Peter Gulia

That someone said “[I’m] about to get married” does not necessarily mean he did not already have a spouse. He might have colloquially said “get married” to refer to a ceremony, rather than making the legal status of spouses. An employee-benefit plan’s administrator might want its lawyers’ advice about whether it might be unwise to ask this individual for proof not asked of others. Consider that even a fleeting presence in a nation, state, or other jurisdiction that at the time recognized common-law marriage could have resulted in a couple’s marriage. What makes a common-law marriage is that each party must be legally capable of making a marriage contract and each must state one’s present agreement to assume the relationship of spouses. That statement need not be in writing, it can be oral. Every US State recognizes as a marriage a common-law marriage made in a jurisdiction where such a marriage is legally recognized. For example, California Family Code § 308 states: “A marriage contracted outside this state that would be valid by laws of the jurisdiction in which the marriage was contracted is valid in California.” Even a weekend or one-day trip can result in a marriage. For example, Tornese v. Tornese, 233 App. Div. 2d 316, 649 N.Y.S.2d 177, 1996 N.Y. App. Div. LEXIS 11623 (N.Y. App. Div. 1996) (“[O]n a weekend trip to Pennsylvania in 1976, [John] told [Helen], . . . , that their divorce about two months earlier had been a mistake, [Helen] agreed, and the parties decided that they were married.”). WalkingAssets, I don’t suggest that the couple you describe are spouses; rather, I suggest you might not know that they’re not. This is not advice to anyone.

I’m very glad you responded, and with the useful information you added. It’s information I otherwise would lack because the last time I had responsibility to get an IRS opinion or determination letter on the form of a plan’s documents was in the 1990s. And your story reinforces the point that there can be, and sometimes need to be, different defined terms for different provisions.

Before too hastily assuming that the plan was administered other than according to the written plan’s provisions, consider looking carefully to find all possibly relevant writings and evaluating whether some writings amended what otherwise would be “the” plan documents. Although ERISA calls for a plan to be written, it need not be one fully integrated exclusive writing. And nothing in ERISA commands that an amendment be made with the same formality as the writing the amendment would change. Several courts’ decisions observe that a written plan might comprise several formal and informal writings. Many plans do not restrict what kind of writing amends a plan. (One would read, carefully, the documents governing the plan to confirm the absence of a restriction that would make a less-formal writing insufficient to amend the plan.) For example, a written agreement with a default IRA provider might state that the plan provides an involuntary distribution of a balance that’s no more than $5,000 (or the applicable limit on an involuntary distribution before the participant’s normal retirement age). Such an agreement might have been signed, ratified, or otherwise adopted by a person who or that had authority to amend the plan. Likewise, communications to participants might have stated the cash-out provision, and might have been signed, ratified, or otherwise adopted by a person who or that had authority to amend the plan. A signature can be using on or in a writing a person’s name, including a corporation’s or other organization’s name, with an intent to adopt the writing. Under Federal law, an electronic signature can be as simple as sending an email with the sender’s intent to adopt the text the email delivers. A plan sponsor might want its lawyers’ reading and advice about whether the sponsor amended the plan to change the involuntary-distribution threshold, and (if the sponsor did) when the amendment took effect. This is not advice to anyone.

What CuseFan describes seems logically consistent with some possibilities and assumptions my posts in this thread mention.

The second page of a Form 5500 report shows the plan’s administrator’s name, address, and telephone number. The reports are readily available at https://www.efast.dol.gov/5500Search/. To avoid a list of 593 reports for which the “Plan Name” begins with FedEx, use the webpage’s search filters. Further, you might ask whether FedEx or Vanguard outsources reviews of domestic-relations orders.

R Griffith, thank you for the point about managed accounts.

If the plan sponsor is not in a chapter 7 liquidation bankruptcy, a termination administrator is a qualified termination administrator “only if: (1) It is eligible to serve as a trustee or issuer of an [IRA], and (2) It holds assets of the plan that is found abandoned [under the QTA rule].” 29 C.F.R. § 2578.1(g) https://www.ecfr.gov/current/title-29/part-2578#p-2578.1(g). Otherwise, a Federal court appoints an EBSA-selected cleanup fiduciary when no one applies to serve as a QTA (or none is eligible), no bankruptcy trustee or insolvency receiver serves, and the Secretary of Labor, acting by the Solicitor of Labor, brings a civil action. (The Labor department makes policy and strategic decisions about which situations to pursue, and which to ignore.) A District Judge typically follows Labor’s suggestion on who should serve as a cleanup fiduciary. Some trust or insurance companies volunteer to serve as a qualified termination administrator; some don’t. You might be in luck; Voya serves. https://www.askebsa.dol.gov/AbandonedPlanSearch/UI/QTASearchResults.aspx If you know the plan’s administrator’s contact at Voya, consider starting there.

