John Feldt ERPA CPC QPA

We just received a fax from a government agency today -- the deadline to respond is May 10, 2011. Great Scott! Now I just need a nuclear reaction to generate the 1.21 gigawatts of electricity.... Too bad one of the adminstrators is already out with the DeLorean. Maybe they think plutonium is available in every corner drugstore . . . Marty!

QDROphile, Thanks for the reply. It's similar to the "know your audience" basics - those are definitely good points to consider. I am a plan compliance/plan design geek working for a service provider (sometimes called a TPA). I appreciate the response. -John

Right, I'm a sheriff. No, we brought up the issue when we were asked to propose a new plan design for one of the businesses. Our questions revealed that a potential problem existed, one that the employer was not aware of. The problem (to me) is that they are asking for opinions only from the same people that put them into this situation to begin with, and the response has basically been "it's not a problem, you can retroactively renounce the community property, and minor kids are not an issue once you renounce that property." Obviously they can choose the same counsel that put them into this arrangement, but due to our relationship with this prospect, they want our advice as well, knowing it does not carry the weight of a legal opinion.

We agree. The business owners are receiving counsel otherwise, so we will ask for their citations/support to that opinion. I have only disgreed with Derrin one time, this is not that time.

And the minor child issue? §1563(e)(5) lists spousal exceptions. §1563(e)(6) does not list exceptions for the kids.

For about a decade, a husband (100% owner) sponsored a qualified 401(k) for his office, covering his employees. For the last 8 years, the wife (100% owner) offered a SIMPLE for her business, covering her employees. 1. They have a minor child 2. They live in a community property state Under §1.414©-3(d)(6)(i), they have a problem. Can this be fixed by just renouncing community ownership in these two assets (the businesses)?

Anyone have a recommendation for a multiple employer document provider? Assuming 100 to 200 employers, with the option for employers to have a few provisions that vary from each other. The software we're looking at now can do this for only up to 20 employers, and it is a lot of manual work if one overall plan provision is changed affecting all employers.

We saw a case where the employer adopted PPA before the plan termination date, but since the official plan termination date was a few months before the start of the 2008 plan year, the PBGC (on audit) required the plan sponsor to ignore the language in that amendment even though the plan had a D letter. Since the employer had really messed up the plan in a much worse way than just that, they contributed the amount needed and they hope the IRS won't audit them as well.

I think there was a case sometime ago involving some airline plan where sham divorces occurred just to get the money out of the plan when no in-service option was available. I think the court ruled that they took impermissible distributions. That's probably not your situation, just FYI FWIW.

What if the plan is a cash balance plan?

What if goldilocks starts earning enough again to change back from NHCE to HCE? Assume the accrual rate is double for the HCE vs. the NHCE. Will the wolf declare that the plan has a 133 1/3 violation if she jumps up to that higher accrual formula?

Yep, the explanation is right there in the storybook - I mean, in the SPD. I am not sure the SPD defines clearly enough who/what an HCE is though - it has a reference to owners of the Employer and employees "whose compensation is in excess of of a level set by law".

I am looking at a document that defined a big accrual rate for the owner-employees, a middle-size accrual rate for each non-owner employee who meets the definition of a highly compensated employee for the determination year, and a wee little accrual rate for everyone else. When goldilocks receives lower compensation and thus changes from a non-owner HCE to a reguler NHCE, must she receive a 204(h) notice before her accrual formula can truly drop down to the wee little rate?

If you realize the plan failed 401a26 for the prior year, your amendment under -11(g) can pick and choose those who will be given additional benefits. If you begin doing this too often, the IRS may doubt that the plan has definitely determinable benefits. Because it's a DB plan, it has to have definitely determinable benefits in the first place, so the only way to pick and choose is by using the plan's written language.

SunGard (Corbel) has an EGTRRA DB prototype. It's worked well for those clients that don't need IDPs.

Assuming all other coverage, participation, and benefits testing requirements are met, you can prospectively exclude them. Be careful not to exclude them in a discriminatory manner, such as "all men over age 45 are excluded effective July 1, 2011" - you get the idea. These people with zeroes will still be counted in your denominators or in your people counts for 410(b) and 401(a)(26), so be sure that 410(b) and 401(a)(26) are satisfied.

Definitely better to exclude than to provide a $0 formula. If not excluded and if the plan is top heavy, they would be entitled to top heavy minimums, regardless of the zero formula right (assuming the plan is not frozen)?

