My 2 cents

Presuming that bonuses are excluded? Why aren't bonuses included? I don't work on 401(k) plans - are SH plans allowed to exclude bonuses?

Assuming that there were no intervening distributions, and that you haven't changed your mind about it being qualified, if they are OK with it, what have you got to lose?

If it is discretionary, the result should be that the original poster gets exactly the same match as everyone else. If the original poster is not getting a match, then nobody should. If others are getting a match, it is owed to the original poster. Simple. And if the plan and SPD differ materially on this point, that by itself is a serious problem that will have to be fixed. In some jurisdictions, the sponsor is bound by the language in the SPD.

Not a specialist in 401(k) plans or a lawyer, but seems to me that you ought to be. Are they saying you aren't? If so, why? Not as though the plan says that to be entitled to share, you must still be employed at the start of the next year, or even that you must still be employed throughout the entire last day of the Plan Year. Sounds as though you were definitely employed on the last day of the plan year, even if you were not by the end of the day. Working 15 hours on the last day of the Plan Year is not enough? You would make a claim for sharing and appeal a denial. Then they have to point to the specific plan provision that justifies the denial and/or tell you what you have to do to perfect your claim.

Not much reason not to. If there is an issue, it would be whether one needs something explicit from the sponsor naming the new individual at the Actuarial Firm as the new enrolled actuary. One might give reasons such as "prior enrolled actuary retired" or "rotation of assignments" etc. for the change.

Yes. The exemption in 436(d)(4) applies to only one of the possible limitations of 436. IRC 436(a) requires compliance with subsections (b), ©, (d), and (e). Everyone is subject to the certification requirements, but the consequences of not obtaining a certification are unclear. The main consequence of not having a timely AFTAP certification is that the AFTAP is then deemed for the rest of that plan year to be lower than 60%, but that may not matter much for a plan frozen more than a decade ago. Looking at the other sections in 436, (b) deals with shutdown and unpredictable contingent events benefits, and (in my experience) those are few and far between. © deals with plan amendments increasing benefit liabilities, and such amendments are not only rare for long-frozen plans, they would tend to eliminate the eligibility for the (d) exemption. (e) deals with benefit accruals for severely underfunded plans, so (e) would never apply to a long-frozen plan either. You would have to cobble together Funding Target Attainment Percentages for the Annual Funding Notice, but the Annual Funding Notices do not show AFTAPs, just FTAPs. The AFTAP for a plan (lacking an AFTAP certification) being deemed to be below 60% would not change the FTAP. Would the lack of a certified AFTAP impact the applicability of Section 4010 filings? As that is based on calculations other than those used to determine the AFTAP, that might also not matter. At-risk determinations? Presumably the same. If anyone knows of a concrete reason for ensuring that a plan frozen since before September 2005 has its AFTAP timely certified, we would all be interested in hearing it. I suspect that most such plans are getting certifications anyway.

That is, restrictions on accelerated payments would not apply, whatever the AFTAP, even if the sponsor declares bankruptcy. Other restrictions under Section 436 could come into play.

There is no such thing as a long plan year. They are not permitted. If there is any change made to the plan year, you have a short plan year followed by a regular 12 month plan year starting on the new first day. Example: Plan with a December 20 to December 19 plan year is to be changed to the calendar year effective as of 1/1/16. The last plan year ending on December 19 runs from December 20, 2014 to December 19, 2015. You then have a short plan year running from December 20, 2015 to December 31, 2015, with the next plan year running from January 1, 2016 to December 31, 2016. In that example, if a participant works at least 1,000 hours between December 20, 2015 and December 19, 2016 and also between January 1, 2016 and December 31, 2016 (which would certainly be the case if the participant works 1,000 hours between January 1, 2016 and December 19, 2016), 2 years of vesting service must be recognized between December 20, 2015 and December 31, 2016.

I don't work with SERPs that much, but wouldn't the employer, in most involuntary termination situations, prefer not to pay the SERP out at all? Or is this one of those "pay them some money so they will go away" situations?

From my way back days, I thought only the IRS could put a lien on a participant's benefit. But maybe that was a lien and not an in-service distribution to satisfy some IRS tax/penalty... ? [i am not a lawyer, but] If it was neither an IRS tax lien or a court order determined by the plan administrator to be a QDRO (which would never be the case for a court order to discharge a debt owed to a non-dependent), the plan administrator has a fiduciary obligation to reject the court order. So if the plan complied and paid it out, the participant would have what would probably have been a sound cause of action against the plan administrator. If the participant owed somebody some money but had no funds other than those held by the plan, the creditor is plain out of luck until and unless the participant directs the plan administrator to pay the money to the participant. The money can never be paid directly to the creditor.