Even if an adjunct teaches in every semester, an adjunct who teaches one course each semester, has no student-counseling obligation beyond her one course, has no administrative obligation beyond grading her course’s students, has no faculty-committees obligation, and has no scholarly-publishing obligation seems unlikely to be credited with 1,000 hours of service in a year. Universities have a range of conventions for estimating an adjunct’s hours of service. Just to show one: To discern for the excise tax on not providing health coverage whether an employee has 30 hours a week or 130 hours a month, some employers use this: “[O]ne (but not the only) method that is reasonable for this purpose would credit an adjunct faculty member of an institution of higher education with (a) 2¼ hours of service (representing a combination of teaching or classroom time and time performing related tasks such as class preparation and grading of examinations or papers) per week for each hour of teaching or classroom time (in other words, in addition to crediting an hour of service for each hour teaching in the classroom, this method would credit an additional 1¼ hours for activities such as class preparation and grading) and, separately, (b) an hour of service per week for each additional hour outside of the classroom the faculty member spends performing duties he or she is required to perform (such as required office hours or required attendance at faculty meetings).” Page 8552, left column https://www.govinfo.gov/content/pkg/FR-2014-02-12/pdf/2014-03082.pdf Assume a 15-week semester and that an adjunct teaches in both semesters of a two-semester academic year. Assume an adjunct is expected during a semester to be “reasonably available” to counsel her students. That’s 30 hours under the (b) element of the paragraph quoted above. To meet 970 hours for the (a) element, a teacher would need 431 hours of classroom time. Even an adjunct who has taught regularly for many years might never have had a 12-month period with 1,000 hours of service.

The employer might fear enforcement from workers and organized labor even more than enforcement by the US Labor department’s Employee Benefits Security Administration. The employer might want its bankruptcy lawyer’s advice about which debts are nondischargeable. Each of the employer’s owners and executives might want one’s lawyer’s advice about the extent to which the individual might be personally liable regarding the employer’s debts. This is not advice to anyone.

And when one reads all plan and trust documents, be on the lookout for provisions that might be invalid, or that might not have the effect a reader might discern from an isolated reading. “[A] provision in an agreement or instrument which purports to relieve a fiduciary from responsibility or liability for any responsibility, obligation, or duty under this part [ERISA §§ 401-414] shall be void as against public policy.” ERISA § 410(a), 29 U.S.C. § 1110(a). An ERISA-governed plan’s trustee cannot escape an ERISA-provided responsibility, including a § 405(a) responsibility regarding a cotrustee’s, administrator’s, or other fiduciary’s breach.

Depending on the facts, consider some opportunities a plan’s sponsor or administrator might evaluate (with its lawyer’s advice): Are regular faculty represented in collective bargaining? Are some nonfaculty employees represented? Are adjunct faculty represented or unrepresented (or some of each)? Is distinct testing regarding an unrepresented group available? If so, would it help? Does the plan uniformly exclude from matching contributions an instructor who is also a student? Does the plan uniformly provide that the matching contribution is not allocated for a year (however defined or measured) in which the employee lacks a specified number of hours of service? What approximation method does the university use to count an adjunct’s hours of service? Example: At Baker University, a full-time assistant professor must teach courses totaling seven credits in each of an academic year’s two semesters. Alan Adjunct teaches one three-credit course in each of an academic year’s two semesters. Does the 6/14 ratio suggest that Alan works less than half-time? See 26 C.F.R. § 1.403(b)-4(e)(6) (“For example, a plan may provide for a university professor’s work to be measured by the number of courses taught during an annual work period in any case in which that individual’s work assignment is generally based on a specified number of courses to be taught.”). Do many adjuncts “normally work less than 20 hours per week”? I.R.C. (26 U.S.C.) § 403(b)(12)(A). Is an adjunct who has no current appointment severed from employment? (A university’s appointment of an adjunct professor, lecturer, or instructor as adjunct faculty typically is for only one specified semester, with the university having no further obligation. Even for a well-liked teacher, there are lots of ways one might not get a next appointment.) Consider 26 C.F.R. § 1.403(b)-2(b)(19) (defining severance from employment by reference to § 401(k)’s rule); § 1.401(k)-1(d)(2) (“An employee has a severance from employment when the employee ceases to be an employee of the employer maintaining the plan.”). If for a whole year to be tested an adjunct had zero wages, is it reasonable to treat such an adjunct as having been severed from employment before the year began? For a § 403(b) plan, recognize that § 401(a)(4), § 401(a)(5), § 401(a)(17), § 401(a)(26), § 401(m), and § 410(b) apply only regarding “contributions NOT made pursuant to a salary reduction agreement[.]” Internal Revenue Code of 1986 (26 U.S.C.) § 403(b)(12)(A)(i). This is not advice to anyone.

