Lou S.

Of course sometimes you can't talk a client out of that huge tax deduction their CPA says they just absoluetly need. Until the next year when you tell them the contribution is $X and they say "How come you never told me about these required contributions." and when you reply "you did and they acknowledged they understood that contributions would be substantial and recurring" then point to the 5 year projection you did for them when you set up the plan, they look at you like you're from Mars or something.

We are having a husband & wife plan currently under audit and the agent is challenging the the allocations for owner and spouse both with comp over the 401(a)(17) limit. Company made $98K PS - $49K each Participants elected and deposited $5,500. My understanding is that since the deferals force the allocation over the $49,000 415© limit for the year in question they are recharaterized under 414(v) as catch-up contributions. Auditor is stating there is a 415© violation for exceeding the limit. I'm sure I've seen nearly this exact question asked before here but could not find it with a search on this "Retirement Plans in General" or "401(k)" sub-forum so I guess my seach skills just aren't very good. edit - to add final treasury reg It ssems to me clear under --- 1.414(v)-1)b)(1)(i) A statutory limit is a limit on elective deferrals or annual additions permitted to be made (without regard to section 414(v) and this section) with respect to an employee for a year provided in section 401(a)(30), 402(h), 403(b), 408, 415©, or 457(b)(2) (without regard to section 457(b)(3)), as applicable. that this leads to recharaterization. Has anyone had a problem with auditors when pointing this out? Do they continue to challege uder 415©?

I am not sure about prior years but I am unaware of any restriction in the code on using currently available forfietures to fund some/all of the top-heavy minimum. 416 referes to alloaction which inculdes allocation of forfeitures. My guess however is that you can't use the forfietures to fund the back (or missed) contributions as the IRS would likely deem that a cutback to current partictiants who in theory would be entitled to a potion of them.

Let us know what you find out. To me this was the most disturbing part of the ASAP Somehow I was under the impression that ASPPA was on our side.

What I'd like to say is inappropriate for a professional forum. So I'll just say, I agree with you whne you say this is flat out incorrect.

What I think QDROphile is trying to say is you might be able to roll to an IRA if you get your company to terminate the Plan before the merger. Many times the company is reluctant to to do this for variuos reasons. And often times the question is asked too late, like after the merger has happened.

It varies quite a bit. And depends on a number of factors including but not limited to: if you have a smaller local auditing firm or one of the bigger shops do it, if you qualify for what is known as a "limited scope audit" or if you need a full scope audit, if you have non-traditional assets, if the auditors find "issues", etc.

If they are eligible to make elective deferrals they are a participant in the Plan. Whether or not they have an account balance because they chose not to make elective deferrals is irrelevent. You still count them as a participant for purposes of Form 5500.

You mean beyond 5 years of phantom tax deductions? If you are taking them through EPCRS the Plan should be fine assuming the IRS is happy with your correction methods. But they will probably need to file amended tax returns for the company for each of the last 5 years where they took deductions for contributins not made.

That's awesome. I'm going to have to remember this one. Agree on all your other points.

Your understanding is correct. see, IRC §416

Doesn't VCP imply some correction will be done? In this case it sounds like no correction will be forth coming as the sponsor appears to have no ability or intention of funding the required contribution. Maybe Walk-in cap where you negotiate a penalty and then try to have it discharged in bankrupcy? Posibly as part of the CAP agreement? I suppose the IRS could disqualify the plan, especially with respect to HCEs so they can't rollover the distributions. I have heard of anlogous cases where top-heavy plans went out of business and the IRS allowed them not to fund but I believe that was under audit and not some formal program and i don't have all the facts as I did not directly work on it. I do agree that ADP testing should be done for the year no SH is being made. Presumably we are talking about the 2011 year? At any rate, good luck.

I'm pretty sure your HCE and Key-EE are determined at the employer level. The QSOLB rules just lets you ignore the other other lines of the employer (by treating the EEs as excludable) when doing your descrimination testing. But the plans I work with are generally to small to consider using the QSLOB rules.

...and most of asppa too! Hey just because I don't like the tax code and the basic structure of US retirement policy planning, doesn't mean I don't understand it and try give my clients the best advice I can within that framework, and that includes the deferral only clients too.

Perhaps you don't have a clients who run small businesses? No, that's pretty much all we do. And we do have a lot of deferral only plans. I think they are BS personally and the IRS should just say if you have a deferral only plan the deferral limit is the same as the IRA limit and there is no testing. But I'll get off my soap box now.

I'm probably in the minority but I've always felt that deferral only plans are the ones that are ludicrous.

You could try having him sign a letter (under penalty of perjury maybe?) that no administrative fees will be paid by the trust after he takes his money, that he personally guarntees all Plan fees will be paid by him and that if he understands if fails to exceute any documents required to be signed by the Plan Trustee in a timely maner, you'll be forced to report him to the DOL. Or tell him fine if he wants his money now, you'll resign as a service provider to the Plan and he'll have to hire someone else to complete the termination. Not sure either would work or if you'd want a lawyer to draft the letter but it would most likely cover you if he should bail after taking his cash.

Perhaps not the option the keys (likely the owner of the company) wants to hear but if the T-H minimum is "only" $30K (and I use this understanding it is not MY $30K) then what about the owner taking a plan loan to make the T-H minimum? Though if business is so bad a $30K contrib will put them under, owner may already have a participant loan. Just a thought to throw out there in case it is an option.

Several big problems with the safe harbor for the supposed short PYE 10/1/11 - 12/31/11. The plan isn't effective for 3 months with a sign date of 12/1 since deferal can't start until the plan is executed. Also no formal notice is tantamout to no notice as far as the IRS is concerned.

I agree that it is next to impossible to get the IRA custodian to code it correctly so that it doesn't look like same $1,000 is taxed twice. I think the best a participant can ususally hope for is to get the cash from the IRA and claim the IRA distribution as return of basis on the 1040 when the IRA does send a 1099-R showing taxable income and keep execllent documentation in the event of future IRS audit. I am not a CPA but perhaps attaching an explaination to the original 1040 wouldn't be a bad idea either. edit - don't most IRAs have some procedures for returning excess IRA contributions? I would imagine that many participants screw up and send too much in with at least some frequency and there must be some procedure to pull out those funds since if I'm not mistaken if t hey aren't withdrawn the IRA holder gets hit with a 6% (or is 10%) excise tax for each year those funds remain. I don't work directly with IRA and haven't personally had this experience but that is where I would at least start with RBBH

See page 6 of 1099-R instructions http://www.irs.gov/pub/irs-pdf/i1099r.pdf Failing the ADP or ACP Test After a Total Distribution

The instructions to Form 1099-R pretty clearly state how you handle an excess contribution that was already rolled to an IRA and how to report it on two separate 1099-Rs. And yes the excess must be removed from the IRA, unless the IRA owner is depositing it to the IRA as an IRA contribution and not a rollover from a qualified Plan. And to echo others, yes all nondiscrimination testing is required in the year of plan termination.

Does the plan specifically NOT match on catchups? If the ACP passes and there are no ADP refunds becuase of recharaterization, what exactly is there to forfeit? If you do deterime though that the forfeituires are required, I am unaware of any de minimum rule that would allow you to not forfiet.

Upon further review I believe you are correct. Wouldn't hurt to ask for a clarifiaction from the horses mouth (in this case Corbel) since they drafted the doc. You can always have the client amend in an in-service to cover both problems but then I'm sure you are aware that's gonna apply to everyone.

I believe 1 is yes and 2 is no. I also agree it is silly not to allow them in both situations.