Peter Gulia

If a blank line calls for filling-in a date on which something became, becomes, or will become applicable and the writing does not otherwise state that date, one might worry about an incomplete expression. But if a fill-in would be merely a recital of when something was signed (I’d ignore the nonsense about “executed”) and there is useful evidence of when it was signed, what incompleteness would a maker worry about?

It’s Congress that set this penalty. The Labor department merely announces the non-discretionary inflation adjustment.

If one subscribes to Wolters Kluwer VitalLaw™ research databases, its edited Internal Revenue Code integrates Public Law 117-328 deletions and additions (as Belgarath wishes for) with caution markers for each subpart’s applicability date. One imagines Bloomberg and other publishers have edited their versions. Belgarath is right; it’s helpful to read the changed Internal Revenue Code as a whole text.

To the extent there is a tax-qualification failure to correct, consider that SECURE 2022 § 305 undoes the Internal Revenue Service’s time limit on which failures are eligible (if otherwise eligible) for self-correction.

Yes. Form 5500 and its Schedules and attachments is the form for an ERISA-governed employee-benefit plan's annual report.

ERISA § 502(c)(2)’s civil penalty for a failure to file an annual report is $2,586 per day. 88 Fed. Reg. 2210, 2219 (Jan. 13, 2023). If a plan’s administrator is off by one year and three weeks, that’s about $1 million.

I suggest only some points of authority a professional might consider, along with other authorities, to construct a reasoned interpretation. A taxpayer should want her professional’s advice about whether an interpretation has enough authority for a tax-return position. See 26 C.F.R. § 1.6662-4(d) https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR1d0453abf9d86e0/section-1.6662-4#p-1.6662-4(d). I ask some questions; but a professional must do the complete research, analyze and interpret all possibly relevant authorities, and render careful advice.

And the business might have a few years' incorrect tax returns, by claiming a deduction for contributions to a plan that was not tax-qualified.

Even if the plan year began December 30, 2022 and ended December 31, 2022, might the limitation year have been January 1, 2022 to December 31, 2022? “Unless the terms of a plan provide otherwise, the limitation year, with respect to any qualified plan maintained by the employer, is the calendar year.” 26 C.F.R. § 1.415(j)-1(a) https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR686e4ad80b3ad70/section-1.415(j)-1#p-1.415(j)-1(a). Even if both the plan year and the limitation year were December 30-31, 2022, might a sole proprietor’s § 401(c)(2) earned income for 2022 have been earned on December 31, 2022? “[A] sole proprietor’s compensation is deemed currently available on the last day of the individual’s taxable year[.]” 26 C.F.R. § 1.401(k)-1(a)(6)(iii) https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR6f8c3724b50e44d/section-1.401(k)-1#p-1.401(k)-1(a)(6)(iii).

Must one keep a thief’s secret? Professions’ conduct rules include a general principle of keeping confidential information one learned while working for one’s client. Those rules recognize an exception for giving testimony or producing documents as compelled by law. Some might wonder whether a citizen must report a crime. The answer might be No. There is a Federal statute, enacted in 1790 during the first Congress, for misprision of felony. “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.” 18 U.S.C. § 4 http://uscode.house.gov/view.xhtml?req=misprision&f=treesort&fq=true&num=4&hl=true&edition=prelim&granuleId=USC-prelim-title18-section4. Courts have interpreted this statute to find no crime unless one both has knowledge of the felony and actively concealed it. A practical point about such a former client: Be careful not to destroy records any sooner than is regularly done under your firm’s records-retention and records-destruction procedures. Keeping your records regularly available shows you did not conceal anything. If someone might plausibly assert the TPA or actuary is or was a fiduciary regarding the plan, consider one’s co-fiduciary responsibilities under ERISA § 405(a)(1)-(3). ERISA § 405, 29 U.S.C. § 1105 http://uscode.house.gov/view.xhtml?req=(title:29%20section:1105%20edition:prelim)%20OR%20(granuleid:USC-prelim-title29-section1105)&f=treesort&edition=prelim&num=0&jumpTo=true. About all these and several other points, an observing former service provider needs its own lawyer’s confidential advice.

