rocknrolls2

Company X is publicly traded and maintains Plan A, a 401(k) plan. Company Y is not public traded and maintains Plan B, a 401(k) plan. Company Y is merged into Company X in January, 2015. Assume that both plans have calendar plan years and that Plan B is merged into Plan A effective December 1, 2015. Plan B uses the look-back rule for purposes of the ADP test and applies the top-paid group election in determining HCEs. For testing Plan B for ADP compliance purposes, would the employees of Company X be taken into account in applying the top-paid group rule since Company Y was merged into Company X effective in January 2015? Could Company X apply the transition rule in delaying the application of Plan B's top-paid group rule in determining highly compensated employees? I would be most interested in your observations on these questions.

Employer X maintains group health plans for its employees. For 2015, it chose to offer affordable coverage providing minimum value to 70% of its otherwise eligible full-time employees, choosing reasonable classifications to exclude as part of the 30%. X applies the look-back measurement method for purposes of determining the amount of any penalties under Code Section 4980H. For 2016, X is extending coverage to the other 30% due to its awareness that the rule requires it to offer coverage to 95% of its otherwise full-time employees. For purposes of applying 4980H to 2016, would the newly eligible ongoing full-time employees, how would Employer X treat them? Are they treated as newly eligible full-time employees, even though they are in fact ongoing employees? Or would it not be able to do anything but treat them as ongoing full-time employees since 4980H is applied on an ALEM by ALEM basis? I would be most interested in getting your thoughts on this. Thank you.

For purposes of determining whether an employee is a full-time employee (for purposes of determining liability for the excise tax), while payment for hours in which an employee is entitled to payment for a period of time in which no duties are performed (such as vacation or holiday) have to be included in hours, if the employee receives pay in lieu of vacation or holiday, is that taken into account as hours of service? The employee is getting the pay but is not taking the hours for which the employee is entitled not to perform services. It seems to me that the answer should be no. Does anyone have a different view? If so, what are your reasons for taking that view?

Employer X maintains an HDHP and contributes to HSAs it has set up for its employees. If an employee is eligible for and enrolled in Medicaid, does this cause the employee to cease to be an eligible individual who would no longer be able to contribute to or have contributions made to an HSA?

Employer X is offering to provide medical coverage to its part-time employees. Does it have to be affordable for purposes of health care reform? I am inclined to say no since the employer responsibility provisions and taxes apply solely with respect to full-time employees of the employer. Am I missing anything?

Employer M maintains a 401(k) plan for its employees. Under the plan, an employee can request an in-service distribution upon a showing of financial hardship, which is defined by reference to the safe harbor standards outlined in the IRS regulations. Employee A requested a hardship withdrawal, which was granted. However, the plan failed to implement the 6-month suspension period required under the regulations. How should the plan correct this error? (1) Refund all deferrals for the period in which the suspension would have otherwise applied and forfeit any related matching contributions and earnings during what should have been the suspension period? or (2) Impose a prospective 6-month suspension period?

Employer X maintains a 401(k) plan for its employees. On October 22, Employee G terminated his/her employment with X and started working for Employer Y. On October 23, G requested a loan on his/her 401(k) account balance under the Employer X 401(k) plan. Since G was no longer an employee of X at the time s/he requested it, there is an operational violation under the X 401(k) plan. What can X do to correct this error? For example, should it pay off the loan with its own funds and enter into a loan arrangement with G so that G repays X for the amount of the erroneously granted loan (but this gives G a windfall by restoring his/her pre-loan account balance)? Should X immediately subject G to tax on the amount of the loan and inform G that the amount cannot be rolled over? Would it make a difference if G is a highly compensated employee?

Employer X operates a number of elementary schools within a specific geographic area. To limit costs and expenses (especially with respect to health care), it has proposed to limit employees it classifies as assistants to work no more than 29 hours per week. Assume that assistants are given one hour off for lunch for each day that they work, of which 30 minutes are paid and the rest is unpaid. Does Employer X have to include the lunch break in determining whether assistants are full-time employees? If so, would it only count the paid hours or would it also have to count the unpaid 30 minutes during an assistant's lunch break? Thank you.

