Peanut Butter Man

You should contact Fidelity directly. Plan documents are copyrighted.

I have to disagree. What about the preamble to the Final 401(k) Regs, which says that a change in employment status is not a "severance from employment". The IRS said: "Because an individual who is a leased employee (as defined in section 414(n) is treated as an employee of the recipient of the individual's services for purposes of section 410(b) (unless the safe harbor plan requirements described in section 414(n)(5) are met), the individual does not incur a severance from employment as a result of becoming a leased employee." Even though the Preamble specifically says "leased employee", I think the IRS would apply the same standard to a contract employee because the standard in Treas. Reg. 1.401(k)-1(d)(2) is whether your contract employee ceased employment, and from what OP says, the employer is still receiving the benefit of their services.. (Just attended Erisafile's webinar about severance from employment and this is in the materials).

The IRS FAQ for ERPAs says that ERPAs must retain "The certificate of completion and/or signed statement of the hours of attendance obtained from the continuing education provider" for four years, so each one of you would need to obtain a certificate of completion from ASPPA in order to claim credit. http://www.irs.gov/Tax-Professionals/FAQs:-Enrolled-Retirement-Plan-Agent-Continuing-Education-Requirements From the last IRS phone forum on this topic, it is my understanding that 2012 is the last year that ERPAs will be allowed to self-certify their CPE hours. Starting in 2013, there will be an online credit reporting system for ERPAs where the CPE provider reports each hour of CE earned by an ERPA directly to the IRS. (edited to add link to the FAQ)

The plan document should contain provisions on ending the relationship with one of the additional adopting employers. I would follow the procedures in the plan document for terminating adoption by one of the adopting employers. I'm firmly with the people who say that you cannot retroactively terminate a 401(k) plan.

This is the part I'm not understanding - if the participant shops, and a percentage of what they spend is used to offset the amount of their deferral, does the amount of the offset go up or down, depending on how much they spend shopping. If someone could give an example using math, it would help me out. Most of our 401(k) plans are on prototype documents. If we adopt the Savernation amendment, will this turn the plan individually designed? Has the IRS blessed the amendment, or are we going to need a determination letter? Since ASPPA (Brian Graff) has blessed this, does ASPPA have an ASAP about this yet?

I think what you have are two different dates - the Entry Date (date defined in the plan document on which eligible employee becomes a Participant) and the Elective Deferral Date (first date that a Participant makes an elective deferral into a 401(k) plan. I've seen Elective Deferral Dates which are more than 5 years after the Entry Date because, for whatever reason, the Participant decided they didn't want to defer for several years after they entered the plan, and then changed their mind and started deferring. The Entry Date is contained in the plan document - don't rely on the Summary Plan Description for the entry date because the SPD is trying to take the information contained in the plan document and describe it in an easy-to-understand manner using language an 8th grader would understand. The Entry Date can also change from plan document to plan document as restatements and amendments are completed, so over the history of the plan, one document may have one entry date and another document can have another entry date, as long as the existing employees were grandfathered when the change was made. If you have the other TPA restate the entry dates for individual participants to confirm with when they first deferred, you run the risk of creating an operational failure for failing to comply with the Entry Date contained in the plan document. You also run the risk of failing to comply with Code section 410(a)(4) and Treas. Reg. 1.410(a)-4(b).

There is an IRS webpage that compares all of the tax return preparer categories. It says that if you are a non-1040 return preparer, you must have a PTIN but there are is no continuing education requirement. http://www.irs.gov/Tax-Professionals/Overv...er-Requirements This IRS website defines who a non-1040 return preparer is. http://www.irs.gov/Tax-Professionals/Notic...-1040-Preparers Also see this IRS webpage which says that if you are a Registered Tax Return Preparer and an enrolled agent, attorney or CPA, the 15 CE hours required for the RTRP certification are included in the continuing education earned for the other credential. http://www.irs.gov/Tax-Professionals/CE-FA...ax-Professional This IRS webpage explains when an ERPA needs a PTIN - http://www.irs.gov/Retirement-Plans/Enroll...-need-a-PTIN%3F One advantage for having a PTIN if you are an ERPA is that the new IRS continuing education reporting system allows IRS Continuing Education Providers to report continuing education credits earned for ERPAs with PTINs, so you can log into the IRS system and see what continuing education you have earned.

These are two different requirements for ERPAs and RTRPs. If you plan on taking the RTRP test and being certified as an RTRP, you need 15 hours of continuing education annually, including 2 hours of ethics, three hours of federal tax law updates, and ten hours of other federal tax law. If you are certified as an ERPA, you need 16 hours of continuing education credit, including 2 hours of ethics or professional conduct annually. The list of IRS CPE providers lists who offers ERPA CPE and who offer RTRP CE. There are over 50 companies which offer ERPA CPE. The list is at https://ssl.kinsail.com/partners/irs/publicListing.asp

ERPAs are granted the limited ability to practice before the IRS by IRS Circular 230. The DOL does not have something similar to IRS Circular 230 and does not recognize the ability to practice granted by IRS Circular 230 to non-attorneys. This means that the DOL will let you talk to them about a client's situation, but you are doing so as a witness, not as a representative practicing before the IRS. In 99 out of 100 times, the difference doesn't matter until that one time where things turn nasty.

