david rigby

Your responsibility is to act professionally. Paid? Yes. Tell the PBGC what you think is reasonable, and be prepared to negotiate. If there are unpaid invoices, deal with those separately. Just an opinon.

Today's Federal Register. 80+ pages!

Under IRC 436, if burning any COB will eliminate a restriction, then the burn is not optional. Therefore, the AFTAP occurs after the burn, not before.

What elections are permitted under the plan? lump sum in cash? lump sum as rollover? anything else?

You can probably find a CBO estimate of any hypothetical situation. Then you have to decide if it has any validity.

BTW, EBSA regs here: http://www.dol.gov/ebsa/regs/main.html

BTW, if your concern is paying taxes, don't forget that you can defer taxes by using a rollover to an IRA. If you want to later roll that amount somewhere else, it may be best to use an IRA that is separate from all your other IRA's. You can order a copy of IRS Publication 590 at www.irs.gov.

Stop? Not per se, but it is (in my observation) pretty common for DB plans to have language that offsets benefits received against future accruals. The net effect is almost always a benefit (to that employee/retiree) that does not increase. This characteristic helps make 401(a)(36) a valuable option to encourage phased early retirement.

I'll say it.

ERISA section 4041 defines two types of terminations: standard and distress. Section 4042 discusses a termination inititated by the PBGC. An involuntary termination has (approximately) the same net effect as a distress termination, but there is no "application" for the former. Notice the prominent use of the word "bankruptcy" in discussing a distress termination. http://www.pbgc.gov/practitioners/plan-ter.../page13261.html

Obviously, the solution is to have more DB plans!

My understanding of "final 5500" is a requirement of zero assets and zero participants. Unless the "money in the trust" exists only because the (for example 12/29/08) check has not yet been cashed by 12/31/08, then you don't have zero assets at EOY. Anyone else have other information?

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.