david rigby

All the other participants got vested, didn't they?

The IRS has said NO.

A few previous discussions on this topic. Try the Search feature, using search terms such as "embezzle", "embezzlement", etc.

Without commenting on specifics of your case, I suggest the IRS reasoning is that, on the DOPT, no BIS has occurred for anyone who terminated employment in the same plan year.

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IMHO, this means the plan must not apply any 415-related increases. To apply increases (using administrative procedure?) is a failure to follow the document.

Helpful? http://benefitslink.com/boards/index.php?showtopic=47756

Yes, but.... DOT is in 2008, but the original post did not say if that is before, or after, PPA effective date.

Perhaps I'm missing something: what is the relationship between the plan year and the timing of the amendment to terminate?

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the irony is that the IRS has no need for this information, except that ERISA states IRS is the conduit to the SSA. If we change the statute to substitute SSA instead of IRS, I wonder if we get the same level of gobbledygook.

Soemthing else going on? The reference to disability gives rise to the thought he's trying to hide some assets (not that the plan, or ER, cares why).

Other thoughts: - did you receive an individual statement showing your account balance, ever? - as implied above, a safe harbor plan is not required to be safe harbor every year, so there should be some other documentation (SPD or otherwise).

Maybe, but that's not common. If the freeze amendment is a (relatively) simple statement such as, "... no further accruals after xx/yy/zz", and there is no corresponding exception for 415, then the most common interpretation is that you canmust not interpret it with any exceptions. If you want the 415 exception, another amendment will be needed. [Edit: Yikes, my original typing was pretty bad. Added "must not".]

I hope the EE gets legal advice also!

Maybe, but that's not common. If the freeze amendment is a (relatively) simple statement such as, "... no further accruals after xx/yy/zz", and there is no corresponding exception for 415, then the most common interpretation is that you can interpret it with any exceptions. If you want the 415 exception, another amendment will be needed.

Another thought: I suggest caution in how you use the word "terminated". - In original post, you say "terminated further accruals". A more useful word for this is "freeze". - Then you say "supposedly will be terminated". This implies a (future) plan termination, which is significantly different than a freeze. As long as the plan continues to exist, even if frozen, its ongoing administration continues, including putting people into retirement status as they reach that eligibilty. This may be important to the EE in question because it illustrates why "aging into" early retirement eligibility is just part of the day-to-day plan administration. In your #3, whatever is "in writing" should be considered in context of the actual plan document provisions. If the document is silent, there may be outside administrative practice (preferably as written procedures) or precedent to act as guidance. Just my opinion, while there may be a legitimate complaint about incorrect comments from HR, this does not necessarily alter what the plan provides. (Recent case from the Supremes.)

Bummer. I'll try. 1. "Age into early retirement eligibilty" is included in ERISA, so that's no problem. However, the ERF provided to VTs need not be as generous as provided to active EEs. IMHO, it's inconceivable that the sponsor wanted to give the Rule of 85 subsidy to a VT. Why give a reward to those who left? 2. The poor documentation might be a problem, but that's why the sponsor will hire an experienced ERISA attorney. 3. If the question was, "can I age into ER?", then the Yes response was correct. If the question was, "can I age into the Rule of 85 subsidy?", then the Yes response is probably incorrect. But, very important to know the exact question, and exact response. See (2). 4. That might work as a method to capture an ER subsidy. Plan freeze is not likely to alter the ER subsidy, but a plan termination might be another matter. See (2). Very possible that this will never have a clear resolution, and the parties may need to search for compromise. See (2). Just some thoughts.

Not fully current, but ... On this EBSA page: http://www.dol.gov/ebsa/publications/main.html#section7 scroll down to Funded Research Papers, Private Pension Plan Bulletins, 2008 http://www.dol.gov/ebsa/PDF/2008pensionplanbulletin.PDF Does that help?

1099-R for 2009?

Based on the assumption that the estate does not have the right to elect a rollover, the 20% withholding rate is not relevant. So, the default withholding rate becomes 10%, but (I think) the estate has the right to elect zero withholding, using a W-4P, just like any other recipient of a QP benefit. The estate probably will use the W-4P to communicate to the PA the correct TIN for the estate. Just my limited understanding of the process. Perhaps others have more relevant experience.

As said on another board recently, "it's writing like this that gets us in trouble". "On a national level"? Are you asking what "national" agency has any "oversight" to define the PA? Or perhaps you are asking whether most state and/or local govt plans specify a particular internal department (or person) to be the PA?

Good, ... and change the QDRO procedures to reflect it.

A logical approach, but be careful to read the QDRO since it might require something different.

Andy is correct: most application of "grandfathering" (at least what is contemplated under 411d6 protection) is based on a wearaway of the dollar amount determined at the amendment date. Most, but not all, so a careful review of the actual amendment is needed. However, you may have indentified a different problem: failure to follow the plan document as amended. This may create other issues to address: - exactly what was the actual application? - was it consistent (wrong, but consistent)? - how many EEs affected? - to what $ extent? - if application was wrong, who has to 'fess up? - who has to pay up (if anyone)? Based on your comments, it may be that no participant suffered any harm, but the plan may have paid more than required by the amendment. The PA should probably engage an experienced ERISA attorney, especially w/r/t the last two bullets.