rocknrolls2

A 501©(6) can have a 401(k) plan. I am not aware of any special recodkeeping requirements that apply to them as opposed to any other sponsoring employer.

Company maintains a 401(k) plan for its employees. One of the provisions states that if the plan administrator is unable to have a check to a participants or beneficiary cashed, after the use of reasonable diligence in attempting to locate the person, then the check amount is forfeitred until or if a claim is made for the amount, in which case it will be fully restored without earnings. Similarly, if a benefit is required to be paid by the plan, but cannot due to inability to locate the participant or beneficiary, then the account balance is forfeited until a claim is made, in which case it will be restored. Based on IRS regulations, I am comfortable with this approach. The question that arises is how is the Schedule SSA reporting handled? If the participant terminates employment and does not take a distribution, then the participant's account balance is reported on the Schedule SSA. If there is an uncashed check or an account balance that is forfeited because the participant could not be located, are you now required to enter Code B or C in line 4 box A? What if the check remains unclaimed or the account balance remains unclaimed? Do you enter Code D in line 4, Box A?

Company X maintains a nonqualified deferred compensation plan permitting certain employees to defer all or part of their compensation with a separate election permitting the deferral of the employee's bonus payment which is made in early March. Assume that Employee L is elitgible to participate in the nonqualified deferred compensation plan and that s/he elects to defer 0% on his/her regular compensation and 100% on his/her annual bonus, and that the election was made in compliance with Code Section 409A. Assuming that L has exceeded the Taxable Wage Base before the bonus is paid and that his/her gross bonus is equal to $100,000, $98,550 is contributed to the nonqualified deferred compensation plan and $1,450 is withheld as FICA tax. Can the amount withteld as FICA tax be considered a 401(k) contribution and require the employer to make a matching contribution (to the extent that the deemed 401(k) contributions does not exceed the plan's matching contribution formula)?

Company x is headquartered in the United States and has a Canadian branch. The branch maintains a "retirement contribution arrangement" ("RCA") which is essentially a non-qualified plan where the employer gets much of the benefits of a qualified plan, by being able to make a current deduction for contributions to the RCA, the participating employees are only taxed at the time they receive a distribution and while, in the RCA, the assets are protected from the employer's creditors. In addition, the assets are held by either a custodian or trustee. Assuming that the 90% resident test is satisfied, can a US employer elect to deduct contributions pursuant to Code Section 404A?

Employer X is in the process of designing a new 401(k) plan for certain of its employees, effective January 1, 2008. Based on the last digit of its TIN, Employer X's cycle under Rev. Proc. 2005-66 is Cycle B, which ends February 28, 2008. Does Employer X need to file its newly established 401(k) plan by February 28, 2008 or risk filing off-cycle?

Yes If an active employee participated in the FSA in 2006 but not in 2007, s/he would be able to claim reimbursement for expenses incurred during the grace period in 2007 COBRA beneficiaries have the same rights as active employees. MaryMM, Is there some basis for your statement, such as an IRS pronouncement?

Company X sponsors a Code Section 125 for its employees containing a medical FSA. X administers COBRA under the medical FSA by allowing all COBRA beneficiaries the right to continue coverage for the remainder of the plan year (a calendar year). X's cafeteria plan has adopted the 2 1/2 month grace period. Employee G participates in the X cafeteria plan and selects medical, dental and the medical FSA for 2006. Assume that G terminates employment on October 20, 2006 and elects COBRA continuation for all eligible coverages (viz, medical, dental and medical FSA). If G has a $800 balance at the end of 2006, can G utilize it on medical expenses incurred during the grace period beginning 1/1/2007 and ending 3/15/2007, even though G has no further medical FSA coverage under COBRA? If you conclude that the answer is "yes" what is your support for that position?

Company X buys Company Y. One year later, Company Y's defined benefit plan is merged into Company X's defined benefit plan. Included in Company Y's DB plan is a frozen voluntary employee contribution account. Go ahead five years. Now the insurer that supported the administration of the frozen voluntary employee contribution account has sold a line of business and will no longer be able to support it after 2006. What Options Do I have? Although there is a 401(k) plan, spinning off the voluntary contribution account is not a viable option since the account assets have to be distributed under the defined benefit plan's distribution options. While the DB plan is overfunded, I would hate to have to go to the PBGC with this.

