Lou S.

In the 401(k) you are correct you have anti-cutback issues with vesting years if you ignore the original document. Oh and if they added a DB I'm betting these plans are top heavy and the 1 month of service 401(k) eligible employees are likely going to need a TH-minimum and I think a gateway contrib too.

I think the best of this worst case scenario would be - 1 Retro amend plan for in-service distribution at 59.5 2 Issue 1099-R for 2015 distribution. 3 Pay taxes on the distribution (file amended tax return if necessary) I guess there is some crazy argument that might be constructed as it was a prohibited loan to the company and pay the excise tax for 2015 and 2016 and future years if not corrected by the end of 2016 but that seems a very slippery slope given that no promissory note between the company and plan likely to exist.

Well I guess you could argue he is a sole proprietor with $0 income and has a 415© limit of $0 which he has exceeded with the deposit of $X dollars used to open the account.

Did the guys sign the plan document on behalf of large company? Because he likely has no authority to execute a plan document meaning there is no valid document to begin with, with or without an IRS DL submission.

Random guy off street - Can I haz 401k? Broker - Sure deposit money here Random guy off street - Can I haz my money back Broker - No Have you asked the brokerage company for a copy of the plan document they used to open the account?

You can set a default to 7% but I'm pretty sure you have to allow for elections below that.

I believe this has come up a few times if you do a search. General consensus was that it was a definition of compensation on the plan documents and MOST documents are drafted to allow continued deferrals until the participant hits the 402(g) limit even if they have passed the 401(a)(17) comp limit.

2015 calendar year test? Why not just do refund now? You have until 12/31/2016. Or if you are doing a QNEC you also have until 12/31/2016 to fund a QNEC for testing. You just need to File a 5330 for the excise tax due since the refunds weren't done by 3/15/16 if you do refunds. The um "lost" maybe notice is a separate and likely more troubling issue in my humble opinion. I'm not sure what the relevance of the Plan having Roth contributions is to the original question.

What you are describing is commonly referred to a s true up match. What is sometimes done is you do the match per payroll, at year end you calculate the match an employee would have received under and annual match based on annual pay and annual deferral and subtract out what has already been deposited under the per payroll matching for the year. What is left is the remaining deposit for each employee. This should be in the plan document I believe and as others have said you have additional caclulations so often additional expense.

I think the language in the audit is semantic. It is not definitive and as long as it references the merger somewhere I personally wouldn't have a problem with it. I would answer NO on 5A as the Plan has not formally terminated but rather merged with another plan. On 5B yes complete the information for the Plan merging to.

We've gone to using Penchecks for non-platform distributions strictly for withholding issues. Otherwise link an account with EFTPS https://www.eftps.gov/eftps/

It goes to the participants.

What about doing 8% + $6,000/number of remaining payrolls?

Assuming this is the only plan and the only eligible participants you can make a 25% of pay deductible employer contribution. Further assume PY=FY and pay based on PY. For simplicity assume mom made 50K deferred $2K and got $2K match, son made $100K no deferral or match. Eligible pay is $150K, 25% is $37.5K Company has already contributed $2K employer match so it can make a $35.5K profit sharing contribution. Since you said document has pro-rata allocation if company made max deductible 35.5/150 = 23.67% of pay. Son would get 23.6K, mom would get $11.8K (within rounding).

Actual earnings is an acceptable method. If there was a loss, yes you would have to reduce the amount forfeited by the loss. The participant should NEVER be put in a worse position than if the error did not occur.

Make sure you are up to date on any required amendments, even if the required adoption date might be in the future. I'm not aware of any current interim amendments that are required but there could be something I've missed.

Required? No. Offered the option, Yes. I'd probably include some cover sheet that states something to the effect of "We have added the ability to make ROTH contributions, please return a completed election from if you would like to now make ROTH deferrals. If no election form is returned your existing election will remain in effect." Or something similar.

Yes, but I'm not 100% sure how it is corrected. The funds were removed from his account so that's good. The funds were not refunded to the participant so that's bad. I'm not sure what the proper correction method is at this point and if VCP is required or SCP can be used since you are still in the 2 year window perhaps someone else who has gone through a similar correction can chime in and help you.

Was it unvested? Was it related match that forfieted? It is possible the prior TPA did it correctly and there is nothing to fix. It sounds like the funds were timely removed from the HCEs account to pass testing, the issue seems to be should he have received a taxable excess aggregate refund from the Plan. Unfortunately I am not sure what the correct answer to your question is if the funds were supposed to be refunded to the HCE as opposed to forfeited from his account. If the correction was done after 3/15 but before 12/31 it was timely for ACP correction but not timely to avoid the excess tax, unless it is part of automatic contribution arrangement that gets and extension of time to make the corrections (6/30 if I remember correctly).

My understanding is you are limited to the $1,950. However you must prorate the distribution between basis and earnings unlike an IRA where the basis is recovered first. I get $1,901.25 would be non-taxable return of basis and $48.75 would be subject to taxation and penalties in your example. And hopefully you have a good record keeping system to track the basis when he takes the rest out later.

HCE or NHCE? I think the answer is different depending. If it was an HCE you include the, If it is an NHCE you exclude them.

Do I follow this correctly? HC 100% -> A HC 60% - > I HC 40% -> B I 60% -> B Wouldn't that translate to HC pass through ownership from I being 60% of 60% = 36% So HC 40% (Direct) + 36% (Indirect) = 76% -> B < 80%, thus no CG? Or am I off base on my analysis?

I think he's doing it wrong but the income is sum of the two.

That sounds like the rule for providing Schedule A information. It is possible there is a similar one for trust reports but if so I'm not aware of it.

I believe they have the same restrictions as 401(k) elective deferrals under 401(k)(2). In addition, they are not eligible for hardship.