Lou S.

I agree with K2. Under the Plan document, what would keep them out of the plan?

Did the Plan have lump sum options? If so and she does want the money rolled to an IRA the "simplest" would be to send the funds to her IRA after the participant, and spouse if married, sign the necessary election forms. The question then becomes one of mechanics. Do you re-open a trust in the name of the Plan to make this one withdrawal? Does it get reported on a 5500 some how? and for what year? Who will do the 1099-R reporting? and for what year? Does this need to be "fixed" with the IRS through one of their correction programs or can you self correct? Will the deposit be treated as a Plan contribution? Do you need to notify the PBGC and if so, how? This would seem "easy" as the PBGC is generally pretty willing to work with a Plan Sponsor especially if the Plan Sponsor is simply trying to make a participant whole and the PBGC will be assuming no liability.

Maybe I'm confusing rules. I thought you had to look at highest percentage ownership at any time during the taxable year? Or is that only for HCE determination, Key Employee determination wrt Plan Year? As I said both are calendar year tax payers. Company A was owned 100% by Owner O from 1/1/17 - 10/??/17 Company A is owned 60% by owner O and 40% by unrelated 3rd party(ies) from 10/??/17 - 12/31/17 Company B is an LLC taxed as a sole proprietorship formed 11/??/17 and owned 100% by Owner O. Oh and it is quite possible Owner O has had different sole proprietorship income in the past if that matters. Both non-owner employees of Company B have been full time employees of Company A for 3+ years and will continue to be employees of Company A as well as Company B for the foreseeable future and both earned sufficient compensation in 2016 to make them HCEs in 2017 for Company A . Both employees would be the sole participants of any Plan that B may establish. I'm having a hard time not seeing a controlled group for 2017 but I'd love a citation to show I'm wrong.

Check? Money Order? ACH Debit? Wire Transfer? Take your pick.

Facts Owner - O owns 100% of Company A In October 2017 - O sells 60% of Company A to unrelated 3rd Party Owner - O starts Company B which he owns 100% Company A is an on going concern with employee staff Company B is new company that employs 2 employees, both of whom will be highly compensated plus the Owner. Owner O wants to set up a plan that excludes owner O but covers the 2 employees of Company B. Company A and Company B are both calendar year tax payers. For Calendar Year 2017 Company A and Company B are a controlled group. For Calendar Year 2018 Company A and Company B will not be a controlled group assuming there is no change in ownership. There are no affiliated service group issues to consider with Company A and B Questions 1. Can company B establish a profit sharing plan for calendar year 2017 covering only the new hired non-owner employees of B with out covering any employees of A? I believe this is yes because the newly hired employees would both be non-highly compensated employees as they had no pay from Company B in 2016. 2. Does this change if the are being hired from A where they earned over the dollar limit in 2016 to make them an HCE is company A in 2017? 3. Can they start a DB plan for calendar year 2017 for company B not covering A? I believe this is a big no as 401(a)(26) would be problematic. 4. Can Company B start a DB plan effective November 1, 2017. Have a non-fiscal year plan running 11/01/17 - 10/31/18 and ignore Company A altogether as the transaction was completed in October 2017.

Are you using current or prior year testing? Does the HCE who falls below the comp limit and become an NHCE continue to make deferrals or not? Because what ever that 1 NHCE is deferring will be your ADP for NHCEs in the year thay are an NHCE.

That is brilliant.

Consent issues aside...Yes you have to satisfy the RMD for 2017. It's possible the 6 annuity payments are more than the RMD. In a terminating DB plan where lump sums are being taken I believe the RMD is based on the lump sum divided by the applicable DC divisor. I forget exactly where it is in the 401(a)(9) regs but it is there as someone on this board pointed me to the cite last year I believe.

Top heavy coordination. Combined discrimination testing if tested together. Combined deduction limits if DB is not PBGC plan. The usually compliance testing issues.

When does he "exceed" a limit. That will determine which Plan year the catch-up is assigned to. A lot of it has to do with what plan year the contribution is tested in. He only gets one calendar year catchup limit. If he exceeds $18,000 in 1/1 - 9/30 plan year then that is catchup for calendar year 2017 and Plan Year 9/30/2017 There are other cases such as failed testing that might have the catch-up in PYE 9/30/17 or hitting another Plan limit, such as 415 that could make some of his 1/1/17 - 9/30/17 catchup in the 9/30/17 plan year. It gets important to track which calendar year catch-up is assigned to which off calendar year plans for testing and allocation reasons.

You can't elect voluntary PBGC coverage if you are not a PBGC plan.

Why not have Z adopt in 2017 and Y adopt an amendment no longer being a sponsor as of 1/1/2018. You have both sponsoring one plan in 2017 and Z takes over for 2018? To me this seems the simplest solution and I like simplicity. But there may be reason why you don't want to do that.

Is he 100% owner of Z? If yes don't you have a controlled group in 2017 with Y & Z? Is there a reason to not have Z adopt as a sponsor of the Y plan?

I think Mike is alluding to if the Plan has some compliance or document problems. If the Plan is "clean" it is almost always easier to simply amend the existing Plan to have the new entity adopt as the Sponsor of the Plan.

The plan can allow a cap of 15%. Since the Plan does allow for catch-up, they must allow for the catch-up in addition to the 15%.

1,055 > 1,000. What is the issue? Seems obvious he is credited with a year of service under the rules.

A sole-proprietor doesn't "know their pay" until they file their taxes. At least that's the explanation I've heard as to why sole-proprietors can make their 401(k) contribution as late as 10/15 the following year and not be a late contribution for the 401(k) timing rules.

And the determination date for year one and year two will be the last day of the first plan year.

If the owner's deferral is more than 60% of the total deferrals for the first year the Plan will be top-heavy and require a 3% employer contribution, unless something really screw goes on with the gain loss. The Plan is also subject to ADP testing. If the plan is using prior year testing the owner can put in 5% of pay (plus the catch-up if she's eligible) and not fail testing. If you are using current year testing you follow those rules. It's possible your owner could get the worst of all worlds by making a large 401(k) contribution that causes the Plan to be both Top-Heavy and trigger large refunds. As Bird suggest running some projected tests would be prudent.

There is noting illegal about putting in employer contributions into the trust during the plan year. Assuming they were properly from the company to the plan. But as you are finding out it's not always the best idea. If he has $40K in wages the $10K PS contribution isn't a problem from the plan stand point. If he has lass then $40K in wages a portion of the $10K PS contribution is a non-deductible contribution subject to an excise tax. I'd let the CPA deal with any ramifications beyond that.

I agree it is not a CG unless A& B are married or other attribution rules in play. As for ASG - I hate these determinations so won't comment other than to say you should consider the possibility. Lastly, does A get a W-2 from Publisher? If not your comment about "no self employment income" would lead me to believe that A does not have any wages on which to make a 401(k) deferral.

Red Sox fans are like HCEs, you're always allowed to discriminate against them as far as I'm concerned. That said I think Esop & Mike have the right answers.

Is the date of first repayment date longer than the regular loan period and is interest accrued daily? If so it's probably the first payment throwing off the calculation.

Tom his ADP is 14% of pay. I don't see how he's over max comp with a deferral rate that high.

Your options are simple - refund and forfeit the associated match with the associated 10% penalty for not getting it done by March 15 or make a QNEC to pass testing. I don't really see any other options for 2016 and you are probably in the same boat for 2017. Time to talk to him about a safe harbor plan for 2018.