The § 72(t)(2)(A)(v) exception from a too-early tax applies to a distribution “made to [the participant] after separation from service after attainment of age 55[.]” http://uscode.house.gov/view.xhtml?req=(title:26 section:72 edition:prelim) OR (granuleid:USC-prelim-title26-section72)&f=treesort&edition=prelim&num=0&jumpTo=true The IRS recognizes a practical tolerance about the age-55 condition: “A distribution to [a participant] from a qualified plan will be treated as within section 72(t)(2)(A)(v) if (i) it is made after the [participant] has separated from service for the employer maintaining the plan and (ii) such separation from service occurred during or after the calendar year in which the employee attained age 55.” IRS, Employee Plans-Miscellaneous Tax Reform Changes, Notice 1987-13, 1987-1 C.B. 432, at § D, Q&A-20. But the tolerance about the age-55 condition does not change the separation-from-service condition. This is not advice to anyone.

Many individual-account retirement plans don’t allow an annuity as a form of distribution. Of employment-based individual-account retirement plans that allow an annuity, the rates are not sex-distinct. Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (July 6, 1983). Likewise, factors to determine other-than-an-annuity Internal Revenue Code § 401(a)(9) minimum-distribution amounts are not sex-distinct. See 26 C.F.R. § 1.401(a)(9)-9 (GPO eCFR as of Mar. 31, 2025), https://www.ecfr.gov/current/title-26/section-1.401(a)(9)-9.

Even if the trust agreement allows each trustee to act distinctly: If the plan is ERISA-governed, consider: ERISA § 405(b) about cotrustess; ERISA § 405(c) about allocations of responsibilities between and among fiduciaries; ERISA § 405(d) about investment managers; ERISA § 405(a) about a fiduciary’s responsibility regarding another fiduciary’s breach. ERISA § 405, 29 U.S.C. § 1105 http://uscode.house.gov/view.xhtml?req=(title:29 section:1105 edition:prelim) OR (granuleid:USC-prelim-title29-section1105)&f=treesort&edition=prelim&num=0&jumpTo=true If the plan is not ERISA-governed, consider responsibilities of cotrustees and other fiduciary relations under each State’s law that governs the trust or an agreement. This is not advice to anyone.

The order’s § 4(a)(1)(i) directs the “Secretary of the Treasury [to] review and, as appropriate, revise procedures for granting limited exceptions where electronic payment and collection methods are not feasible, including exceptions for: (i) individuals who do not have access to banking services or electronic payment systems[.]” For an employer organization’s payment to the US Treasury, would a new electronic-only requirement make work difficult for a retirement-plans practitioner?

BG5150, seeing you then had no volunteers on your query, I invited you to consider one of many opportunities an employer or plan fiduciary might consider. In my experience, retirement plans’ fiduciaries and practitioners who advise them have wide ranges of interpretations about how an ERISA § 403(c)(2)(A)(i) or Internal Revenue Code § 401(a)(2) mistake-of-fact concept applies regarding a particular set of facts. If a plan’s fiduciary approves a return grounded on a mistake of fact, “[e]arnings attributable to the [mistaken amount] may not be returned to the employer” and “losses attributable [to the mistaken amount] must reduce the amount to be so returned.” And: “Furthermore, if the withdrawal of the amount attributable to the mistaken . . . contribution would cause the balance of the individual account of any participant to be reduced to less than the balance which would have been in the account had the mistaken . . . amount not been contributed, then the amount to be returned to the employer must be limited so as to avoid such reduction.” Revenue Ruling 91-4, 1991-1 C. B. 57, superseding Revenue Ruling 77-200, 1977-1 C.B. 98. Consider also that if, following a mistake-of-fact decision, an amount taken from a participant’s pay is treated as not the participant’s elective deferral, the employer owes its employee the yet-unpaid wages, with interest provided under a State’s wage-payment law or otherwise to compensate the employee for the time value of money. You know your client, the situation’s facts, and other surrounding facts. And you know about your client’s capabilities and weaknesses in implementing a correction. Further, consider Paul I’s thoughtful suggestions.

