david rigby

Might the terms of the plan already anticipate this problem?

Do the 5500 instructions tell you to use original signatures?

If there is an auditor involved, perhaps the TPA and PA should be proactive in "confessing"; prove that no one is trying to hide anything?

From a non-lawyer: advice from J Simmons sounds very good. Perhaps the plan should consider rejecting the QDRO (assuming one is ever delivered), stating that the benefit has been paid per the terms of the plan. (Of course, this assumes the plan administrator did not have knowledge of a possible QDRO.)

Here is one of those discussions: http://benefitslink.com/boards/index.php?showtopic=43435

If by "refers" you mean the plan definition, then yes W-2 includes a cash bonus.

Could this be viewed as the QDRO assigns the benefit to the AP, then the plan distributes it with whatever tax withholding applies?

C'mon Lance. How 'bout some documentation for your position?

Good. The shorter, the better.

Is this different from tax withholding on any distribution from a qualified plan? From wages?

I can recommend several, from a variety of states, as many readers/users of these Boards could. E-mail me, if that is what you need. But, as implied earlier, it may be more useful to get recommendations from someone you know.

Is how the money will be spent one of the qualifications of a QDRO?

I found no specific statement that it is "still in effect". However, it is clearly the pattern of IRS regulation, and now the express intent of PPA, to prefer using MV of assets. Some sections of Rev Proc 2000-40 are no longer applicable, but it is extremely unlikely the IRS would void section 3.10.

Any possibility that the plans were never formally executed?

Has the IRS invented a new way to count? Notice 2009-77 includes the yield curve and segment rates for August 2009, issued ~ September 11, 2009. Notice 2009-76 includes the yield curve and segment rates for September 2009, issued October 6, 2009.

The Enrolled Actuaries Report includes some unrounded amounts. In the Winter 2008 issue, look on page 5. http://www.actuary.org/ear/index.asp

Would an amended 5500 violate the principle (correctly) stated by Blinky "... it cannot be retroactive"?

... after the proposed amendment is adopted ...

katieinny, you have grasped the essence of the other comments. One minor clarification: Andy's comment refers to the algebraic possibility that making the maximum deductible contribution could result in a total asset pool that exceeds what the plan could pay out (under either the current plan provisions or under the IRC 415 maximum, as appropriate). That possibility does not limit the deductibility, but is a caution for practical reasons.

A zero minimum contribution is not equivalent to "fully funded".For example, there could be a credit balance that offsets other required charges.

Data as of 30-SEP-09 Moody's Daily Long-term Corporate Bond Yield Averages Utilities Industrial Corporate Aaa NA 5.04 5.04 Aa 5.05 5.12 5.09 A 5.41 5.46 5.44 Baa 6.00 6.34 6.17 Avg 5.49 5.49 5.49 Moody's Daily Treasury Yield Averages Short-Term (3-5 yrs) 0.93 Medium-Term (5-10 yrs) 2.46 Long-Term (10+ yrs) 3.81

Check the pre-NRA (as early as 62) portion of IRC as added by PPA. IRC 401(a)(36).

Might you be thinking of Rev. Proc. 2000-40? Section 3.10.

Perhaps "transfer" could be added to the vocabulary of both broker and plan sponsor?

Gray Book Q&A 2009-1 may be useful: QUESTION 2009-1 Funding: PPA: Ordering Rules for Contributions Under pre-PPA rules, contributions made within 8½ months after the end of a plan year were permitted to be designated as made for the current plan year or the prior plan year. Proposed regulation §54.4971©-1©(1) states that an unpaid minimum required contribution (UMRC) is any contribution for a plan year that is not paid by the due date under §430(j)(1) - which is 8½ months after the end of the plan year. The ordering rule under §4971©(4)(B) and prop. reg. §54.4971©- (d)(2)(ii) provides that a contribution will first be attributed to any earlier plan year for which there is any UMRC. There is also an ordering rule in §430(j)(3)(b)(iii) and prop. reg. §1.430(j)-1©(2)(ii) for quarterly installments. This rule specifies that contributions are first credited against the earliest unpaid quarterly installments. Consider the following example. A calendar year plan with a January 1 valuation date is subject to quarterly contributions during 2009 but was not subject to the quarterly contribution requirement for 2008. The 2009 required annual payment for determining the quarterly payment is $4 million, so that the amount of each 2009 required installment is $1 million. As of the beginning of 2009, $3 million of the 2008 minimum required contribution has not yet been paid. The effective interest rate (EIR) for 2008 is 6%. a) As of April 15, 2009, $3 million of the 2008 minimum required contribution remains outstanding. The sponsor makes a $1 million contribution on April 15, 2009. May the sponsor designate this contribution as either a 2008 plan year contribution or a 2009 plan year contribution and, if so, how and when must this designation be made? b) The sponsor elects to designate the April 15, 2009 contribution as a 2008 plan year payment. As a result, as of July 15, 2009, the sponsor has not yet paid the April 15, 2009 quarterly payment. The sponsor makes a $1 million contribution on this date and designates it for the 2009 plan year. How is this contribution treated for purposes of calculating the late quarterly interest charge? c) The sponsor did not make the full 2008 minimum required payment. As of October 15, 2009, the 2008 unpaid minimum required contribution (UMRC) is $2,072,501 million ($3 million less the $1 million paid on April 15, 2009, discounted back to January 1, 2008). The sponsor makes a $1 million contribution on this date. How is this contribution applied? d) If a plan that is subject to quarterly installments has not yet satisfied the minimum required contribution for the prior plan year, and no specific designation has been received as of the filing of the applicable Schedule SB, is it reasonable to credit contributions in the following order (for a calendar plan year)? 1) any unpaid minimum contribution for years prior to the immediately preceding year 2) any unpaid quarterly installments for the immediately preceding plan year 3) the first quarterly installment (4/15) for the current plan year 4) the second quarterly installment (7/15) for the current plan year 5) the remaining (if any) required contribution for the prior plan year (9/15) – this item would take precedence over items 3 and 4 for contributions made on or after 9/15 6) the third quarterly installment (10/15) 7) the final quarterly installment (1/15 of the next year) 8) the remaining (if any) required contribution for the plan year (9/15 of the next year) RESPONSE a) Yes. Because the relevant contribution is not yet an UMRC, the sponsor may designate the plan year to which a contribution is applied for minimum funding purposes by notification to the enrolled actuary in order for the actuary to report the designation as part of the filing of Schedule SB for the applicable year. b) The July 15, 2009 contribution is applied to the April 15, 2009 required quarterly payment as this is the earliest quarterly payment date for which a required installment has not yet been paid. The late interest calculation for this payment ceases, while a late interest calculation for the July 15, 2009 quarterly begins. c) After September 15, 2009, the plan has a 2008 UMRC. All contributions after this date must first be applied against this UMRC until it is fully satisfied. The $1 million payment is discounted back to January 1, 2008 at the 2008 EIR, reducing the 2008 UMRC to $1,171,635. d) This is a reasonable method for ordering contributions, but whether it is the only reasonable method for ordering depends on the actual contribution dates. Copyright © 2009, Enrolled Actuaries Meeting All rights reserved by Enrolled Actuaries Meeting. Permission is granted to print or otherwise reproduce a limited number of copies of the material on the CD-ROM for personal, internal, classroom, or other instructional use, on the condition that the foregoing copyright notice is used so as to give reasonable notice of the copyright of the Enrolled Actuaries Meeting. This consent for free limited copying without prior consent of the Enrolled Actuaries Meeting does not extend to making copies for general distribution, for advertising or promotional purposes, for inclusion in new collective works, or for sale or resale.