david rigby

Yes, after-tax contributions are permissible. However, they are subject to some non-discrimination testing. You might need to submit additional specs to determine whether such contributions are likely to have a problem with the non-discrmination test. For example, if only highly-paid employees are likely to make such contribution, that can lead to a problem. Also, what level of employer matching contribution already exits? Some earlier discussion threads may be of value: http://benefitslink.com/boards/index.php?showtopic=10776 http://benefitslink.com/boards/index.php?showtopic=14631

Rather than the link above, let's try this similar, and longer, discussion thread. http://benefitslink.com/boards/index.php?showtopic=15057

There is sufficient ambiguity. However, see especially comments by MGB in the first link above and his reference to "as determined by the Commissioner." Excellent point. Under that perspective, the Commissioner never determined $180K, so it cannot be an indexed amount. But you should be able to solve the confusion very easily by amending the plan to specify that amount (or any other amount not more than $200K). Might be cheap insurance to just do the amendment.

How about "form over substance"?

Does this help? http://www.benefitslink.com/IRS/revproc2002-35.shtml

Generally, documents are not supposed to adopt IRC 401(a)(17) by reference. However, it certainly does happen. You might get some value from these threads. In both, note comments by MGB. http://benefitslink.com/boards/index.php?showtopic=14601 http://benefitslink.com/boards/index.php?showtopic=14370

Just my opinion, but if a formal bankruptcy has been filed (beware, there might be other terminology in some states that is similar), then reliance on a DOL Opinion letter likely will not guarantee payment of your fees. Seems unlikely that a bankruptcy judge is going to be limited by DOL opinion. Getting advice from legal counsel seems appropriate.

Generally, any court action which seeks to direct payment from the plan to someone other than the participant requires a Qualified Domestic Relations Order (QDRO). Note however, that plans sponsored by governmental units will usually be covered by different requirements.

You could get married.

Limit under IRC 415© might also be a problem, in combination with other contributions,

Except that the new regs (proposed I think) change the 15 days to 45 days. If the phrase "accrued benefit statement" refers to the disclosure in ERISA section 105(a), it is never required based on any action of the employer, only required when requested by the participant.

As usual, comments by MGB are correct and succinct. However, I am less optimistic than his "couple of years". I don't expect regs in less than 3 years.

Can the sponsor fund the difference now?

There are two SS taxes, and have been for a few decades. The "old age" portion is 6.2%, and is assessed on comp up to the wage base. The medicare portion of 1.45% is assessed on all comp, including many forms of imputed comp, without a maximum.

"...taxes, etc. come out before 401(k) con" Does not sound "fine" to me. How can taxes come out before 401(k) contributions?

Technical Bulletin from NJ tax website, http://www.state.nj.us/treasury/taxation/p...ubs/tb/tb39.pdf Might be other information on that site.

Most prior discussion threads about this topic have noted that such pay is (usually) termination pay, which is not wages, and therefore should not be covered by a qualified plan. However, you may wish to do your own search on the message boards (rather than rely on my memory).

The IRS has this site http://www.irs.gov/forms_pubs/formpub92.html for prior forms, althought there is no guarantee you will be able to find your specific form.

http://www.shrm.org/hrnews/articles/defaul...age=052402a.htm

You might want to be cautious in using any statistics from the Human Rights Campaign. There is some track record of distortion.

http://www.benefitslink.com/IRS/notice2001-56.shtml

http://benefitslink.com/boards/index.php?showtopic=6731 http://benefitslink.com/boards/index.php?showtopic=5770 http://benefitslink.com/boards/index.php?showtopic=5764

Again, facts and circumstances. Based on your description, it is probably prudent to analyze the reason for the "steady loss" of participants. If, for example, it was thru a series of small layoffs, it could be that the beginning of that action is the beginning of the partial termination.

IRS list of treaties. http://www.irs.gov/pub/irs-trty/

Send it.