Congress’s Act states many changes to the Internal Revenue Code of 1986 by specifying additions to, insertions in, and deletions from specified subparts of that Code. For many of these changes, comprehending a change’s meaning or effect depends on seeing how the change integrates with the text that was in the Code before SECURE 2022. The enrolled bill does not show that. What Belgarath asks is whether we know a source that shows the Internal Revenue Code as changed by SECURE 2022?

To return to youngbenefitslawyer’s question, before 2025 is not the relevant time for whether a “new” § 401(k) arrangement was “established”. The exception Internal Revenue Code of 1986 § 414A(c)(2)(A)(i) provides is for a § 401(k) arrangement “established” by December 28, 2022. An arrangement established after that date need not provide an automatic-contribution arrangement for 2023 or 2024, but must for 2025 meet Internal Revenue Code of 1986 § 414A(a)’s condition. That’s so if a § 401(k) arrangement became established, for example, on December 30, 2022—a closing date used for many 2022 transactions. If this afternoon one is an employee-benefits lawyer advising on a merger, acquisition, or other deal scheduled to close in seven business days on January 31, one must render her advice as best she can without waiting for Treasury’s or its Internal Revenue Service’s interpretation. Some lawyers rendered that advice in December 2022.

If the plan is ERISA-governed, New York’s or any State’s law about how a divorce might affect a beneficiary designation is superseded. ERISA § 514, 29 U.S.C. § 1144; Egelhoff v. Egelhoff, 532 U.S. 141, 25 Empl. Benefits Cas. (BL) 2089 (2001). As Lou S. mentions, a plan’s governing documents might or might not provide that a divorce revokes an earlier beneficiary designation. See Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 555 U.S. 285, 45 Empl. Benefits Cas. (BL) 2249 (2009). To the extent that an ERISA-governed individual-account plan does not provide ERISA § 205 survivor annuities, such a plan provides that the participant’s surviving spouse gets the account, unless that spouse consented to a different beneficiary designation. ERISA § 205(b)(1)(C), 29 U.S.C. § 1055(b)(1)(C). A qualified domestic relations order may provide that an alternate payee who is a former spouse of the participant be treated as the participant’s surviving spouse for all or some ERISA § 205 purposes. Such a provision could wholly or partly deprive the participant’s actual surviving spouse of a benefit to which the surviving spouse otherwise might become entitled. ERISA § 206(d)(3)(F)(i), 29 U.S.C. § 1056(d)(3)(F)(i). A contingent beneficiary designation has no effect until all spouse benefits under ERISA sections 205 and 206 are exhausted. Anything on BenefitsLink is only general information, not advice, and might not fit your situation.

Does the default IRA’s custodian have a name, taxpayer identification number, and address to which the custodian sends the custodian’s IRA account statements and tax-information reports?

Evaluate whether SixFifty’s software and services might help you. https://www.sixfifty.com/products/privacy/all-us-privacy/ Also, are you sure Thomson Reuters Practical Law’s Data Privacy & Cybersecurity suite lacks the information you seek? https://content.next.westlaw.com/practical-law/data-privacy-cybersecurity/health-medical?transitionType=Default&contextData=(sc.Default)&navId=CCC952ED890C38386C41083B4FE14C15

Whichever course you choose, consider engaging a service provider that, like MoJo's employer, has an inside lawyer who understands the issues and potential failure points.

What CuseFan explains is why my note said: “If new ERISA § 113 requires a notice[.]” ERISA § 113(a) applies only when a pension plan’s sponsor “amends the plan to provide a period of time during which a participant or beneficiary may elect to receive a lump sum, instead of future monthly payments[.]” I reminded us about ERISA’s spouse’s-consent and QDRO regimes because the inquirer’s law practice is domestic relations.

For this, one needs a subscription with one of the commercial law publishers. For example, Bloomberg’s Bloomberg Law, Reed Elsevier’s Lexis, ThomsonReuers’ Westlaw, or Wolters Kluwer’s VitalLaw.

