PensionPro

Does anyone know where the term "affected participants" or "affected employees" is defined in the code/regs/IRS ruling?

A sole proprietor is the 100% owner of the sole proprietorship. "If the employer is not a corporation, a 5-percent owner is any employee who owns more than 5 percent of the capital or profits interest in the employer." Treas. Reg. §1.414(q)-1T, A-8.

due to 318 the 2 sons are hces

Engage an attorney if you have not done so already.

I was looking at TIAA-CREF's website and this is what it says: Plan sponsors are required to gather the necessary information to determine if the 415© limitations are satisfied. We have developed a range of information-gathering tools to aid you in doing this. http://www1.tiaa-cref.org/plansponsors/resources/compliance/403b/details/contribution-limits/excess_415_amounts.html

We had a situation where the plan did not allow Roth rollover, but the employer accepted a Roth rollover anyway. We amended the plan prospectively. The participant, an NHCE, terminated and took a distribution shortly. So there was a sliver of time where the plan had an operational failure. The risk was fairly minor. It is highly likely an IRS auditor would not have noticed such a failure in the first place.

My understanding is that it is the employer's responsibility to ensure contributions do not exceed the applicable limit. In order to meet this obligation the employer needs information about other plans sponsored by an entity in which the individual/employee has controlling ownership. While it seems awkward, an employee's hiring packet could include a form that says something along the lines of "I certify that no contributions are being made to a retirement plan sponsored by an organization in which I have ownership interest and will inform the Plan Administrator if this changes." Then you only have to delve into employees who marked No. I think the IRS is focussed on the employer's responsibility in this regard and what procedures are in place to properly apply the limits. Maybe others can chime in on how they handle this.

yes the plan is subject to title 1 of erisa and the fidelity bonding requirements.

You have the option to get the rollover out of the plan.

How would the university be in a position to apply the 415(c ) limit without this information?

When using prior year testing QNECs must be allocated to an NHCEs account for 2012 and paid to to the trust by 12/31/13 in order to be considered in the 2013 test.

I don't see how a plan whose document states that it is going to satisfy 401k/m through safe harbor can retroactively decide to satisfy 401 k/m through testing. I recommend you read this page from the IRS web site. BTW the page was last reviewed 04/29/13 but they neglected to update the reference to the new Revenue Procedure. An excerpt: "[The employer] must evaluate the impact of its failure to provide notice to its eligible employees. The solution might be different for each affected employee." (emphasis mine) http://www.irs.gov/Retirement-Plans/Fixing-Common-Plan-Mistakes---Failure-to-Provide-a-Safe-Harbor-401(k)-Plan-Notice

I don't believe the plan becomes subject to ADP/ACP testing. You may have other issues if you did not provide notice in a SHM plan since an employee's deferral elections arguably depend on the information in the notice.

You can correct by adding more benefits or increasing existing benefits and submitting under VCP. See Rev Proc 2013-12.

Only if the foreign distribution qualifies as an eligible rollover distribution within the meaning of section 402©(4). The tax treaty does not override this requirement. So generally the answer is No. However, check out this discussion about qrops (may or may not be relevant since you asked specifically about Ireland) ... http://benefitslink.com/boards/index.php?/topic/35698-qrops-anyone/

I would recommend that you review the safe harbor notice closely as there are several types of safe harbor contributions. If 2012 contributions are not made by 12/31/13 (assuming a calendar year plan) you can check with the employer after that date. If you do not receive a satisfactory response at the time you can escalate your grouse to the DOL's EBSA. It is a good idea to follow up on the contributions you are entitled to because your employer may or may not apply the law correctly or may make a miscalculation or misdeposit.

Sorry to hear about your employment situation. The best sources of information are the Plan Administrator/HR contact as well as documentation you have received such as the Summary Plan Description, safe harbor notice, etc. You should not lose claim to your safe harbor contributions merely by rolling over your account balance.

TPA firms (and possibly even some law firms) are starting to offer ERISA §3(16) fiduciary services and assume the responsibility of administrator from the plan sponsor. Maybe this type of arrangement will serve your client's purpose.

All mistakes are not mistakes of fact. A mistake of fact is an unconscious ignorance of a fact that is material to the transaction. PA has to follow participant's written election not what may have been on participant's mind.

a business income from an S-corp is not compensation for plan purposes

An SMM is only required I believe if it is modifying info in the SPD. Arguably if info is material it would be on the SPD. However, communicating the change to the participant is important so you do not get questions later on about why there is no true-up this year.

Also pg 12 of pub 4220, "While Your Application is Pending"

You are correct. From the IRS web site: When the IRS approves a timely filed exemption application, exempt status is recognized back to the date the organization was created. Thus, while an application is pending, the organization can treat itself as exempt from federal income tax under section 501©(3). For example, it must file Form 990 (instead of an income tax return) while its application is pending. However, if the org ultimately does not qualify for exemption you run the risk of having an employer eligibility failure.

Are they paying her for attending the meeting? Off the top of my head I can not think of an ERISA violation.

http://benefitslink.com/boards/index.php?/topic/32034-unsigned-plan-document-or-amendments/