I was referring to some mechanism for charging for access to the clinic, which could include capitation or fee for services, which the employer chooses to pass on to employees in whole or in part. Clearly, the capitation method would allow for a more simple calculation of the total and could be spread out throughout the plan year, provided that capitation is either based on a total workforce at the job site basis or total number of enrolled employees.

Therefore, you would conclude that it does not make a difference if employees would be required to pay some or all of the premium for access to the clinic on an after-tax basis?

Employer X allows vendor G to set up an on-site medical clinic on its premises. The services provided by the clinic are either borderline insignificant in the nature of medical care while other services constitute services that are significant in the nature of medical care. If Employer X decides not to pay premiums for the ability of its employees to access the clinic but allows its employees to pay premiums for access to the clinic on an after-tax basis. If an employee of X is covered by an HDHP and pays after-tax premiums for access to the clinic, is the employee an "eligible employee" who is able to make pre-tax contributions to an HSA?

I have an interesting question: can a defined benefit plan be merged into a 401(k) plan? I learned early on that the conversion of a defined benefit plan into a 401(k) plan would result in a termination of the defined benefit plan. However, I was not able to locate anything definitive which stands for this proposition in IRS guidance. There is a citation in the 414(l) that the merger of the two constitutes the conversion of one type of the plan into the other prior to the merger. Any helpful suggestions would be greatly appreciated.

Could you be more specific as to which DB accrual rules such a provision would violate? Thank you.

Employer X maintains a cash balance plan. It wants to amend the cash balance plan so that it only has to make a principal credit for a plan year if an employee is employed on the last day of the plan year. Is there any reason they cannot do this? Thanks,

Acquirer maintains a qualified 401(k) plan and Target also maintains a qualified 401(k) plan but it requires spousal consent with respect to certain distribution elections and plan loans (even though it does not provide for an annuity form of distribution except as applied to a merged money purchase plan). Acquirer would like to merge Target's plan into its own. May Acquirer delete the provisions of the Target plan requiring spousal consent even though it is not legally required?

To effect the election of an employer decision to exclude seasonal employees, does the employer need to do anything official, such as amend the plan, adopt a corporate action (e.g., through board resolutions), file anything with the IRS, DOL and/or HHS?

Some states have non-discrimination laws in effect that prohibit discriminating both in favor of younger employees and against younger employees (in English, they prohibit age discrimination both against older employees and against younger employees). Given the ERISA preemption angle, this would not be as likely to survive preemption. In addition, to the extent the employee is age 65 or older (and therefore Medicare eligible) ADEA specifically permits the provision of less employer-provided medical for Medicare eligible employees without violating the age discrimination prohibition against discriminating against older employees. This is because they are eligible for and deemed to have elected to be covered under Medicare.

However, please note that the Code allows employers to cover a "reasonable classification of employees." If interns are not defined by reference to a duration of time or hours worked per any period of time, you might be able to hang your hat on this, especially if the employer develops reasonable criteria for classifying interns. One possibility might be to develop a program with hr recruiting which ties in to regional colleges and universities and provides employment for these individuals for a semester or trimester or less, so that they can write a paper summarizing their experiences to their professor to get a grade and have periodic meetings with interns at that institution to compare notes, and allow enough free time at the end so they can concentrate on their final exams. If you develop the classification in that manner, the exclusion should hold up. If you hire the person as an employee, however, his/her service as an intern must be counted for benefits purposes.

