david rigby

IRS Publication 590: http://www.irs.gov/pub/irs-pdf/p590.pdf

Now? Wouldn't that be a cutback under 411(d)(6)? Check plan provisions?

I reproduced your numbers exactly.

Effen's request for clarification is valid. However, let me try: What is probably meant is that the sponsor of one or more employee benefit plans is being acquired. If so, it is essential that the buy-sell agreement be carefully examined. (Preferably, someone with EE benefits experience will have input before the agreement is finalized, but that is ususally a crapshoot.) There are many variations of result. But whatever the form (usually, the seller retains the plan responsibility or the buyer gets it), the plan(s) must continue to be operated according to the terms of the document. The buy-sell might specify something specific, thus it must be examined. Much more discussion is possible, but that is the nutshell.

Not trying to deviate from the "simple life", but there are three possible limits: - 402(g) limit, mentioned above, - plan imposed limit, - limit reached via the ADP test. The catch-up contribution "kicks in" at the lowest of these limits.

Does anyone have any additional information on this topic?

Adjustment? Not sure what you mean. Just use the definition of actuarial equivalent in the plan. Do you want it checked? Post the definition and the factor, and someone will respond.

so what the H-E-double-hockey-sticks?

Carol Calhoun's website may have something, or a link to something that may help you. http://benefitsattorney.com/modules.php?name=Web_Links

Correct. Before going down the road to anguish of a non-deductible contribution, careful analysis by a qualified actuary is in order. You don't have to give the details here if you don't want to, but we will be glad to help if you do.

Agreed. Perhaps not relevant, but has anyone checked this lump sum against 415 limits?

It depends on what you mean by this. In general, a method must remain in effect for at least five years before you can go back to automatic approval for a change under Rev. Proc. 2000-40. However, the establishment of a new plan does not start that 5 year clock. If your reference to "in effect" means the plan's existence, then you can change the method. If you have not read the Revenue Procedure, it is important that you do so before further analysis. Find it here. Also recommended is a Search of this Message Board for additional discussions. BTW, if you get an "agree" from either Blinky or MGB, then feel comforted.

Correct. However, the plan may be able to demonstrate that it did provide such notice, in which case, your "damaged check" scenario may provide a better solution.

Go for it. If they reissue the check, presumably with a new date, use that to document your rollover. BTW, if you got a check, it should have had 20% federal income tax withholding. If so, it should identify the gross, the withholding, and the net. (Don't assume; verify.) You can rollover any amount up to the gross. State tax laws vary. www.irs.gov. Look for Publication 590.

See "When to File" on page 1. http://www.irs.gov/pub/irs-pdf/i5330.pdf

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Not necessarily. The plan may use that definition, but it is not required.

How about getting advice from another attorney.

There have been many discussion threads that speak to this topic, so the Search feature may prove useful. IMHO, the answer should be one of practicality, with an eye toward the "big picture", and remembering the general ERISA principle of resolving ambiguities in favor of the participant. Precedent may also be useful. Here is one example that happened to me. Long ago (I won't tell you when), I started a new job on the first day of January. It was a Monday, either the 2nd or the 3rd. The PS plan had a one year waiting period. Next January 1, was I eligible to participate? The answer was determined by looking at my pay; the employer did not prorate my monthly salary for that first month, so they considered that I had begun work on January 1, and met the one-year requirement. Should the plan document address this? Maybe, but it seems more appropriate to include in the written procedures adopted by the administrative committee.

We'll assume you don't really mean the "trustee", but the plan administrator (even if those two roles are filled by the same person, they have different responsibilities). The PA cannot impose anything, unless the plan authorizes it. Not likely. But perhaps the plan already defines a limit for HCE deferrals?

Why not? Why not make sure the total is correct in all cases, not just for 401(a)(17)? What does the Plan say?

mbozek makes a valid point, noted many times on these Boards. However, there may be several valid reasons for terminating rather than merging. Among the most important is that the buyer may want to ensure that his (current) plan is not "tainted" by any potential mistakes/wrong-doing in the other plan, including with respect to plan design, administration, trustee, fiduciary issues, etc. However, back to the original post. The plan is not being sold, the plan sponsor is. If there is a 100% stock purchase, then the plan "goes with it". Even if terminated prior to the sale, unless the buy/sell agreement makes clear that a surviving organization will continue to exist and will have all responsibility for the termination. Let's be clear: is that what is happening? If terminating, then "follow the rules" is good advice. If a plan is terminating, then you don't have to worry about "forcing out" the former employees' accounts: they have to be distributed, just like all other participants. The plan provisions will already say this. Since the buyer is terminating the employment of (at least) one trustee, the buyer should be prepared to install a substitute trustee immediately, so that the "chain of command" is clear throughout the termination process.

What about those who post links to sports-related comments?

Does it matter what a beneficiary form says? Maybe, but likely it is more important to determine what the Plan says.

Several related prior discussions. See this one first, http://benefitslink.com/boards/index.php?showtopic=27946 and use the Search feature to find others. BTW, perhaps using the Unfunded Current Liability to define the upper bound of your contribution range will help.