Company X requires employees performing certain functions to sign a contract providing that upon their satisfaction of the eligibility requirements to participate in the X Profit Sharing Plan, the employee will receive 90% of the amount s/he has earned working in the stated function. The contribution is treated by X as an employer contribution and is thus not included in the employee's gross income at the time it is made. Sometimes an X employee will perform an unrelated function before being transferred into the function requiring the signing of the contract. I am very concerned on how this contribution should be treated for tax purposes, because any of such possible treatments have vastly different tax consequences. Here are the three alternative ways I see this contribution being treated: (1) For those employees who previously worked for X in another capacity, I can see the contribution being treated as either (a) a 401(k) contributions, since it is made under a cash or deferred arrangement (since it fell outside of the one-time irrevocable election exception) for which ADP testing would be required or (b) a mandatory employee contribution which would be subject to ACP testing. (2) For those employees who had to sign the contract at the time they were initially hired by X, I can see the following possibilities: (a) the contribution is an employer contribution since it was made under the one-time irrevocable election rule; or (b) the contribution is a mandatory employee contribution, subject to ACP testing. For (a), unless the contribution could satisfy a safe harbor, the contribution would have to be subject to the general test to determine whether it satisfies the nondiscrimination test for the amount of such contributions. Any thoughts?

Has anyone seen any unofficial estimates on the COLA amounts for 2007 applicable to qualified plans, 403(b)s and 457(b)s? I have seen unofficial estimates for the tax brackets, HSA amounts, and transportation fringes as well as the new IRA COLAs.

Company X has a 401(k) plan permitting participants to elect, among other options, distribution in the form of an annuity contract. The plan language lists three or four available options. Under the annuity contract provided by Insurer I, more annuity options are available than are described in ths plan document but because of the plan's language, annuities offered to X's participants have been limited to thos specified in the plan. X would like to adopt a more flexible provision, basically allowing a participant to select any form of annuity offered by Insurer I. However, I see two problems with amending the X plan to state "and any annuity form of benefit provided under the annuity contract with Insurer I at the time of the Participant's Termination of Employment." They are: (1) The IRS consent regulations require that the plan furnish a participant "a general description of the material features of the optional forms of benefit available under the plan." Reg. Section 1.411(a)-11©(2). and (2) IRS regulations provide that it is a violation of the anticutback requirement if the availability of an optional form of benefit is conditioned upon the exercise of discretion by the employer or a third party. See Reg. Section 1.411(d)-4, Q&A-4 and 5. Does anyone have any suggestions on how to deal with these issues in this context? Could the plan be amended to state that an annuity contract will be purchased to provide an annuity in form X, Y or Z and such other forms as are then provided under the annuity contract between the insurer and the plan." The description required to satisfy the consent requirement would have to be updated to reflect the addiion of optional annuity forms.

Bob R, Thanks for your observations. I wanted to respond to two of the points you raised: (1) I agree that you can limit participation in the DCAP so long as you cover a nondiscriminatory classification of employees. However, I disagree that you can exclude those who meet the eligibility rules and I disagree that those who actually elect the benefit should be included in the test. Instead, I am concluding that, unless the employer elects to test on a "separate line of business" basis, the average benefits test has to include all employees other than those excludable under Section 129(d)(9) and those earning $25,000 or less. I am rejecting the notion that only eligible employees should be included because Section 401(k)(3)((A)(ii) refers to "eligible highly compensated employees" and Section 129(d)(8) does not limit the group of employees taken into account for the average benefit test to "employees taken into account for purposes of paragraph (3)." I am rejecting the notion that only those employees actually participating should be taken into account because Section 129(d)(8) is not limited to "those employees participating in the plan." (2) The other point I wanted to make is on the treatment of employees when the test is violated. According to the Employee Benefits Answer Book, Section 8:18, if a dependent care plan is provided under a cafeteria plan, "then any failure under Code Section 129 [will result in highly compensated employees being taxed on the benefits received from the program]; however, failing the nondiscrimination requirements of Code Section 129 will not disqualify the cafeteria plan." In other words, all employees get to make pre-tax contributions to the plan under Code Section 125. Upon receiving benefit payments, however, highly compensated employees are taxable on the amount of benefits received.

