GBurns

Good point QDRO. I should have pointed to BOTH DoL and DoJ. DoJ should be contacted for Item 1 and DoL for the others.

Form 8928 is much too new to have caused any audits. Are you sure that this employer is not exempt for 2014 and 2015? IMHO, if an employer, who is not exempt, believes that it has reasonabe cause, it should file a $0 return. I do not think that it is likely to cause an audit but not filing should. If a $0 return is filed and the IRS has questions, it will ask for further information etc. An audit would not be an initial step, it never is.

I have been out of the 403(b) market for quite some time but i cannot understand the position taken by Fiduciary Guidance Counsel and quite agree with Carol V. Calhoun. Why would the QDRO be addressed to the employer? The employer has no ability to pay or order to be paid, the funds held under a 403(b) contract, as far as I recall. Ideally, an employer should have a "hands-off" position. Other than facilitating the selection of vendors and payroll deductions, the employer should not be involved. Things could not have changed that much.

Bird Regarding a "sudden influx of money". If the premiums payments were reported, What did they purchase? How was this recorded? How was the expense offset? And Since it is "just a transfer from one asset to another" If the asset was instead shares in a Mutual Fund Do you report the redemption value ( aka CSV) of the shares each year?

It seems that HRSA has no guidelines for Infants and Children but instead uses Bright Futures. From the link provided by GMK: https://brightfutures.aap.org/materials-and-tools/tool-and-resource-kit/Pages/default.aspx

I know very little about ESOPs but I cannot agree with QDROphile. 1. I would need to find out the terms of the settlement agreement with DOJ, whether they were complied with, where the repurchase money went and verify its correctness. 2. I would get a copy of the rules. Probably DOJ DoL might help. 3. Find out from DOJ DoL if they have any guidance, Administrative Interpretations etc, published or other regarding operation of the ESOP and the Fiduciary or other duties of this Representaive. 4. Get a copy of the ESOP Plan Document and those of anything related. 5. See if there is a provision for getting legal advice. If there is, GET IT ASAP. 6. Follow the legal advice. 7. If there is no legal advice available, set up a meeting between employees and this Representative and air your concerns. But, before you do anything, make sure that you are not alone. It would be dangerous to be the lone voice. Also remember that just because someone says that they stand with you does not mean that they really do. You might be the lone voice which means that you could be labeled as a troublemaker. Make sure that what you do is worth the risk.

Regarding the pre-funding of retiree health benefits. You might want to look at these which should all be available at irs.gov : PLR 9219023 PLR 201345020 PLR 201245010 PLR 201003007

To add to the rationale given by QDROphile and hr for me, I would also not recharacterize because the IRS Retirement Plans FAQ make a point of saying so; See Q 10: https://www.irs.gov/Retirement-Plans/Retirement-Plans-FAQs-on-Designated-Roth-Accounts#conts

I think that this employer's issues with their employee benefits plan, group health plan and the cafeteria plan are much bigger than the issues of affordability. It is quite possible that the whole cafeteria plan could be disqualified/disallowed because of this "outside the plan" arrangement. There are also possible participation and discrimination issues on which, I hope that someone who does plan testing will opine, it being that there is probably no reasonable clasification which could apply to these other employees. If either of the plans are disqualified or disallowed, then there would be no valid "offer of coverage" and no issue of "affordability". Then there is the question of this arrangement being an "Employer Payment Plan".

jpod, What difference does it make? Both publicly traded stocks and privately held stocks are paid for by the stockholder.

While you can 1) RESTATE and 2) AMEND at the same time, I do not think that that is relevant. The OP wants to CHANGE the PLAN SPONSOR.. That does not seem to be either a RESTATE or an AMEND. However, since it is a controlled group and Company B is already a participating employer, a change in Plan Sponsor might be allowed, but, that has nothing to do with either Restating or Amending. It is a separate issue for which I suggest that you get clarification and guidance from legal counsel.

It depends on the terms of the contract. Sometimes, it is the old plan that has responsibility for completing the treatment episode, sometimes there is a "phase out" period and sometimes it is the date of efffectiveness of the plan. This date of effectiveness is negotiated.

Dennis G. As far as I am aware, the funds in an FSA cannot be used to pay premiums including COBRA.

