Lou S.

If they are legaly married in California (which now allows same sex marriage) and they offer benefits for opposite sex marriages but not same sex marriages I would think they would be opening themselves up to test case discrimination law suit but I am not a lawyer so take that for what it is worth.

Done it pleanty of times, never been an issue in my experience.

Is the son the executor? If yes, I'd tell the son he should find the time or you'll be happy to refer his father's participants to local DOL office. If some one else is the executor, I'd talk to them about talking over as Plan Administrator.

Been a while since I worked on any Davis-Bacon but I seem to recall that if it was treated as a QNEC in the document then it went into your ADP test (subject to the targeted QNEC retrictions that I believe are slightly more liberal for Davis-Bacon) but that you then could not use them in general test (except to the extent that they are in the ABT). But if you did not have them as QNEC for ADP in the document then you did include them in general test. So if you are a safe harbor 401(k) what whould the advantage of treating the D-B contribs as QNEC be?

I assume he means, 1099 income reported on a Schedule C seperate from the group practice and that his sole proprietorships is sponsoring the solo-K As long as there are no CG or ASG issues, sure he can have a solo-K for for his seperate business income but given his field I'd be worried about the potential ASG issues and get a legal opion before proceeding.

OK, let me re-phrase. Whatever system they are using to get paper forms into their computer system has some disconnect given the number of notices they send for plans that actually filed a 5558. And I don't think you can throw the letter in the junk mai, it does unfortuately require a response.

It's been this way since the disconnect between the paper filing of Form 5558 at one IRS loaction and the electronic filing of Form 5500 with the DOL at another location. It seems like they simply can't match all timely filed Form 5558s with properly filed 5500s durring the 2.5 month extension window. As this is an informational return with an automatic extension if you file the 5558, you'd think if you filed the 5500 with 5558 box checked the presumption from the IRS would be that you actually filed the very simple form but the IRS seems to have a problem properly logging out all the 5558s timely. Until the IRS goes t o electronic filing of form 5558 or decideds not to send out these letter, I'd expect this to be an issue for some percentage of plans each year. I agree it is a pain in the rear.

I think you have a 415 refund that is now eligible for correction under the most recent EPCRS procedure.

Why not? I'm not sure he'll return it but wouldn't sending him a package to his last known address in prison with return receipt requested satisfy the reasonable seach requirements? I'm guessing most you'll wind up forcing him out via IRA but we had a similar situaton where a guy in prison with a small balance actually signed the forms and had his girl friend cash the check after he endorsed it.

Q1, yes it is required by plan document. Q2, amend the plan before 1st day of next plan year to remove for upcoming year. Either take out SH altogether, remove for just HCEs, go to maybe notice, or switch to safe harbor match. But once the year starts with a 3% SH locked in, it is near impossible to get out of it for that year. I think you can terminate the plan altogether and lock in the liability only through date of termination and if the employer is going through bankruptcy you may be able to get out of it for the year.

I think the IRS imposes penaltys back to the original filing date which would be around $1,900 while the DFVC for a large plan one year is $1,000. Either way if the auditor is at fault for the late report I'd be looking at them to pay the IRS fee. Though as Andy points out, you mey get lucky and be able to use the govenment shutdown to your advantage here though that's a bit dicey.

http://www.irs.gov/irm/part4/irm_04-072-003.html

I'm pretty sure you can't double count the QNEC for 2012 and 2013.

The Roth basis is non-taxable and thus not includable income, why on earth would it be subject to the additional 10% penalty?

No direct experince sorry but some anectdoal experience from others. 1. Is it possible they had under 120 at BOY and can file as small plan for one last year using 80-120 execption? Sounds like no but might be worth double checking. 2. You can file w/o audit but unless plan meets one of the limited exoections (and it sounds like you done) then technically you have an incomplete filing. Expect the DOL to be asking for the audit very quickly if they even accept the filing. Prior to EFAST2 I understand some plans used this as an unoffical extension to get the audit done last but the filing considered timely, I'm not sure how well that works anymore. I don't know how they treat this with respect to timliness of filing. 3. Consider not filing now and using the DOL late filier program as soon as the audit is done, that may be cheaper then the penalty for late filing if you get it done before the IRS issues a notice. Good luck.

Strange? It sounds like a flexible benefit to allow for a choice between health care or retirement. I don't know if it is allowed, 403b not really my specialty, but it does sound like something the govenemebt would not have a real problem. It may be subject to dicrimination testing in operation especially if most NHCEs choose to pay healtcare premiums and most HCEs opt for additional retirement benefefits.

Oh and you might want to get the late 5500s filed while the govenemnet is shut down. That might look good if it is taken care of before the audit discovers it on their own.

FDL is not a requirement nor is a DOL issue. If the contibutions are all up to date and you don't have any fiduciary breaches I'd think the DOL would be happy with any termination that got participants paid out in full without the bankrupt company plan going into orphan status.

If you are talking about a large some of money it is likely a fiduciary question for the Plan Trustee. If the savings will be large, might be worth getting a legal opinion on it.

Doesn't a participant have to take all loans available under the plan before taking a hardship? Unless taking the loan would create further hardship.

I agree it is perfectly legit. I do not agree that is really that simple. But if the employer doesn't mind paying for an extra plan document and 5500, sure it is fairly simple to establish a new plan.

If establishing a new plan so that one participant can now participate seems too easy, then yes I agree with you.

The Trustee should request return of the amount that was supposed to be forefited from the participant. The Plan Administartor should inform the participant of the amount that was supposed to be refund and is not eligible for rollover along with the consequenses of leaving it in the IRA. The particiant should be issued correted 1099-Rs if distribution in 2012 (or should receive 2 1099-Rs in 2013), see instructions to Form 1099-R there is a good section on exactly what to do when amounts are rolled over and later determined to be corrective distributions. TPA has not actually made any error. This can potentially happen anytime a client pays HCE employes before all testing is completed, though it might be required following the terms of the Plan Document. I wouldn't expect this correction to be covered for free by the TPA as there is a fair amount of work involved in fixing this issue and while it happens from time to time I wouldn't say it is a common issue that falls under normal and routine work.

Sure you can file paper EZ or electronic SF as 1 participant with limited questions answered.

I haven't review it in a while but I think if it is a loan default it cannot be used to satisfy RMD; but if it is a loan offset it can be used to satisfy RMD.