I don’t imagine collecting information about sex or gender is unnecessary or superficial. Rather, I sense service providers have practical uses for the information, and I seek to learn more about those uses. david rigby, thank you for the inertia explanation. Also, I know information about sex or gender can matter for a defined-benefit pension plan; that’s why my query assumed an employment-based individual-account (defined-contribution) retirement plan. And I know an employer might have many purposes for recording and using information about an employee’s sex or gender. But my query is about what an individual-account retirement plan’s service provider does with gender information. Especially if the service provider never provides services regarding a defined-benefit pension plan. It’s been almost 20 years since I worked inside a recordkeeper. Every day, I learn about recordkeepers’ offers of services and ways of working that didn’t exist 20 years ago. Sometimes, I learn directly from a recordkeeper. But sometimes I seek information that doesn’t depend on my work directly for a particular client.

Is there an opportunity for the plan’s administrator to direct the plan’s trustee to return mistake-of-fact contribution amounts to the employer, and for the employer to pay each affected employee the employee’s unpaid wages? And correct all records of elective deferrals?

President Trump’s Executive Order Modernizing Payments To and From America’s Bank Account calls for payments to the US government to be made only by electronic-funds-transfer. https://www.govinfo.gov/content/pkg/FR-2025-03-28/pdf/2025-05522.pdf Is there a situation in which lacking an opportunity to pay—one’s own payment, or a client’s payment—by a paper check would be a hardship for a retirement, health, or other employee-benefits practitioner?

I’ve read some proposed, and some enacted, laws, Federal and State, on the on the two-sexes theme. I’ve not yet read a law that forbids a nongovernmental service provider to ask about an individual’s voluntary description of sex or gender information.

david rigby’s observation seems about sorting work between a pension plan’s ERISA-defined administrator and a service provider. About which person bears responsibility for a Form 5500 report as a plan’s ERISA-defined plan administrator or otherwise in that role: For a chapter 11 bankruptcy, the debtor continues to operate its business, subject to bankruptcy constraints. Often, an employee-benefit plan’s debtor-appointed administrator—often, the bankruptcy debtor itself—continues to serve. For a chapter 7 bankruptcy, “if, at the time of the commencement of the case, the debtor (or any entity designated by the debtor) served as the administrator (as defined in section 3 of the Employee Retirement Income Security Act of 1974) of an employee benefit plan, [the chapter 7 bankruptcy trustee shall] continue to perform the obligations required of the administrator[.]” 11 U.S.C. § 704(a)(11) http://uscode.house.gov/view.xhtml?req=(title:11 section:704 edition:prelim) OR (granuleid:USC-prelim-title11-section704)&f=treesort&edition=prelim&num=0&jumpTo=true. This is not advice to anyone.

Paul I, thank you for mentioning respectful oral and written communications, including getting honorifics right. (BenefitsLink neighbors, if you’re wondering, for the last 14 years my university teaching includes how to use language that refers to personal information, including sex or gender, in respectful and thoughtful ways. But my students, all of whom have work experiences and some inside retirement service providers, seen unable to mention a use beyond the one Paul I describes.) Is there another use for a record of whether a participant is female, male, or nonbinary?

I’ve seen some big recordkeepers ask for information on a participant’s or employee’s gender, with system fields and drop-downs for female, male, nonbinary, or unspecified. An employment-based individual-account (defined-contribution) retirement plan often has no provision that determines a benefit according to the participant’s sex or gender. Yet, I imagine a service provider has other service-related reasons for collecting the information. What are a service provider’s uses for which it’s helpful to know whether a participant is female, male, or nonbinary?

Of the employer’s bankruptcy, is it a liquidation bankruptcy or a reorganization bankruptcy?

C. B. Zeller, thank you noting an authority a practitioner would consider. Borrowing that § 54.4980B-2 rule for not only counting employees but also looking to a § 414(b)-(c)-(m)-(n)-(o) employer might fit an interpretation of the statute. As your note observes, the Treasury’s January 14 notice of proposed rulemaking is only a proposed interpretation of the statute. Further, even if it becomes a final, effective, and applicable rule, it remains an interpretation, one that a court might consider but does not defer to. Yet, the practical answer prevails. No tax disqualification results because a plan sponsor set an automatic-contribution arrangement § 414A might not require. Only a plan sponsor opposed to an implied-assent regime and ready to take some risk would want advice about interpreting the statute on this question.