I agree with Flyboyjohn that 2013-54 is not applicable. However, your language needs to be clarified, COBRA is applicable to departed or former employees. It is not applicable to "departing" employees, in that they are still employees until they do depart. Here is a good opinion on the issue: http://www.swlaw.com/blog/employee-benefits/2014/07/31/subsidized-post-termination-cobra-benefits/

They either ignore or misrepresent the issues such as with Colorado and Oregon, which along with other states have also issued notices regarding the HHS and DoL positions, pre-ACA. which still stand. Zane ignores the insurance law, HHS and DoL issues by keeping the argument on ACA and section 105. It is amazing that get away with inventing the term HRP and imply that it means something other than an HRA because it is a section 105 MERP. But, since they are in the small group/employer market, the employers do not have adequate legal advice. I do not understand why brokers knowingly submit applications which have false statements. I do not think that they realize the potetntial consequences of claim denials and retroactive policy recission.

I see no nuances in the applciable laws. The IRC and CFR are both very clear on the issue(s). Additionally, since most of the clients are small employers they would also fall under their state small group/employer health insurance laws. Almost every state prohibits the employer reimbursement of premium. This prohibition is also reflected in the individual health insurance application of every malor insurer. So even without ACA, these small employers are not allowed, by state insurance law and the insurance contract, to reimburse the premiums paid by the employee. The red herring which seems to be causing thoughts of "nuances" is the continued focus on ACA regulations especially in regard to "annual limits" and "excepted benefits. The ACA regulations change nothing relevant. The arguments posted on Page 1 of this thread are all still valid. What many do not seem to realize is that the reimbursement under an "employer plan" was allowed by Treasury under Revenue Ruling 61-146 et al, not by IRC or CFR. Treasury can and now has effectively retracted Rev. Ruling 61-146 et al. There has been no change in applicable IRC or CFR which is why a Notice could be used. The issue is entirely at the discretion of Treasury. Zane knows all of this but finds it easy to confuse the issues with red herrings and irrelevancies, since their clients are small businesses who do not have legal or tax advisors, but who rely on their agent.

Except for Texas, where a law was passed, I have never seen or heard of a PEO hiring client employees, which would be consistent with the usual situation wherein the PEO is not the common law emloyer. Only the common law employer can hire or fire client employees. I am not sure that this Texas law pre-empts Federal law especially the IRC.

Just let it be.

I do not see the connection between amending the plan and the plan assets. In fact, I do not see how plan assets are involved. The receiver is taking over the functions of the CEO and Board. Some would opine that a Receiver, in most cases, also takes over the functions of the shareholders. As such, in this case, the Receiver is also taking over the functions of the Plan Sponsor. A Plan Sponsor has the power to amend the Plan and is by default, an ERISA fiduciary. Why would there be any need to specify these normal activities?

I do not understand how this could be inadvertent, but who knows? If the employee took all the WD as cash and then purchased insurance through the cafeteria plan, the employer would have had no cost under ACA, but, does the employer have to have a cost or to make a contribution? Off the cuff, I do not think that there is any such requirement. I only recall "offering" and "affordability" as the criteria.

I would defer to legal counsel. IMHO, it should be illegal to apply changes retroactively and it should also be illegal to coerce the employee into signing and it also could amount to extortion. In any case, usually any agreement signed under coercion or under duress is challengeable and may be voidable, but this depends on the facts and circumstances and the laws of the governing jurisdiction.

Do you mean that the VEBA is part of a controlled group or do you mean that there are multiple employers participating in the VEBA who could be part of a controlled group or do you mean that there are multiple VEBAs?

Under DBRA and SCA the amount provided in the form of eligible benefits is part of the hourly wage rate. It is not an additional benefit as it is in normal cases and cannot be counted as being part of the employer's contrbution to the cost of the group health coverage. Regarding your scenario, I doubt that the employee paid the entire premium and suggest that you re-check your facts.

That depends on whether or not the safe harbor is applicable, and usually it is not. In other words it is not clear if your arrangement meets the safe haror requirements.

I was recently throwing away a mini-cassette recorder and had to explain to my 12 yo granddaughter what it was,. Her response was "That's cool". It seems that some kids still want to see things that are mechanical. She also has and uses a Polaroid because she and her friends want hard copies of things so that they can make notations on them etc.