Look at #2 on the list from the IRS link below and the explanation further down of how to fix it. The SIMPLE gets invalidated, as already stated, and this checklist makes an attempt to explain what happens to the SIMPLE, but it also leaves a lot of unanswered questions too. http://www.irs.gov/pub/irs-tege/simple__checklist.pdf

The HEART language is not required for the RAP that ended 4/30/2010 for plans on the 6-year cycle. The cumulative list for that RAP does not include HEART. A good-faith amendent for HEART was due 12/31/2010 and the RAP for making any minor fixes ends January 31, 2016. Did the document sponsor fail to adopt HEART on behalf of all employers using their prototype? Just out of curiosity, what example would you provide as an interim amendment failure? edit:typo

HEART was not required to be adopted by April 30, 2010, so such a failure cannot currently be considered as a non-amender failure. When a plan is restated for EGTRRA, it rolls up all of the past amendments into one nice restated plan and it also incorporates all required fixes to each of the good faith amendments that were adopted along the way. The amendments done in good-faith many times have some minor changes when the restatement occurs. A non-amender occurs when the that deadline is missed and so the plan cannot just make those minor fixes for those prior interim amendments in a retroactive fashion (without using VCP). Look at Appendix F, schedule 2. In part I it lists the possible language deadlines that could have been missed: ERISA TEFRA/DEFRA/REA TRA '86 GUST etc. Each had a remedial amendment period that has already ended. Any good-faith amendment language in place before the end of the RAP could have had minor fixes before the applicable RAP period ended. When 2008-50 was written, the EGTRRA RAP had not yet ended for plans in the six-year cycle, so you can see that EGTRRA is not on this list. Now look at Appendix F, schedule 1. Here you see a list of interim and optional law change language requirements. To follow my example regarding EGTRRA, you'll see that the EGTRRA interim amendment is on that list, because at the time 2008-50 was written, the EGTRRA language was a good-faith required amendment so far - the remedial amendment period was not over yet. Further down on the list is the more recent interim amendments - Final 401(k)/401(m) Regulations, FInal 415 regulations, etc. Items that were not around yet when 2008-50 was written should be added in the box, like the HEART language required under Notice 2010-15. Do you want the answer to be schedule 2? If so, you could certainly file schedule 2 and the IRS, upon review, would probably just make you fill out schedule 1 before they add their stamp of approval. Quick note added on edit: We are currently in another RAP period. Call it whatever you like, perhaps the PPA restatement period. It started 2-1-2011 and ends 1-31-2016 (or later depending on the deadline established by the IRS). This RAP period is applicable to HEART and it has not yet ended.

Schedule 2 is for a nonamender failure. Did the plan get restated for EGTRRA in time? That deadline was April 30, 2010. If it did not restate for EGTRRA by April 30, 2010, then it is a nonamender and must file schedule 2. As an example, a nonamender is like the recent plan our sales team handed over. They had not restated for TRA'86, they had not restated for GUST, and they did not restate for EGTRRA. They had missed 3 of the last RAPs. That is a nonamender. They will be submitted using appendix F, schedule 2. If the plan you describe has truly missed the HEART interim amendment deadline (which seems unlikely for a prototype plan, but possible), then Appendix F, schedule 1 will handle the issue.

It is my understanding that the EGTRRA RAP started in 2002. If this employer is using a 401(k)/PS/MP/Target prototype plan, the EGTRRA RAP ended on April 30, 2010.

Schedule 1 The remedial amendment period for the language required by HEART has not yet ended for your plan. Since your plan is on the 6-year cycle, then your RAP is no longer determined by your EIN. If the plan is on a prototype, the amendment should have been signed by the firm that sponsors the document. If that was done timely, then you do not have a failure.

Schedule 1. First, if the plan is a prototype or a volume submitter with language that allows the document sponsor/practitioner to amend the plan on behalf of the employer, then you might not have any failure at all (assuming the document sponsor/practitioner adopted an amendment for their document). You are correct that the HEART amendment is an interim amendment. Interim amendments and optional law change amendments which are adopted late are handled in Revenue Procedure 2008-50, Appendix F, Schedule 1. The IRS filing fee for a plan that only has an interim amendment failure is $375, regardless of the plan size.

According to a conversation recently with an IRS agent, a plan that only has an opinion letter is not considered as having a determination letter for purposes of completing Form 5300/5307.