Agree. Due to some of the recent court cases in this area, earlier this year we decided to do an internal audit checking beneficiary forms in all of our plans, and have started a project to update all beneficiary forms for all participants in all of our plans by the end of the year. Our goal is no more participants dying without a beneficiary designation on file.

There is no document provider that has an approved DB/K plan document. The IRS has not pre-approved any DB/K plan document. Surprised the good people at FT William did not point you toward Section 7.07 of Rev. Proc. 2012-04, which says: "The Service will consider § 414(x) in issuing determination letters for individually designed plans that consist of a defined benefit plan and a qualified cash or deferred arrangement. A § 414(x) combined plan sponsor must submit two Form 5300s and two applicable user fees." http://www.irs.gov/irb/2012-01_IRB/ar11.html

You can buy nonqualified plan documents from most of the plan document companies. We've bought nonqualified plan documents from Relius, FT William, and Erisafile. You should also be able to find an ERISA attorney who can provide you with a nonqualified plan document. The nonqualified plan documents in the securities filings are not model documents. They have been customized for that company and are protected by copyright. I really recommend against going that route. Is it worth explaining to your client why they are being sued for copyright infringement and their plan is being disqualified for using a "borrowed" plan document because you decided to copy a document off the Internet instead of paying for one.

Not sure if, for plan purposes, an individual can simultaneously be both a common law employee and an independent contractor.

What about the PFEA amendment? Earlier this year the IRS put out a list of issues they are finding in plans, and missing PFEA amendments is one of the issues on the list. The list is posted on the IRS' website at http://www.irs.gov/retirement/article/0,,id=97211,00.html

All of the major plan document providers - Accudraft, McKay-Hochman, FT William, Relius,and Datair - have pre-approved defined benefit plans that you can buy one at a time. You should call or check out their website for pricing and what the price includes. You also may want to ask your actuary to see which document they prefer you use for this plan because each provider's documents are slightly different.

Exactly on time according to the IRS' website at http://www.irs.gov/retirement/article/0,,id=218533,00.html The website says the IRS is now working Cycle C ESOP/KSOP determ letter submissions received in Feb. 2009.

Erisafile has a chart on their website comparing the various plan document providers. I'm using it to compare pricing before we decide to renew. Chart is at http://www.erisafile.com/ppa_restatement_fees.pdf

There is a section in Rev. Proc. 2007-44 that specifically addresses when plans with different cycles merge and which cycle the new merged plan follows. I think there is even an example.

Would Circular 230's prohibit on contingency fees apply in this situation? I can't tell from the facts presented. If the plan sponsor cannot afford to litigate, have they explored the cost of alternative dispute resolution, such as mediation or arbitration? Has the plan sponsor also weighed the cost of litigation against the former fiduciary compared to the cost of defending a lawsuit brought by the participants and beneficiaries once they learn of the loss in their account balances due to the failure by the plan sponsor to adequate monitor the former fiduciary? Or the cost of defending a lawsuit brought by the participants and beneficiaries for the plan sponsor's decision not to attempt to recover from the former fiduciary.

I look at ASPPA awarding a QPA designation to someone who has earned an ERPA designation the same way as ASPPA awarding the APM designation to members who are also attorneys. When an attorney joins ASPPA, they are automatically awarded the APM designation. There is no ASPPA test to pass and earn the APM designation, so in our office APM is considered an honorary designation, not an earned designation. Once someone has the ASPPA APM designation, they are required to fulfill the ASPPA CE requirements. I know around our office that is an issue because attorneys are also required to complete CLE requirements for the State Bar, and not all ASPPA seminars are approved for CLE by our State Bar, so they are attending (and paying for) a lot of continuing ed to meet both the ASPPA requirements and the State Bar requirements each year. NIPA membership is more popular with the attorneys in our office because NIPA does not automatically award a credential to attorneys, so they can be an active NIPA member without meeting any requirements to complete NIPA CE each year just to maintain an honorary designation. I understand ASPPA wanting to grant some type of honorary designation to ERPA members so ASPPA has a way to ensure that they attend CE every year to keep current and continue to learn. It is a shame that ASPPA did not come up with a new honorary designation for ERPAs, similar to the honorary APM designation awarded to attorneys. I think creating an honorary designation for ERPAs would have been better than creating two QPA sub-groups - those that took and passed the QPA exams and those that were awarded an honorary QPA designation by virtue of earning the ERPA designation.

Are the children minors and the wife is their guardian? It might make it easier for the plan sponsor to recover the money from the wife under a fraud theory under state law.

Not illegal - just a violation of Circular 230 which could result in censure, suspension, disbarment and/or monetary fines.

I'm not sure it does still work. See IRS webpage on certain ESOP structures as abusive tax transactions - http://www.irs.gov/retirement/article/0,,id=120107,00.html

IRS has always had a watch list. It is just a list of firms or individuals whose plans have been flagged (for whatever reason) so the agents know if they receive one of these plans to review, they should notify their manager first before spending time reviewing the plan. Thanks for the link to the ROBS guidance. As I was reading through the posts, I kept thinking this sounded like ROBS with an ESOP twist. ERSOPs sound like a great topic for ASPPA Annual Conference this year.

I would give the IRS a call at 877-829-5500, explain the situation and see if an agent has been assigned yet to the Form 5300 filing. That way you can give the agent a heads-up that you are converting the filing to Form 5310.