I have a situation where a client wants to categorically exclude interns from participation in a 401(k) plan. Before posting this, I came across a thread between 2010 to 2011 on the subject and whether suh an exclusion could be viewed as a violation of Code Section 410(a) as imposing an indirect service requirement. I am not completely confident that this could completely avoid the issue but could an employer adapt language used to exclude independent contractors from the plan to interns? Namely, any individual who is classified by the employer as an intern and has entered into a written agreement with the employer providing that such individual is excluded from the employer's employee benefit plans? r

A client has a number of participants who took out plan loans and then default due either to failure to make repayments or termination of employment. The client is filing under VCP and proposing to correct by reamortizing those loans to allow a longer period of correction for those participants who are within the five-year period for repaying plan loans. According to Section 6.02(6) of Rev. Proc. 2013-12, "the employer should pay a portion of the correction payment on behalf of the participant equal to the interest that accumulates as a result of such failure--generally determined at a rate equal to the greater of the plan loan interest rate or the rate of return under the plan." Does anyone have any thoughts on the meaning of the term "rate of return under the plan?" It might be easiest if the client took the pure earnings amounts on the previous year's Form 5500 and compared it to the beginning plan balance to arrive at the "rate of return under the plan." Thoughts?

I have a client that has a number of participants with plan loan problems. About half of the affected participants have terminated. I am proposing to file a VCP application and propose that the correction would be done by allowing the affected participants to reamortize their loans for up to the 5-year limit. I am also proposing that no reporting of these corrections take plan on Form 1099-R. Does anyone with experience dealing with the iRS loan corrections in VCP know if the IRS allows the reamortization approach as applied to former participants? Thank you.

Employer X offers its employees a health plann with a menu of choices. One of the options available to employees is a high deductible health plan ("HDHP") in tandem with a health reimbursement arrangement ("HRA"). Normally, the HDHP would have declined claims for expenses and applied them to the deductible until it was reached. However, the employer would pay those amounts to the employee under the HRA. It was recently uncovered that the insurer had been paying claims incurred from the beginning of the year under the HDHP in spite of the deductible (so the plan was working in direct opposition to the way it would currently work). The HRA is, of course, funded by employer money. Once this situation was uncovered, it was corrected prospectively. However, for those employees who were reimbursed under the HDHP, what options are available to effect correction? The only options occurring to me are: (1) treat the employees' reimbursement as if they had actually been made under the HRA rather than the HDHP but credit these amounts toward the deductible under the HDHP (this might require a wash transfer of monies from the employer to the insurer and vice-versa); or (2) require the employees to reimburse the insurer for the amounts incorrectly paid under the HDHP and the employer would cut a check for an equal amount under the HRA. If this option is chosen, does the employer have to tax-report those amounts paid to employees who fail to reimburse the plan?

A client has proposed to issue an SAR for all of its plans with a generic cover page, a back page summarizing the participant's rights and an attached spreadsheet which references all of the plans and contains the numbers used to fill in the blanks for what has to be in the SAR. Is this a valid way to do this? While I have no objection to having one giant SAR for all of the plans with each plan listed separately, I think the spreadsheet would be too confusing to the average participant. Any thoughts?

My client's traditional defined benefit plan is doing a lump sum window and hopes to open it up to alternate payees. The recordkeeper has suggested an approach that would simplify the eligibility of potential alternate payees to elect a lump sum. If there is a divorce decree and the decree mentions division of the pension, then further documentation is requested from the participant and/or his/her soon-to-be former spouse. If no division is mentioned in the decree, then no further documentation is mentioned and the only change that will occur is a change in marital status for the participant from married to single. Does anyone have any reason to object to the taking of this type of approach?

I am looking into whether a health plan's smoker surcharge should be included in the cost required to be reported on the Form W-2. For the surcharge itself, since it is a type of wellness program, it seems clear that it would be reportable if coverage is provided under a group health plan. See IRS Notice 2012-9, Q&A-32. However, if the provider of the program charges the employer a program fee which is not passed through to employees, should that be included in the reportable cost since it is a cost of the group health plan? Or is it treated as a wellness program for which the employer does not charge a premium and would be excluded from the reportable cost?