90 days after he first receives benefits, or (B) if later, within 120 days after the plan becomes subject to this part. The administrator shall furnish to each participant, and each beneficiary receiving benefits under the plan, every fifth year after the plan becomes subject to this part an updated summary plan description described in section 102 which integrates all plan amendments made within such five-year period, except that in a case where no amendments have been made to a plan during such five-year period this sentence shall not apply. Notwithstanding the foregoing, the administrator shall furnish to each participant, and to each beneficiary receiving benefits under the plan, the summary plan description described in section 102 every tenth year after the plan becomes subject to this part. If there is a modification or change described in section 102(a) (other than a material reduction in covered services or benefits provided in the case of a group health plan (as defined in section 733(a)(1)), a summary description of such modification or change shall be furnished not later than 210 days after the end of the plan year in which the change is adopted to each participant, and to each beneficiary who is receiving benefits under the plan. If there is a modification or change described in section 102(a) that is a material reduction in covered services or benefits provided under a group health plan (as defined in section 733(a)(1)), a summary description of such modification or change shall be furnished to participants and beneficiaries not later than 60 days after the date of the adoption of the modification or change. In the alternative, the plan sponsors may provide such description at regular intervals of not more than 90 days. The Secretary shall issue regulation within 180 days after the date of enactment of the Health Insurance Portability and Accountability Act of 1996, providing alternative mechanisms to delivery by mail through which group health plans (as so defined) may notify participants and beneficiaries of material reductions in covered services or benefits. (2) The administrator shall make copies of the latest updated summary plan description and the latest annual report and the bargaining agreement, trust agreement, contract, or other instruments under which the plan was established or is operated available for examination by any plan participant or beneficiary in the principal office of the administrator and in such other places as may be necessary to make available all pertinent information to all participants (including such places as the Secretary may prescribe by regulations). (3) Within 210 days after the close of the fiscal year of the plan, the administrator (other than an administrator of a defined benefit plan to which the requirements of section 101(f) applies) shall furnish to each participant, and to each beneficiary receiving benefits under the plan, a copy of the statements and schedules, for such fiscal year, described in subparagraphs (A) and (B) of section 103(b)(3) and such other material (including the percentage determined under section 103(d)(11)) as is necessary to fairly summarize the latest annual report. (4) The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies. The Secretary may by regulation prescribe the maximum amount which will constitute a reasonable charge under the preceding sentence. (5) Identification and basic plan information and actuarial information included in the annual report for any plan year shall be filed with the Secretary in an electronic format which accommodates display on the Internet, in accordance with regulations which shall be prescribed by the Secretary. The Secretary shall provide for display of such information included in the annual report, within 90 days after the date of the filing of the annual report, on an Internet website maintained by the Secretary and other appropriate media. Such information shall also be displayed on any Intranet website maintained by the plan sponsor (or by the plan administrator on behalf of the plan sponsor) for the purpose of communicating with employees and not the public, in accordance with regulations which shall be prescribed by the Secretary.

I was also surprised by the comment, but that's what he was saying. http://benefitslink.com/boards/index.php?s...st&p=161125 A quote from Mr. Finnegan "in fact they are very clear that if you have a definition of pay that will consistently yield a lower inclusion percentage for NHCes, it likely fails, regardless of the differential."

If HCEs will not normally be receiving any commissions, then this could be a problem regardless of the size of the percentage. I recall Tom Finnegan (I think it was him) mentioning that if a plan excludes some type of compensation which on average is only a small percent of pay (maybe only 1 or 2 percent) BUT if only NHCEs ever receive that type of pay, the IRS would likely say it is discriminatory by its definition. I think the argument is that the IRS would say that a "de minimis exception" was meant as that: an exception, not as a standard for the plan. For example, suppose a plan exclude bonuses for allocation purposes, which was making the HCEs compensation average normally about 5% lower than total pay, and a year comes along where cash flow slows so no HCEs get bonuses, but a few NHCEs still received bonuses. In that case, assuming the average percentage is small, then the exception applies, but no bright line exists to say whether or not 3%, 5%, or otherwise is considered to be "de minimis". That's probably not the situation you have, but may be worth considering.

For 2010, yes. The debate continues regarding 2011 valuations, but I think most enrolled actuaries are leaning toward the "not automatic" after 2010.

A true match must be based upon employee deferrals according to some type of formula structure that ties the two together. Anything else is an employer nonelective contribution. Employer nonelective contributions cannot be tested under an ACP test, even if they have been called a "match". What is allocated to participants who only have 1 year of service? edit:typo

Thanks Andy, very much appreciated.

I am not an actuary, so I am unable to research the ACOPA cabana message board, but I'd bet there are some comparable discussions in there, perhaps revolving more around the change from asset averaging to market value (nowadays anyway), but the general applicablility of these Revenue Procedures would certainly be discussed in that forum. Perhaps an insider could enlighten this board as well.

You're saying that Revenue Procedure 2000-40 section 3.13 is still applicable as an automatic approval, that announcment 2010-3 does not change that section of Revenue Procedure 2000-40.

Suppose a DB plan is 3 years old now and has used end of year valuations each year. A new actuary is assigned and wants to change the 2011 valuation date to BOY, 1-1-2011. Is this allowable without seeking IRS approval, or do you have to file and pay the $4,000 user fee to get the change approved starting in 2011?

A cash balance plan provides a credit which is tested to find out if it's meaningful under 401(a)(26). I don't see a measurement date for this tied to anything specific in the plan document. Must the date for determining its "meaningfulness" be the 1st day of the plan year or can the last day of the plan year be used instead?

See http://www.irs.gov/pub/irs-tege/simple_fixit_guide.pdf Starts on page 12 and mentions the $250 filing fee. If the SIMPLE is so "simple" that only one overlapping year exists and suppose that year has only a few hundred dollars of contributions in that overlapping year, you may consider whether or not it makes any cost-benefit sense to actually pay the $250 for the filing. It may be more cost-effective in that case to just remove the small ineligible contributions from the IRAs, including earnings on those ineligible amounts, report on Form 1099-R, and pay the excise tax on those ineligible contributions on Form 5330.

In order to be offered a lump sum, the participant must waive an annuity form of payment (QJSA) that would commence sometime during the 180 days after a notice is given regarding their benefit election. Thus, if a lump sum benefit is an option, an annuity MUST also be an option. Otherwise, you cannot obtain the appropriate waiver of the QJSA needed to allow the lump sum in the first place. IMO.

Perhaps they can convert half of their eligible account in 2011 and convert the rest in 2012. Market gains would be the only issue, but it would spread the taxation.