Lou S.

If she properly elected irrevocably to be out of the plan, she is a non-benefiting employee for 410(b). My understanding was that the irrevocable election needs to be done prior to plan entry but I honestly haven't double checked that in quite some time, I could easily be wrong on that. In small plans, allowing irrevocable election to not participate can cause demographic failures that may be difficult to cure through retroactive amendments expanding participation. As for SH I'm not sure the implications on allowing a NHCE to irrevocably elect out of the plan, if it's an HCE you're fine, if it's an NHCE I honestly don't know what that does to your SH status.

The internal revenue code is full of oddities. But yes a T-H contribution needs to pass non-discrimination tests on employer contributions even though it is mandated by the code.

Check your document, I think they would likely come in under the service spanning rules but you are correct it is possible they could get axed out by the hours requirement.

Unless the PBGC changed their rules in the past few years, filing the Form 500 prior to the actual termination date is not a problem as long as everyone has received the NOIT and NOPB. One thing you do want to be careful of is you are filing for an IRS DL on termination, make sure you file the IRS DL before the Form 500 to get the extended distribution window. If you're not worried about the extended window you can file the Form 500 at any time after you confirm participants received the required notices.

I agree that these are questions for a competent divorce attorney. And if done right I would think you'd be able to get at least half of the assets now instead of 0% of the assets when he dies.

Perhaps an ERISA attorney has a different view (I'm not one) but I would simply treat him as a terminated employee and a participant with a balance in the plan. I believe that would be the most conservative approach.

Is the Partnership dissolving or just losing a Partner? Is the Plan terminating? If it is not terminating who will be the Sponsor? If the Plan is continuing how can you force him out? If the Plan is dissolving then all accounts will need to be paid out. Though why a general partner who is leaving would want to leave his funds in the Plan is a bit of a mystery to me, but not really relevant to your question.

Check to see if the document already has a PS feature and vesting schedule but the Plan has simply not made a PS contribution. If that is the case, you'll want to look at the rules on changing a vesting schedule. You cannot add a PS feature to the Plan and start vesting in 2020. You may be able to exclude service prior to the effective date of the Plan in 2017.

I think you may be confusing the rule that to be a safe harbor 401(k) plan you need to allow for at least 3 months of elective deferrals with the new rule in the Secure Act that allows you to add a 3% non-elective safe harbor to an existing 401(k) at any time in the first 11 months of the plan year (or 4% non-elective in the 12th month of the plan year). I don't think anything in the Secure Act allows you to establish a new safe harbor 401(k) (or add 401(k) feature to existing PS plan) with less than 3 months left in the year.

Yes they are still entitled. There are never any hours or last day restrictions on receiving safe harbor contributions of any kind.

Not the CARES Act, the Secure Act. A 401(k) Plan that is NOT a safe harbor can be amended to a 3% Non-elective Safe Harbor in the first 11 months of the plan year. A 401(k) Plan that is NOT a safe harbor can be amended to a 4% Non-elective Safe Harbor in the 12th month of the plan year. For a regular 401(k) Plan, you can not add a Safe Harbor match mid-year. For a Safe Harbor 401(k), you can not change the type of Safe Harbor; match to Non-elective or Non-elective to match mid year.

The owner is a participant in the DC plan just not getting an allocation this year correct and is also a participant in the DB plan, correct? The non-Key HCE is a participant in both the DC and DB plan, correct? Your document(s) says the T-H minimum is stasfied in the DC plan for participants in both DB and DC, correct? The Plans are being tested together to pass 401(a)(4) correct? Sounds like the non-Key HCEs needs a 5% T-H minimum in the DC plan if my assumptions above are true.

There are a number of ways you can do it but it needs to be spelled out in the plan documents and coordinated with both documents as to where and how the T-H minimum is satisfied. That said I think CuseFan's answer of 5% in the DC plan is probably the most common in small combo plans. At least that's probably how we would set up the plan if we were doing it, unless there was some obvious reason to do it differently.

Not that I've seen. And I think the date was September 23 not 27.

If they do 5500s like we do for small plans then the Plan Administrator field simply has the box checked "Same as Sponsor" I can't ever recall trying to file a 5500 without a telephone number so don't know if would get rejected or not. And Peter we also often refer to the 5500 as the "Annual Report"

Remind them that penalty for failure to file can be severe between IRS and/or DOL and suggest they find a responsible signor.

Yes that sounds correct chipwood. But think you would need to add the 4% between 12/1 and 12/31 in that case. I'm not sure I understand the logic of the IRS that you can add a SNE to 401(k) that doesn't have one but you can't give a notice discontinuing the SHM, while still making all matching contributions from PYB through the 30 day notice, and then add SNE. But I agree that current guidance seems to suggest you can't change from match to NE during the year.

He said "discretionary" so I assumed they did a maybe notice for 2020, but that might be a bad assumption on my part.

Assuming the key-employees are eligible for an in-service distribution they could withdrawal their funds from the Plan, but the look back on in-service distributions being added back in for top-heavy is 5 years so if it was done in 2020 assuming this is a calendar year plan then you would be adding it back in to the determination dates of 12/31/2020 (for 2021 plan year determination), ..., 12/31/2024 (for 2025 determination) and it would be gone for the 12/31/2025 determination date for 2026. Also for unless this is a brand new plan where the determination date is 12/31/2020 for 2020, you already determined the Plan was Top-heavy for 2020 based on the 12/31/2019 balances so no matter what you do in 2020, the plan is going to be top-heavy for 2020 as you already determined it. Other than that I'll echo Bill Presson's response above which as usual seems on point.

Is the employee catch-up eligible? if so you might be able to recharaterize the excess as cacthup if they haven't used the full catchup limit. If not, as CB Z points out the document should address the 415 correction. I believe the most common method is refunding the employee deferrals and issuing a 1099-R with code E.

I don't know. I haven't seen it done like you are describing either. I've seen past service with A granted for B in cases where B has either a spinoff form A or a newly established plan that covers the employees from A who go to B. I have not seen a case where A continues to granst future service for folks leave A for B based on service with B.

Maybe a more extensive search to find the participant might be cheaper?

Agree with both of the above. There might be good reasons to have 2 plans but it can also be accomplished in 1 plan.

You need to worry about 415 proration when you have a Short Plan Year of less than 12 months, not when someone enters on a day other than the first day of the Plan year and is a participant for less 12 months.

Yeah if these are 2019 deferrals that deadline passed a few months ago. The upshot is if you pass the deadline you still need to include the excess deferrals in 2019 income, the questions which are the excess deferrals though? One was made pre-tax and gets a tax deduction, the other was made after tax and is already taxable in 2019. I think the IRS would probably rule you need to pick up the pre-tax but I don't know if there are any regs or other guidance on this situation. An interesting question would be what if both plans were done as ROTH? if you miss the 4/15 deadline you need to leave it in the account but does that mean you got to double up your ROTH contribution for the year? Because as BG correctly points neither of these Plans has a problem accepting the deferrals.