Has anyone seen any guidance on whether the grace period for the health care FSA could cause the FSA to fail to the HIPAA portability exemption and thereby the limited COBRA exemption?

Company X maintains a cafeteria plan for its employees which includes both a health care FSA and a dependent care FSA. H is an employee of X and participates in its health care FSA, contributing $3,000 for 2006. If W divorces H as of July 1 of the plan year and the plan entitles all qualified beneficiaries to elect COBRA for the remainder of the plan year, is W's election for $750 (1/2 or $1,500) or can W elect $1,500? The latter number seems unfair since the employee still has the obligation to make contributions for the rest of the year and nothing has happpened that impacts his coverage. If W can elect $750 for the balance of the year, can H's remaining contributions be reduced by 50%?

Bob R, Even assuming you could administratively do what you are proposing, the fact remains that the statute does not specifically permit such exclusions. One problem on the NHCE side is that some of the dependent care providers do not want to report the cash payments and there are those hiring illegal aliens who would not want to have tax reporting under any circumstanes. At least the affected HCEs get to make pre-tax deductions to the FSA even if they are subject to tax when received.

Company X has a DCAP FSA as part of its cafeteria plan. For 4 recent plan years, the plan failed the 55% average benefit test. Is there any design change that can be made that will make it more likely for the plan to pass (other than excluding HCEs)? What if the company provides a matching contribution to NHCEs? Also what about tax reporting for the prior years? Any thoughts?

If there are many employees in the company and therefore, a lot of plan participants, the only viable option would be to reduce administrative expenses. Otherwise, you would, at best, be able to reduce premiums by pennies on the dollar.

Company X offers a 125 plan that includes health care and dependent care flexible spending accounts. Employee A's son, L, has reached the maximum age of 23 and loses coverage under the medical plan and the health care FSA (which we will assume is subject to COBRA). Assume that X has decided to provide COBRA to the end of the year with respect to all qualifying events occurring during the calendar year. Can L elect COBRA for the health care FSA portion for the remainder of the calendar year? I see no reason why L cannot since he is a qualified beneficiary and has lost dependent coverage under the FSA because he ceased to be a dependent under the plan. Any thoughts on this?

Company X maintains a 401(k) plan for its employees (Plan Y) under shich employees are permitted to make 401(k) contributions and X provides a matching contribution equal to a percentage of a participant's 401(k) contributions but not exceeding a specified percentage of compensation (which is defined in the Plan as including the specified elements of compensation only). During 2006, Participant M earned a bonus called N which was not mentioned in Y's definition of compensation. A 401(k) contribution was made from N and a matching contribution was based on such 401(k) contribution. What options does X have to correct this error?

As you may know, when a participant in a medical plan (including a health FSA) goes on a military leave, s/he has the right to continue coverage under USERRA for up to 24 months on a COBRA-like basis. Under COBRA, there is a special exception on the duration of COBRA coverage for health FSAs which satisfy certain rules, including that the health FSA meets a HIPAA exemption (which would usually be met if the FSA contains only employee salary reduction contributions) and depending on the balance in the FSA and the amount remaining to be contributed for the remainder of the year at the time of the qualifying event. The upshot of this exemption is that the health FSA is either not subject to COBRA continuation, only subject to COBRA continuation until the end of the calendar year of the qualifying event or also subject to COBRA for the calendar year following the calendar year of the qualifying event. I had hoped that the final USERRA regulations would provide more information on the duration of the continuation period as applied to health FSAs and whether the employer would tie that duration in to the IRS COBRA regulations. That being said, does anyone have any thoughts on how long health FSA coverage should be provided with respect to an employee going on military leave in order to comply with USERRA?

