Peter Gulia

Even if the plan's administrator might have acted under a good faith mistake of fact, hasn't too much time passed?

austin3515, one way you might lower your liability risks on what your client asked you is to persuade your client to file a Form 5307 to request the Internal Revenue Service's determination that, even with a minor modification from the volume-submitter documents, the plan is tax-qualified in form. The $300 user fee and a fee for your time on the Form 5307 submission together might be less expensive than your written advice otherwise might be.

If you're providing for several trusts and trustees under one plan, does your prototype or volume-submitter adoption agreement allow enough choice to specify the details?

There is another reason to consider the design that Bird describes - a separate plan and trust for each individual who will serve as trustee for just the one participant's account. ERISA section 405 co-fiduciary responsibility applies only regarding fiduciaries who serve the same plan (or trust). Also, an advantage or disadvantage (turning on one's perspectives and tastes) is that a plan for which the only participant is also his or her employer might be governed by State law rather than ERISA. While a separate plan and trust for the founder (if he is not his employer) might be governed by ERISA, the one participant is the one who can enforce the trustee's responsibility.

FWIW, I think a plan design of each-participant-is-a-trustee is not contrary to ERISA's Title I. Before accepting a trusteeship, a participant might consider that a fiduciary who has knowledge of another fiduciary's breach has some responsibility to prevent, correct, or remedy a co-fiduciary's breach.

If a TPA prepares a draft Form 5500 that answers the prohibited-transaction query Yes and the plan's administrator changes the answer to No, does the non-fiduciary TPA have any remaining responsibility?

austin3515, a few ideas for you to think about: Staff of the Employee Benefits Security Administration have unofficially expressed a distaste for a plan design under which each participant would serve as trustee of his or her account. See, for example, Q&A 10 in http://www.americanbar.org/content/dam/aba/migrated/jceb/2007/2007dol.authcheckdam.pdf Consider whether anything in the plan, a trust or subtrust, or an allocation of responsibilities would lead the Internal Revenue Service to question whether the plan is “established” or “maintained” by the employer. Consider whether a change in the plan or trust documents is one that calls for refreshing the plan’s IRS determination letter. If one or more of the participants permitted to avoid having another person serve as trustee for his or her account is a highly-compensated employee, and the plan denies this opportunity to a nonhighly-compensated employee, consider whether the circumstances of these trusteeships involve a feature that is a subject of a nondiscrimination rule, whether under IRC § 401(a)(4) or something else. If the fiduciaries decide (or the plan’s sponsor decides) to allow what’s asked, do a thorough criminal-background check on the participant to meet ERISA section 411.

pookah, is it possible for the employer to meet its purpose by providing a differential wage for those of its employees who are on military absence and applying the plan's (current or amended) contribution and allocation provisions counting the differential wages?

While I respect the desire to find a fully thought-through answer, consider also a practical question: Which better serves the service-provider business: Restraining an employer's desire to pay a plan-amendment expense from the plan's assets (so that the service provider can avoid blame for having "allowed" its customer to give an instruction for what later might turn out to have been an unwise decision)? Accepting the fiduciary's decision to pay a plan-amendment expense from the plan's assets (so that the employer does not perceive the service provider as imposing the expense on the employer)?

When the employer established these plan provisions, did it also receive a practitioner's written opinion or advice that the coverage and non-discrimination results are those the employer desired? If so, might the employer choose to reveal that writing to the auditor?

K2retire, are you seeing recordkeepers approve a loan or distribution by following a procedure adopted by the plan's administrator? Or are you seeing a recordkeeper act on its own without following such a procedure?

Recently, the Employee Benefits Security Administration and the Internal Revenue Service released guidance that makes it feasible to use an annuity as an aspect of a target-year investment fund. Has any investment manager announced a product?

Belgarath's question is apt. In your experience, does an insurance company or trust company respect an employer's choice not to be involved (beyond furnishing factual information in the employer's control) in claims decisions? And let's ask the flip-side question about who relents: If an employer refuses to decide a claim, how often does an insurance company or trust company back down and decide something without an employer's instruction?

ESOP Guy, thank you for helping me. Independent appraiser, independent fiduciary, and independent counsel for the independent fiduciary; that's strongest.

We recognize that an employer seeking a correction regarding the plan would have different circumstances. But what about the one individual seeking a closing agreement only for herself?

Imagine the taxpayer engages a lawyer to propose (without revealing the client's identity) a closing agreement with these provisions: (1) for all back years, the taxpayer is treated as if she met her minimum-distribution requirements from her 403(b)s; (2) the taxpayer pays a sanction in some modest amount (perhaps $100 x the number of affected years, or $1,000). Do you think the Internal Revenue Service would accept such an offer?

ESOP Guy, when you say most examinations end with no DoL enforcement action, am I right in guessing that this refers to examinations that you know about (or have heard about from practitioner friends)? One imagines that other plans, about which an employer or fiduciary might have been less well advised than what you or your friends would do, could have a higher likelihood of unwelcome outcomes. For a situation in which a top executive sold his or her stock to a plan that was long established, what does an EBSA examiner look for to find that the plan didn't overpay?

Why not just amend the plan's governing document each time the employer declares a contribution and decides how to allocate it?

As others here have noted, it seems that the nuances of defining normal retirement age might matter if the employer might hire (or rehire) a middle-age person who might reach the relevant age without having completed enough vesting service for a fully vested benefit.

Without meaning to diminish a discussion about how text choices can affect provisions in a way that a document's adopter might not understand (and might not intend): If a 401(k) plan's terms permit a retirement distribution before a participant's normal retirement age and do not require a distribution until a participant's age 70-1/2 (or even later if a non-owner employee has not ended her work for the employer), is it likely that a participant's normal retirement age triggers only an election (or deemed election) to delay a distribution? Is there anything else that turns on the happening or non-occurrence of a participant's normal retirement age?

Which States have a State income tax treatment for Roth 403(b) amounts that differs from the Federal income tax treatment?

Which States have a State income tax treatment for Roth 401(k) amounts that differs from the Federal income tax treatment?

KJohnson, thank you! In addition to anti-assignment provisions, is anyone seeing a health plan impose restrictions or conditions on who may act as a claimant's representative?

I continue to care about this issue because to me it seems strange to deny an otherwise available tax treatment merely because a corporation buys individual insurance rather than group insurance. It seems especially harsh if State insurance law makes it impossible to buy group insurance (for example, if shareholder-employees don't count in defining whether a group exists). I haven't analyzed how the tax law sorts out because the circumstances in which this problem happens typically don't have enough money at risk that a client would pay me to do the necessary research (and I'm too poor to use the time just to satisfy my curiosity).

Is the natural impulse of insurance companies to push things into standardized boxes another reason for an employer that has 50 full-time-equivalent employees to abandon health insurance and go "self-funded"?