Since the Retirement Equity Act of 1984, an ERISA-governed defined-benefit pension plan’s participant does not elect against a qualified preretirement survivor annuity or a qualified joint and survivor annuity without the participant’s spouse’s consent. ERISA § 205 [29 U.S.C. § 1055] http://uscode.house.gov/view.xhtml?req=(title:29%20section:1055%20edition:prelim)%20OR%20(granuleid:USC-prelim-title29-section1055)&f=treesort&edition=prelim&num=0&jumpTo=true Also since the Retirement Equity Act of 1984, a qualified domestic relations order may provide a benefit to a participant’s spouse or former spouse. ERISA § 206(d)(3) [29 U.S.C. § 1056(d)(3)] http://uscode.house.gov/view.xhtml?req=(title:29%20section:1056%20edition:prelim)%20OR%20(granuleid:USC-prelim-title29-section1056)&f=treesort&edition=prelim&num=0&jumpTo=true Neither SECURE 2019 nor SECURE 2022 impairs those provisions of the Employee Retirement Income Security Act of 1974. If new ERISA § 113 requires a notice or disclosure, it must, among other requirements, compare a single sum to a qualified joint and survivor annuity. As before, how a participant and a spouse negotiate their division of property happens, subject to the QDRO conditions, under law external to the ERISA-governed pension plan.

part-time workers.pdf

For an ERISA-governed plan, there are complexities about how ERISA § 202(c)(1)(B)’s provision for long-term employees interacts with Internal Revenue Code of 1986 § 403(b)(12)(A)’s nondiscrimination conditions as they apply regarding employees “who normally work less than 20 hours per week.” Under new Internal Revenue Code of 1986 § 403(b)(12)(D), a plan need not allocate a nonelective or matching contribution to an employee eligible for § 403(b) elective deferrals “solely by reason of” ERISA § 202(c)(1)(B). If a plan provides contributions beyond elective-deferral contributions, the employer may elect not to count the ERISA § 202(c)(1)(B) long-term part-time employees in coverage and nondiscrimination measures, but counts the employees “who normally work [at least] 20 hours per week.” https://irc.bloombergtax.com/public/uscode/doc/irc/section_403 With no advice (not that anything I put on BenefitsLink is advice), that’s my first (and cold) read. Do BenefitsLink mavens concur?

Below Ground describes having trained a retirement plan’s administrator to call the TPA before making a particular kind of plan-administration decision. Perhaps some processes would function more efficiently and effectively if an employer didn’t appoint itself as the plan’s administrator.

Considering a tornado’s harms to people and places in Alabama, do we need to know now whether a plan allows a qualified disaster recovery distribution? For a provision tax law permits but does not require, remedial-amendment periods make it impractical to look to what many people call the plan document as a reliable source to discern whether the plan allows or omits the provision. To deal with those situations, recordkeepers, third-party administrators, and other service providers use less formal writings to ask a plan’s sponsor which provisions it wants. Some of these might state an implied instruction: absent a written response, the plan’s administrator is deemed to have instructed its service provider to provide its services assuming the plan provision (or omission) the service provider’s request for an instruction specified as a presumed choice. Some service providers might have hoped much of 2023 would elapse before it became necessary to ask for instructions about optional provisions under the SECURE 2.0 Act of 2022. But if a service provider knows or suspects a plan’s participants could include some with one’s principal place of abode in Alabama’s Autauga and Dallas counties, should we ask the plan’s sponsor whether the plan allows a qualified disaster recovery distribution? A plan may, following Internal Revenue Code of 1986 § 72(t)(2)(M) and 72(t)(11), provide such an early-out distribution. The incident period began January 12. https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/15/president-joseph-r-biden-jr-approves-alabama-disaster-declaration-3/ https://www.fema.gov/disaster/4684

So we learn something together: Imagine a defined-benefit pension plan provides a normal retirement age of 55. Imagine the plan’s sponsor asserts that age “is not earlier than the earliest age that is reasonably representative of the typical retirement age for the industry in which the covered workforce is employed[.]” 26 C.F.R. § 1.401(a)-1(b)(2)(iii) https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR6f8c3724b50e44d/section-1.401(a)-1#p-1.401(a)-1(b)(2)(iii). May an actuary do her work assuming the plan-specified normal retirement age? Or do professional standards require an actuary to make her own estimates about when the plan’s participants are likely to retire?

If the plan’s administrator has not yet instructed a distribution to an alternate payee and has not yet instructed a segregation of accounts between the participant and an alternate payee, consider doing now whatever notices and other procedural steps ought to have been done when the administrator first received the domestic-relations order. Further, the administrator might want its lawyer’s advice about whether to allow the participant a reasonable time to present whatever factual information or legal argument the participant wishes to present to assert that the order is not a qualified domestic-relations order. In my experience, few participants assert that a court’s order is not a qualified domestic-relations order.