John Feldt ERPA CPC QPA

Non-electing church plans are not subject to IRC Section 417.

In Revenue Procedure 2007-6, section 18: Notice that an application for an advance determination regarding the qualification of a plan that is described in §§ 401, 403(a), 409 and 4975(e)(7) and that is subject to § 410 is to be made must be given to all interested parties... ... Content of notice .03 The notice referred to in section 18.01 shall contain the following information: (1) A brief description identifying the class or classes of interested parties to whom the notice is addressed (e.g., all present employees of the employer, all present employees eligible to participate); (2) The name of the plan, the plan identification number, and the name of the plan administrator; (3) The name and taxpayer identification number of the applicant for a determination; (4) That an application for a determination as to the qualified status of the plan is to be made to the Service at the address in section 6.17, and stating whether the application relates to an initial qualification, a plan amendment, termination, or a partial termination; (5) A description of the class of employees eligible to participate under the plan; (6) Whether or not the Service has issued a previous determination as to the qualified status of the plan; (7) A statement that any person to whom the notice is addressed is entitled to submit, or request the Department of Labor to submit, to EP Determinations, a comment on the question of whether the plan meets the requirements of § 401 or 403(a); that two or more such persons may join in a single comment or request; and that if such persons request the Department of Labor to submit a comment and the Department of Labor declines to do so with respect to one or more matters raised in the request, the persons may still submit a comment to EP Determinations with respect to the matters on which the Department declines to comment. The Pension Benefit Guaranty Corporation (PBGC) may also submit comments. In every instance where there is either a final adverse termination or a distress termination, the Service formally notifies the PBGC for comments; (8) The specific dates by which a comment to EP Determinations or a request to the Department of Labor must be received in order to preserve the right of comment (see section 17 above); (9) The number of interested parties needed in order for the Department of Labor to comment; and (10) Except to the extent that the additional informational material required to be made available by sections 18.05 through 18.09 are included in the notice, a description of a reasonable procedure whereby such additional informational material will be available to interested parties (see section 18.04). (Examples of notices setting forth the above information, in a case in which the additional information required by sections 18.05 through 18.09 will be made available at places accessible to the interested parties, are set forth in the Exhibit attached to this revenue procedure.) This is what the Notice says, not that it helps much, I think your caveat sentence is a good idea.

We wondered the same thing last week, but ran out of time to find the answer. Lacking guidance, we sent the notice anyway. If I find more info, I'll re-post here.

Yes, I read that - let's not start that again!

That's ok, we'll disagree for now. If any of our clients end up in this situation, we'll certainly explain the conservative approach vs the less conservative approach and see what their CPA advises based on this language.

OK, now I see what I've done. I understand where I have confused the issue. 21% in DB, 10% in DC. How much is deductible? Alright, when applying 404(a)(7), the PPA states "this paragraph shall only apply to the extent that such contributions exceed 6 percent of the compensation" I want to stress "to the extent" - it must mean something, but guidance is pending that might clarify it. So, I take the somewhat less conservative approach (pending guidance), that I can ignore the first 6% (thus deduct it) and then only the rest of the DC money counts toward the 25% limit, because only the rest of the DC money is considered to be part of "to the extent". So, in your example, I would deduct the full 31%. We don't have any clients yet in this exact scenario (the DC clients with DBs have over 25% deductions for the DB), so I appreciate your persistence (and patience) with me. I'll add an edit to my previous post (above) to clarify the conservative vs less conservative approach. -Thanks!

OK. Here's the quote: "For clients where at least one participant is a "beneficiary" in both plans, we are taking this approach: 1. the minimum required contribution to the DB plan is deductible, plus 2. the employee deferrals in the 401(k) are ignored (i.e. deducted), plus 3. contributions up to the first 6% of eligible compensation for ER contributions in the DC plan (match, nonelective, etc.) are also ignored (thus deductible), plus 4. anything above 6% in the DC is deductible but only up to the point where DB + (the DC% above 6%) is equal to or less than 25% of elig comp For example, if the DB minimum was 18% of pay, and they somehow goofed by contributing 15% of pay to the DC plan, then the DB contibution is deductible, plus 6% of DC is ignored for purposes of 404(a)(7) under PPA 2006 (thus it's deductible), AND of the remaining 9% (DC money) only the 7% portion is deducted, leaving 2% that cannot be deducted. This becomes a 31% deduction plus a 2% nondeductible contribution." So, I need help seeing how this quote shows a change of position from my comment above, I really didn't intend a change. When I read the PPA, I see the DB minimum as deductible first, then I look to see how much room is left for deducting the Employer DC money, with the opinion that I can always deduct the first 6%. Suppose the DB minimum is 15% of eligible compensation. They can put a contribution of up to 10% Employer money in the DC plan, but any Employer DC money above that is not deductible - I think that's what I agreed to above. Perhaps this is being confused with this example: If the DB minimum was 23% of eligible compensation and if the DC plan wants to put in Employer money of 6% of eligible compensation then are ok, but any Employer DC money above that 6% might not deductible - staying under the 6% is what I call the conservative approach here. If the DB minimum was 23% of eligible compensation and if the DC plan wants to put in Employer money of 8% of eligible compensation then I think they are ok, but any Employer DC money above that 8% is not deductible - this is what I call the less conservative approach, and guidance may clear this up some day.

