Lou S.

Can an existing plan of the Plan Sponsor be a qualified replacement plan? Small DB plan with some excess assets above 415 limit, can they transfer it to an existing profit sharing or 401(k) that already covers all of the DB participants and allocate the excess or do they need to actually establish a new PS plan to accomplish this? Excess assets can easily be allocated in 1 year.

I've seen it done both ways by different vendors in the past. Now with the disclosure rules some vendors/tpas may get around the disclosure by saying it is a fee after the distribution and thus technically not a fee charged to the participant. Though that's just a guess on my part.

We always reflect in the year they are actually paid. Though I have seen some 5500s where they treat it as a payable and show it in the year that caused the refund. I think either is acceptable as long as you are consistant.

The Plan document usual specifies an order of beneficiaries if participants do not submit one. I do not believe an Employer or Plan Administrator has an legal duty to make sure participants submit beneficiary designation forms.

Oops you said they are all NHCEs I missed that. Yes you can descriminate against other NHCEs. Odd that all 5 are NHCEs none of them are 5% owners?

No. Unless NHCEs aregettng some benefit in a plan you haven't mentioned it will not pass descrimination.

Make a contrbution to immediately bring the plan to 110%?

Should have been part of the purchase agreement. Since it does not apprear to be addressed, they bought the stock and are now the de facto sponsor of the plan like it or not. The aquiring company is now responsible for the wrap up details on the terminated plan presumably now in the prosess of paying out participants and possibly waiting on an IRS DL. I am not a lawyer though and your milage may vary.

If the joint venture also has a plan make sure you don't run afoul of §415 which has a lower theshold, 50% (instead of 80%) if I recall correctly but I don't remember if it is = 50% or >50%.

No controlled group issue if that's what you are asking. And since your ruled out ASG doesn't sound like any problem to me.

We use Corbel and they have the gateway fail safe. I don't really know about other documents.

You cannot borrow from an IRA (it does not matter if itis ROTH or traditional) You would need to talk with your former employer about 401(k) loans as many plans do not allow loans to terminated participants.

Leaving aside any potential ASG issues - Company 2 is clearly not a CG with 1 or 3 Assuming no other familar relationship beside B/D above - Since A has no interest in Company 3 - 1 & 3 do not meet the 80% brother-sister test since common & idential ownership are both 2/3rds.

I think 1.401(a)(9)-(2), Q & A #2 is the relevant regulation Based on this he turns 70 1/2 in 2013 and his highest ownership at any time in 2013 is more than 5% therefore he's a 5% owner. I believe he would have had to become a less than 5% owner on of before 12/31/2012 to avoid the required 2013 RMD (assuming he is still working for the company). Also because he is considered a 5% owner for 2013, he will be considered a 5% owner for RMDs in subsequent years. If someone else has a different view I'd be curious as to what I've got wrong here.

She's right. Filing the return on time negates the extension. I'm sure I've read some tax cases on this but can't put my finger on any at the moment.

And an eligible participant for a safe harbor contribution can not waive his/her contribution for the year without blowing up the safe-harbor feature.

For #1, you wouldn't happen to have a cite related to that? I am still worried about the implications of 89-97. I understand IRC and Regs related to partial termination only talk about vesting, but I think 89-97 logically extends to partial terminations. If there is any authority out there stating otherwise, I really want to see it. For #2, thats a good thought. I will have to look into that more. Thanks for your comments Lou. No cite for #1. But as others have comments and I agree with then a partial termination is not the same as full termination. Partial termination relates to vesting issues only at least as far as my understanding goes.

On #1 - No need to distribute "as soon as is administratively possible," other than under $5K cashout if in the document. And no need to even offer distributions if it happens to be a plan that only have deferred distribution dates, such as a DB plan with no lump sums. On #2 - My understanding, and it could be wrong, is you vest the participants affected by the partial termination when you determine it has occurred. You would therefore vest them when you determine a partial termination occurs. In your example say you determine that the partial termination occurred in November but spanned the period February - November. You would vest all affected participants. In the event that you paid out partially vested participants (and generated forfeitures) from the February and/or June group before you determined the partial termination had occurred, you might have to restore some forfeited benefits and process a second distribution for affected individuals. I don't think it is disqualifying event to have paid them our or anything that needs to be corrected through EPCRS but rather something you "self correct" because when you originally paid them out partially vested you simply didn't know that they would part of a partial termination group due to latter turnover/closings whatever. Kind of a no-harm, no-foul as long as you restore the benefits forfeited. At least that's my theoretical understanding of how it works.

Even assuming the plan has a last day rule if any NHCE worked more than 500 hours you can't possibly pass IRS testing without allocating some contribution to the NHCEs because your ratio percentage for the year is going to be 0% and I'm not aware of any testing magic that can make 0% pass when you have at least one NHCE included in the denominator of your test.

No, elective deferrals of keys are ALWAYS used to determine the highest allocation rate of any key employee but elective deferral are NEVER used to satisfy the top-heavy minimum contribution requirements. Therefore if the Plan document states that ALL employees (including key employees) receive the top-heavy minimum then you must make the 3% employer contribution to the key or you are not following the terms of the plan document.

Only IRS non-discrimination tests. Can assume that all 4 employees are all NHCEs and since the practice was around for 9 months in 2013 that all 4 likely worked more than 500 hours and must be included in the denominator of your 410(b) testing?

A loan is an asset of the plan and not a distribution. There is no 1099-R unless the loan goes into default or is part of an offset distribution. Not familiar with TD Ameritrade forms but you should probably call them and ask if you are using their correct form, particularly if TD issues the 1099-Rs for the plan.

Who is the IRA trustee who was supposed to be holding the private investment? Can the individual do a 60 day rollover? Does the participant have paperwork showing the receiving custodian would hold funds in the IRA's name? How has the private investment titled the funds? Why is it assumed that the custodian is at fault? They may be but why is that the assumption here?

Not my area of expertise but in my wife's plan it was pretty clear that you had to add dependents 30 days after birth to keep them covered. Otherwise you had to add them at next open enrollment. Not sure why ee wouldn't have called shortly after birth for something so important as infant coverage but I I agree with GMK, other than giving SPD reminders of coverage are probably a courtesy rather than a requirement.

If no schedule C because nothing to report, why not submit a Sch C with only plan identification and info blank? If no schedule C because info was not provided, that's a different story.