PensionPro

Depends on the 'paperwork for new plan.' Based on the info you present the employee will enter the plan 1/1/12 and is not eligible in 2011. I am assuming the paperwork does not provide any special entry dates on the plan's effective or adoption dates. Also it would be a good idea to work with someone more familiar with qualified plan rules.

The hypothetical question in post # 3 was I think: If a DB plan covering all its non-excludible NHCEs and some of its non-excludible HCEs fails 401a26, is a corrective amendment benefitting only HCEs discriminatory?

Regs are not clear, plan doc might help.

Are you saying the deferrals were wrongly deposited into the non-union plan instead of the union plan?

The corrective amendment can not be discriminatory. From §1.401(a)(4)-11(g): Corrective amendment for coverage or amounts testing--(A) Retroactive benefits must be provided to nondiscriminatory group. Except as provided in paragraph (g)(3)(v)(B) of this section, if the corrective amendment is adopted after the close of the plan year, the additional allocations or accruals for the preceding year resulting from the corrective amendment must separately satisfy section 401(a)(4) for the preceding plan year and must benefit a group of employees that separately satisfies section 410(b)(determined by applying the same rules as are applied in determining whether a component plan separately satisfies section 410(b) under §1.401(a)(4)-9©(4)). Thus, for example, in applying the rules of this paragraph (g)(3)(v), an employer may not aggregate the additional accruals or allocations for the preceding plan year resulting from the corrective amendment with the other accruals or allocations already provided under the terms of the plan as in effect during the preceding plan year without regard to the corrective amendment.

Plan eff 1/1/97. Orig docs not available. Adoption agreement available for restatement eff 1/1/1 (seems to be TRA 86, opinion ltr available, but base docs not available). No FDL was ever issued on this plan. No GUST or EGTRRA docs were adopted. Is this a good candidate for a John Doe submission? Any other suggestions? Thank you!

Provided your plan document allows and non-discrimination testing passes, why not treat it as a profit sharing contribution? Vesting may or may not be an issue.

Thanks for the helpful response. We are in fact requesting the prior DL from the IRS. We are still trying to determine whose prototype document they used. It is not one of the major providers. It seems to be a TPA firm's but since the base doc is missing it is a little more difficult to drill down but we are working on it. Thanks again.

Thanks, Sieve, appreciate the useful cite. Any insight into the question about applying for FDL with the VCP submission?

On takeover we have a plan that was amended for TRA 86 using a prototype document for which an opinion letter is available, but the base document and FDL (client believes they applied for it, but are unable to retrieve a copy) are not available. My question is: does the lack of a FDL open the door for the IRS to request documents prior to the TRA 86 document restatement? Also I believe an application for FDL is not required with the VCP submission since we are restating to GUST and EGTRRA volume submitter documents. Is that correct? In case we decide to apply for a FDL should we apply for FDL only for the EGTRRA document? Thanks for any help!

try A-7 of §1.402©-2

http://www.clarkconsulting.com/resource/su...1sidedprint.pdf https://www.bucksurveys.com/bucksurveys/pro...ion-survey.aspx (price $250) http://www.plansponsor.com/BuyersGuide.aspx?id=6442478152

The operation of section 414(b), © and (m) and the regulations thereunder necessarily require that controlled group members exist concurrently. However, also see post # 9 of this thread: http://benefitslink.com/boards/index.php?showtopic=8553

Thanks for the helpful comments.

Can the plan still rely on the advisory or opinion letter after adding a provision relaxing the eligibility requirement for some employees?

See if this discussion helps ... http://benefitslink.com/boards/index.php?showtopic=43314

Regarding your second question, if one of the exceptions to application of the tax under §72(t) applies (e.g., for amounts paid after age 59 1/2, after death, or as part of a series of substantially equal payments), the exception also applies to distributions within the 2-year period and the 25-percent additional tax does not apply. Regarding your first question I am not entirely sure, but I believe the clock would continue to tick regardless of no contributions being made.

An employee's service with all controlled group members are aggregated to determine eligibility. If this individual worked 1000 hrs for Co A, this service must be recognized in determining eligibility for Co B as well.

Are we talking about one plan or two plans?

Trying to understand the train of thought here ... Sec. 411 pertains to minimum vesting standards. What precludes the various sponsoring employers of a multiple employer plan from adopting different vesting schedules that meet the minimum standards?

I believe the SIMPLE contributions are treated as excess and reported on box 1 of W-2. This seems to mean the SIMPLE contributions go out first. I don't have a cite, but that is my understanding.

My understanding is the eligibility provisions and vesting schedules can be on an employer basis. What is the basis of the argument to the contrary?

Yes to the question in the title. See §§1.401(a)(9)-5 Q&A9 and 1.401(a)(9)-8 Q&A2.

There was a recent thread on this subject as well ... http://benefitslink.com/boards/index.php?showtopic=48687

I am assuming they meet the conditions for the noninvolvement exception under IRC §1563(e)(5). It is possible to enter into a legally binding agreement renouncing community property. At the very least each party should be represented by separate legal counsel experienced in the community property laws of that state. It is possible, but may not (or may) be worth the effort. An improper agreement may result in unintended consequences in the event of divorce, death, etc.