I agree with AndyH except that I would go for it with the 6% and deduct 6% in the DC, not just 4%, even though it is not entirely clear yet, I'd take the risk.

AndyH and SoCal - I agree, well, that's the approach we have taken so far, absent any written guidance to the contrary.

"Years" beginning after 12/31/2007. PPA section 801: PPA 801 (b) Exception From Limitation on Deduction Where Combination of Defined Contribution and Defined Benefit Plans- Section 404(a)(7)© of such Code, as amended by this Act, is amended by adding at the end the following new clause: `(iv) GUARANTEED PLANS- In applying this paragraph, any single-employer plan covered under section 4021 of the Employee Retirement Income Security Act of 1974 shall not be taken into account.'. ... (e) Effective Dates- (1) IN GENERAL- Except as provided in paragraph (2), the amendments made by this section shall apply to years beginning after December 31, 2007. http://fuguerre.googlepages.com/PPA.htm#ppa801 Also, as you may be aware, you can currently ignore 404(a)(7) if the overall Employer contribution in the DC plan does not exceed 6% of compensation, regardless of whether or not the plan is subject to PBGC, that's in 803(a).

Agreed. Use this link from the IRS site, they update it fairly timely: http://www.irs.gov/retirement/article/0,,id=96450,00.html

We have also filed the 500 before the termination date successfully. In one instance, we filed the 500, provided the Notice of Plan Benefits, and provided the intent to terminate all at the same time, then provided the distribution forms to the participants 60 days later, and the plan was paid out approx 30 days after that. A bit stressful, but do-able.

We started using the CCH online version of the answer books last year. We don't subscribe to all of the answer books online, just a dozen, but that keeps us up-to-date at a much lower price than buying hardbacks. I especially like the hyperlinks embedded in their answers, so I can read the code or reg myself by just clicking on the link. We still subscribe to the ERISA outline as well (books and the CD).

Mike, In this example the original plan effective date is 1-1-2003 (as shown in the original post). Based on that, I still believe the restatement deadline is 01/31/2007, not 2012. I think paperchase is confusing the restatement effective date with the plan's original effective date. The orginal effective date of the plan is 1-1-2003, will the restatement effective date be 1-1-2006?

No replies? Well, I'm going to guess that it should be effective at the beginning of the 2006 plan year, but I'm concerned that the EGTRRA restatement portion has the RMD rules for DB plans perhaps should be effective earlier than that? Maybe someone will take a stab at this question now?

As for the IRS, whenever we include a contribution receivable on the Form 5310, we attach an explanation stating that the plan was underfunded by this amount as of the date shown on the 5310 and that the plan sponsor has made a commitment to contribute whatever amount is necessary to satisfy all plan liabilities at the time actual distributions occur, should the plan still be under funded at that time. We’ve had no problems with the IRS on that so far.

Yes, I was not specific enough - A target plan that does not use a target safe harbor formula is not eligible for the 6-year cycle. But, you are correct that the target plans that use the target safe harbor formulas can and will be done (if any still exist) in a pre-approved prototype, thus using the 6-year cycle. Yes, it does appear to lock you into that provider's document, hopefully you've chosen wisely when you switched to their pre-approved plan. - Thanks!