That notification due date has been liberalized based on IRS regulations and updated in the plan document. We initially changed it from March 1 to April 5 and then to the date prescribed by the Plan Administrator.

Help! Company A maintains a 401(k) plan for its employees on a calendar year plan year. Participant M was employed by Company A during 2005. In a letter date stamped April 6, 2006 but delivered to the appropriate people on April 13, Participant M notified the Company A plan administrator that s/he had an excess deferral during 2005 and requesting a timely correction of the appropriate amount plus earnings. The plan administrator was advised to process the change this afternoon (since there is no extension to the 4/15 date to the next business day in the case of a weekend). In addition, the stock market is closed for Good Friday tomorrow so if the trade order is received late the participant will not be timely corrected. This would result in the participant being taxed in both 2005 (the year of the excess deferral) and 2006 (the year of the corrective distribution). Any suggestions on how this can be corrected and the double taxation and 4979 excise tax avoided? (Participant M is 37 so recharacterizing the excess as a catch-up contribution doesn't work).

A company sponsors a 401(k) plan for its participants. The plan is intended to comply with ERISA Section 404© and offers a number of funds as part of the plan's core funds for which the company's investment committee is responsible for selecting fund managers and monitoring their performance and a self-directed brokerage window, through which participants may choose from a universe of several thousand mutual funds. A participant has written to the plan administrator requesting information on whether any of the plan's existing core funds or any of the mutual funds available through the brokerage window are designed to comply with Islamic law. According to the participant, a fund would be in compliance with Islamic law if it did not include investments in any business manufacturing or serving alcoholic beverages, providing pornography or charging or collecting interest, among other criteria. Does anyone know of any Islamic based funds or any type of mutual fund that would otherwise satisfy the requirements of Islamic law?

Company X maintains a US qualified 401(k) plan for tens of thousands US employees and less than a handful of Puerto Rico-resident employees. This plan has never been filed in Puerto Rico for a determination letter. What are the tax consequences to Puerto Rico residents under Perto Rico's tax law if the plan is not registered? Are the before-tax contributions treated as after-tax contributions? If the plan is subseuqently registered, do these employees obtain a basis in the after-tax contributions prior to registration and a separate source for pre-tax contributions post-registration? It is my understanding that unless a separate Puerto-Rico based plan is established, Puerto Rico residents will be subject to US tax to the extent they receive earnings on plan distribution. Even though the Puerto Rico law has not been amended to recognize Roth 401(k) contributions, if Puerto Rico residencts make future contributions as all Roth 401(k) contributions and receive qualified distributions, doesn't this effectively put an end run around being subject to US tax on distributions of earnings?

Company X maintains a 401(k) plan permitting employees to contribute on an after-tax, pre-tax 401(k) or Roth 401(k) basis from 3% to 40% of compensation to the plan, except that HCEs cannot elect to contribute more than 10% on a pre-tax 401(k)/Roth 401(k) basis and up to an additional 3% on an after-tax basis. If an employee contributes a minimum of 3%, the company provides a matching contribution of 4%. Finally, if the employee's pre-tax 401(k)/Roth 401(k) contributions reach the 402(g) limit during the year, the employee is deemed to have elected to contribute after-tax contributions for the remainder of the plan year. I have read the series of posts dealing with the application of the annual compensation limit on 401(k) and matching contributions. My question deals with after-tax contributions. Are they subject to the annual compensation or are they treated like 401(k) contributions? For example, let's say Executive A elects to contribute 3% of her compensation to Company X's 401(k) plan on a pre-tax basis and during 2006, her compensation is equal to $1 million. Once the employee's compensation reaches $500,000, she will have reached the 402(g) limit and all remaining contributions will be made on an after-tax basis. Can A contribute an additional $15,000 on an after-tax basis? Assuming that Executive B earns $2 million during 2006 and elects to contribute 3% of his compensation on a pre-tax 401(k) basis. Once B's compensation reaches $500,000, he will reach the 402(g) limit of $15,000. Can B make after-tax contributions on the remaining $1.5 million up to $20,200 (15,000 + 8,800 + 20,200 = $44,000)?