namealreadyinuse

Any idea why these aren't in today's Federal Register? Are they scheduled to be published on April 17th or something? Does anyone know if changes (typos, numbering, etc.) are ever made after the advance release?

It makes sense to me. The money is the participant's during life and she could take it as salary (401(k)), defer it, and take a distribution if she wants. There is no spousal consent for loans, hardships, dists, election changes, etc. When she dies, it should go to her husband unless the husband has consented to it going somewhere else. That seems logical to me.

If there is no LDY requirement, it was probably too late as soon as an employee in the less profitable group earned 500 hours of service, so December 31, probably wasn't relevant, fyi. Couldn't they add an entirely new contribution type, like profit sharing before March 15th, only for the favored group?

He could be in the clear on those facts, but we need to know more. Does he perform services for either ot both? Any options or buy out provisions? The "completely unrelated" person does not have any other business relationships in common with the client? The S-corp and the C-corp have no relations or dealings at all (the affiliated service group question)?

Non-J&S, plan and SPD silent. Can we allow a participant to specify a dollar amount to a beneficiary with the remainder to another beneficiary. It sounds unusual, but is it legally permitted?

It sounds like the timing of these elections will be important. The deferral elections will have to be made before the service period. Also, your statement that they are non-elective doesn't make sense considering the first sentence. The second observation is that you don't have to impose subject the funds to a substantial risk of forfeiture. It can be vested unless this is a 457(f) plan. In fact, the Treasury does not believe that elective salary deferrals will ever be made subject to a [legitimate] substantial risk of forfeiture. It sounds like you are adding complexity for no tax reason.

Treasury is on record as saying they are now waiting on release of the 415 regs, so nothing will happen until then.

Does the plan require "immediate and heavy" need? You should require representations from the participant that match the plan's requirements in addition to just documentation of the need.

There is no need for the short-term deferral rule if you are already outside of 409A. Let them be exercisable for 20 years . . .

Yes. They go dormant after two or three years. There is an old (old, old maybe) thread on reactivating them I believe in here somewhere. . .

Is it otherwise eligible for the exception (common stock, FMV, etc.)? You are describing the design of 90% of options out there: vesting on a future schedule (in 2010 or on death) and exercisable for a period after vesting (12 months). What am I missing that is controversial?

Are we all sure that MERPs can reimburse insurance premiums?

For 2006, the maximum HSA contribution still had to be prorated if a participant was not eligible under an HDHP for the full year. Does anyonw know if the age 55 catch up contribution has to be prorated as well?

Oh, yeah - I forgot to mind my p's and n's. Sorry. Carry on . . .

Also, why are you terminating? If all employees are gone, they probably have an independent right for a distribution that you may not be able (check the document) to hold up.

Subchapter S? When did they S? When did they 1042?

Search for posts on restorative payments. IMHO, they would only be are doing it to cover their fiduciary butts.

Lots of forfeitures. Are the rules for reimbursing the sponsor/administrator for expenses from FSA/DCAP forfeitures are strict as the DOL rules for retirement plan reimbursements (i.e. direct expenses only and not overhead) or is there more flexibility?

If the family HDHP deductible applies, they get the family HSA. That is the way I remember the rule.

I don't think that Roth IRAs can ever be rolled into a Roth 401(k). Roth 401(k)s can go to Roth 401(k)s OR Roth IRAs, but not the other way around.

Do the employees have a contractual right to payment in the event of a "disability" or "separation" under the terms of the old plan that cannot be changed? If so, you are probably violating 409A. The plan will have to be amended to comply with 409A. Several provisions that were not approved or contemplated originally will end up being added. The amendments will have to be consistent with the administration of the plan during the transition period and with 409A. The CIC provision questioned in the original post meets both requirements.

(3)

You asked about amendments during the transition period. Before 2008, employers are required to adopt 409A compliant plans. Those are going to have new provisions that are going to have to be retro effective. That is where you add your CIC provision under the theory that it is how the employer decided to comply with 409A and the plan has been administered as if that provision was in place since 2005. After the transition period, it will primarily be a contract question about how amendments to the 409A plan are to be made - with the overlying 409A restrictions to be considered as well. You could probably add a CIC provision then as well depending on who the service provider is, but it will probably raise the change in election issues if it relates to old money.

This is the approach to take, but only during the transition period. Sometime before 12/31/07, they are going to have to amend the plan retro back to 1/1/05 to comply with 409A. That plan can only have 409A distribution events and will have to match with how they have administered since 1/1/05. All they have to do is put the CIC language in it for all. This is just an employer restatement issue, not an employee election change issue, so you don't have to worry about the anti-accelaration prohibition.

You are on the right track I guess. We have gone back to ERISA before, but always had an initial plan document. I think that is your problem here. I would definitely file anonymous.