I enjoyed the arguments about the lookback year for compensation for determining who's an HCE in the next year, I thought it provided lot's of laughs! Started by non-tax pro on March 23, 2006 and had 8 pages and ended in July. http://benefitslink.com/boards/index.php?s...l=lookback+year

Such a simple question... We recommend that you sign the form; it is only helpful to do so. Unless you are eligible for the 6-year cycle, your plan document must be restated for EGTRRA by the deadline imposed by the 5-year cycle deadline. The 5-year cycle deadlines are as follows: Sponsor's EIN ends in 1 or 6, cycle A, restatement deadline = 01/31/2007 Sponsor's EIN ends in 2 or 7, cycle A, restatement deadline = 01/31/2008 Sponsor's EIN ends in 3 or 8, cycle A, restatement deadline = 01/31/2009 Sponsor's EIN ends in 4 or 9, cycle A, restatement deadline = 01/31/2010 Sponsor's EIN ends in 5 or 0, cycle A, restatement deadline = 01/31/2011 You would then have to restate every 5 years, unless you become eligible for the 6-year cycle The 6 year cycle: 1. The Form 8905 means you intend to adopt a "pre-approved" (a prototype or a volume submitter plan) plan when you restate your plan document for EGTRRA. By signing this form, your plan would be on the 6-year restatement cycle. Your next plan document restatement (for EGTRRA) would likely by required in 2009 or 2010, maybe as late as 2011 (the IRS will announce that final deadline when they are good and ready). You will then be required to restate your document every 6 years as long as your plan continues as a pre-approved plan. 2. If your plan document is already on a pre-approved plan and that plan document was adopted (signed) before February 17, 2005 (with an effective date that is before 2-17-2005), then you are considered a "prior adopter" and you are not required to sign the Form 8905. However, for convenience, the Form 8905 makes it easy for you to prove to the IRS (if they ever ask) that you are entitled to the extended plan document restatement deadline. It is only one page long. If you are ever asked to prove that you are a "prior adopted" without the Form 8905, you would probably have to submit your entire plan document. 3. If your EIN ends in a 1 or 6 and you are not on a pre-approved plan now, you could restate to a pre-approved plan by January 31, 2007 and be considered a "new adopter". This would also entitle you to the extended restatement deadline, unless your plan was originally adopted (signed) after February 16, 2005 as mentioned earlier. Similarly for 2 or 7 with a 01/31/2008 deadline and so on. If your EIN ends in a 5 or a zero, you really don't need to sign the Form 8905 for purposes of extending your deadline, but only as a matter of convenience (mentioned earlier). The six year cycle allows pre-approved plan sponsors to restate their document in 2009/2010/2011 (the IRS will announce the deadline) and the next restatement deadline will be sometime in 2015/2016/2017. Of course, certain plan features will not allow your plan to be on the 6-year cycle, such as ESOP provisions as one example. So if you have one of those features (or add them) you are no longer on the 6 year cycle and thus the Form 8905 is meaningless. Also, if you are a cash balance plan, a non-electing church plan, a multiemployer union plan, a 412(i) plan, or a Target Benefit plan, then you are in the 5-year cycle.

This client adopted a new cash balance plan 1-1-2003. Their EIN ends in 6. Is January 31, 2007 the deadline for signing an EGTRRA restated document (I presume yes). Is the Deadline for submitting the EGTRRA restated document for a determination letter also January 31, 2007 (I presume yes). What is the retroactive effective date supposed to be for this restatement?

Is Sungard aware? What section is it in?

Yikes! Sorry mjb, that was posted for levity sake only, my apologies to you. (obviously a benefits board like this needs no disclosure)

According to the IRS, yes - including extensions to the tax return - as long as a deferral election is in place by the end of the year. BUT, if the plan is subject to ERISA, then according to the DOL, the deposit must be made as soon as the amount can be reasonably segregated from the assets. For example (I'll use a partnership), the DOL feels that a Partner's deferral election should be done by the end of January (if it's a calendar year tax year). In the preamble to 29 CFR Part 2510 they stated that in their view, the partners' deferrals become plan assets at the earliest date they can be segregated from general assets after those amounts would have otherwise been distributed to the partner. It seems possible that a partner's or sole proprietor's deferrals could be deposited at the same time the tax return is filed, but I've seen no official statement from the DOL for that. NOTICE: Any tax advice expressed in this communication is not intended to be used, and cannot be used, for the purpose of avoiding penalties imposed on the taxpayer by any government taxing authority or agency. If any such tax advice is made available to any person or party other than the party to whom the advice was originally directed, then such advice is to be considered as being delivered to support the promotion or marketing of the transaction or matter discussed or referenced. Each taxpayer should seek specific tax advice based on the taxpayer’s particular circumstances from an independent tax advisor.

Yes, it is correct. The top paid 25 HCEs of all time (must be HCE).

Being considered an employee is dependent on the relationship with the Employer. If the Employer-Employee relationship has truly ended in 2006, then you are required begin making RMD's by April 1, 2007. Perhaps the employer can keep him "employed" on some sort of "leave" and not sever the relationship with a hard date of termination.