namealreadyinuse

Haven't looked it up, but doesn't the 3% NEC automatically satisfy TH. Isn't your question whether the after-tax requires you to ACP?

Sorry, but it is still not clear what your Q is. Are distrubtions being made from the ESOP (why actives) and being put back to the company? Is the company buying from participant accounts (from the ESOP itself really)? Or is the company just buying from prior distributees who happen to want to sell on the market now?

You are looking at the elective transfer rules and I would stick with just doing a involuntary spin off of those accounts if you really want to do it.

Section 12.03 and Appen. F of the version released in the IRB does not contain that language. It does not make sense to apply it to each year when the regular fee starts at $750 to reach all the way back to ERISA. I would disregard it.

I pitty the fool who gets a distribution in the next five years. Is TOTALLY independent? (prohibited transaction was the first thing I thought of).

Client failed to execute proposed amendment referenced in determination letter within 90 days. Propose to file as nonamender, but want to avoid determination letter application. The amendment involved was a model amendment (which would normally not require determination letter application with the VCP). Will it stick?

At one point I am sure that the Treasury mentioned that retiree medical presents issues under 409A. Is that dead yet?

The accounting issue is GASB 45, right? Not proposed, though.

Smells real bad from here and we don't even know anything about it.

Why should you get paid before other creditors anyway? This is exactly how the tax laws are supposed to work.

We specify that payments will be made on regular payroll dates. Is ignoring preamble really good faith compliance?

The plan, loan procedures, and loan note control, but by paying the "remaining balance" balance to the beneficiary, the loan is paid off, isn't it? The answer is going to be that the loan is offset (paid off) against the account and beneficiary gets leftover.

It has to be "cash or deferred", not "deferred or deferred," right?

The loan note is just antoher asset, so you would have to amend the plan to allow partial distributions. You might not be able to limit it to loans, though (especially for a HCE) and then you are in a spot where you are making distributions before your valuation date. You have said they don't want to change distribution procedures and they don't want to change loan procedures, so he is out of luck. That is ok.

Ok, "agreement" or whatever. It cant be binding if you have the right to change the rules retroactively at any time.

I think that UBIT references relate to the debt financing. I hope this is a QP and not an IRA, but you don't specify.

The "First Year of Eligiblity Rule" only permits elections to "apply to compensation with respect to services perfored after the election." [Preamble]. I understand that the RS is not 409A, but aren't the services perfored under the RS agreement to date the services performed before the election under this rule? Isn't the bottom line that deferral of RS into a SERP CAN"T be ok? Is it really even unclear and controversial?

Assuming the horrible situation where a participant has invested her assets in investments that become totally worthless, how do you document the distribution when they terminate employment? The plan does not provide for in-kind distributions, but we are conisdering it if that is the answer. We need to document that the account is closed out somehow, but don't think a $0 value distribution notice and distribuiton request form works at all. We know that there could (will?) be litigation and am only focused on procedural prudence at this point. We know that there is no rollover right for distributions below $200, so is that our "out" for not documenting a distribution?

Even if it is initial eligiblity for the SERP, I don't think the deferral can be for compensation attributable to prior service. The 83 exception is certainly not absolute. Regs say there is no deferral of comp "merely because the value of the property is not includible in income in the year of receipt by reason of the property being substantially nonvested" under 83. I definitely wouldn't try do further defer by extending the risk of forfeiture, for example. However, in the "promises to transfer property" section it does say that the vesting of substantially nonvested property subject to section 83 may be treated as a payment for purposes section 409A." This sounds like it would allow you to treat it a payment election change somehow, but I don't understand how that works if you are not even under 409A at the time.

If you are outside of 409A, then the analysis is for initial deferral elections and not election changes, correct? This sounds too late to be an initial deferral election unless you play with the initial eligiblity rules and the SERP is new. Anyway, I don't think it works unless the restricted stock is 409A and not relying on the 83 exception. Doesn't the 83 exception apply only where there are no additional features for the deferral of compensation? The ability to roll risk of forfeiture, change the risk of forfeiture date, or defer into a SERP sounds to me like an additional feature for the deferral of comp.

Also, I don't think you should (can) submit signed documents as nonamenders. The VCP is asking the IRS for permission to sign. Also, they could conceivably ask for an obscure change although if there is no determination letter application, it would seem remote. How does everyone else file nonamender documents: executed or proposed?

The real key is what they did administratively. For example, one amendment you are adopting is repeal of multiple use. If they tested using multiple use, you have to correct the operation of the plan. That probably involves monetary correction and earnings and could involve another VCP correction and new sanction. It may be a bad example, but that is the problem with nonamenders most of the time. You may avoid a determination letter if you are using prototype documents like you can for model amendments, but if you can't the IRS user fee is another expense. Finally, are you comparing the saction for the old program or new program? Which is cheaper for you. On Septermber 1st, I belive you are required to use the new system.

I would say that there is no explicit rules that allow any retroactive welfare plan amendments. There is no 401(b) or remedial amendment period concept. I think is is just a contract and it is difficult to make any contract binding that is retroactive. Practically, however, the answer has to depend on what you are trying to do. If you are trying to enforce a change, I would say it is difficult to do. But, for example, if you haven't documented a required amendment, though, you really have to make it retroactive as long as it is consistent with the administration of the plan. Otherwise, there is no way to fix the problem. For example, there are thousands of welfare / FSA plans out there that do not have updated claims procedures for the DOL regs that came out years ago. Is there any way to fix that that other than a retroactive effective date on the amendment? It is really your only choice. I would say that you shouldn't adopt a self-insured healt plan retroactively, though.

A plaintiff's attorney is going to be hard to find for this claim unless the employer is a big outfit (doesn't sound like it). You should call the local DOL immediately. They respond to participant complaints.

The proposed assessed payment is off the charts. Anybody car to share experiences or guidelines on how negotiable these are?