This is speculation, but I suspect that a big part of the problem is that neither the employer side nor the union side had enough motivation to worry about long term consequences of negotiating benefit enhancements over the years, perhaps thinking that if worst came to worst, the inability of the funds to cover benefits would be resolved through some sort of bailout. Now try to imagine what it would take to get the smallest bit of bailout legislation through Congress these days, especially for union plans. Does anyone think that Congress would agree to any kind of bailout for Social Security disability benefits (for example), even though the general population probably is sympathetic to people who are disabled? How much sympathy can one expect these days for union (or government) employees and retirees? Imagine what would happen if Congress tried to fund a bailout for governmental or union pension plan members by raising the income tax rate by even 1%? Only those tired of serving in the House or Senate would give any thought to voting for such a proposal.

Presumably, they won't know what the SSN is/was, but they can perhaps make it possible for you to verify that they had died or even get in touch with these missing participants. How long has it been since employers did not have to report compensation for all employees by SSN? Wasn't that required in the 1970s? Which is not to say that one does not ever encounter employers lacking that information for long-terminated employees.

The problem is that if the plan is truly self-directed, each participant is his or her own fiduciary. Deciding whether to allow a plan to permit self-direction of the investments is probably a "settlor function" and not a fiduciary act. I have the greatest respect for doctors, but there are doctors out there (apparently) who would do anything they could (up to and including bending the laws of physics) to reduce the amount of taxes they owe, even if it meant that their after-tax income was lower. Paying $1,000 on income of $1,500 is almost seen as worse than not having the $1,500 income at all! As for self-directing investments, it brings to mind the old saying that a lawyer who represents him or herself has a fool for a client.

My apologies - I confused 401(a)(26) with 401(a)(17). I still think that self-directed cash balance plans are a bad idea, probably intended to get around the 415 limitations applicable to defined contribution plans. Assuming that allowing physicians to set up cash balance plans with pay credits several times as great as what would be permissible under defined contribution plans is not a good use of tax dollars, what harm would there be if the rules for cash balance plans were changed to not permit pay credits higher than the defined contribution 415 limits? What good reason is there for allowing cash balance plans to be better tax-favored savings vehicles than defined contribution plans?

Not sure what that means. A self directed cash balance plan is ONE plan, so the most that could be taken into account by that plan would be limited by 401(a)(26). Separate investment options are most certainly NOT treated as separate plans! That couldn't possibly be correct. Further, I cannot imagine that one can have several investment options and treat them as separate for purposes of applying the requirement that investment losses not bring the balance below the sum of the pay credits. Say someone is maintaining three investments in the cash balance account. One is earning a steady 5%, another has a cumulative rate of return of 10% and the third has lost 30% of its value. The participant does not get to keep the positive returns on the first two and enjoy a floor of 0% on the third. It MUST be the case that the losses on the third investment siphon off gains from the other two before the 0% floor can be used as a fail safe. The sum of the three cannot go down below the total of the pay credits but that does not mean that there can be an investment-specific floor of 0% for each individual investment. That surely has to be impermissible.

I am not a lawyer, but it seems to me that a petition drafted by the attorney for one party cannot be considered (in the absence of explicit ratification by a court) to be a domestic relations order issued by a court and thus not something that the plan administrator ought to be considering whether to accept as qualified or not. The petition does not seek to transfer the funds to the ex-spouse in any event, just to try to get the plan to release those funds to the participant, even though the plan does not apparently permit that to be done. Maybe it is not necessary to pay any attention to the petition (beyond saying that the plan does not permit in-service distributions). Perhaps it is not an anti-alienation matter at all.

If the intention was to obtain the funds needed to pay to the ex-spouse from the 401(k), sounds like somebody dropped the ball by not trying, in the first place, to accomplish that through a QDRO. They had lawyers, you say? Divorce lawyers (for either side) ought to be familiar with such things as 401(k) plans and QDROs.

They are active participants, which (to me, at least) strongly implies that there are no other employers in sight to cover them. And even if they are working two jobs, what happens in the other job stays in the other job. The government only cares about what is being done for them by the employer terminating its plan.

Does filing on EFAST preserve, indefinitely, the 5500 as filed? Or do they drop them out after x years?

The problem with that is that I don't think even the PBGC will allow anyone who is not a majority owner to opt to forego any of his or her benefits (given the fact that coercion could be involved). Plus, of course, there it is in broad daylight, evident to all. Further, spousal consent is probably mandatory for any benefits to be foregone, and the resolution does not address that.

Be certain not to have any unpaid minimum contributions! The only time I saw a 100% excise tax was a plan with a deficiency where the owner waived benefits (some of which would have been paid had the minimum been met).

The following assumes that we are not talking here about a governmental plan or non-electing church plan. If the plan had $0 assets and people with accrued benefits nearing retirement age, once the plan became subject to PPA, there would have been an unfunded Funding Target (required to be amortized through the minimum required contribution over a 7-year period) and an AFTAP of 0%. The unfunded Funding Target would not be calculated by ADDING the credit balance to the $0 assets. If the assets don't equal or exceed the Funding Target, the amount to be amortized would reflect the assets MINUS the credit balance. Yes, even if that exceeds the Funding Target, as it would here. 1. If the plan was frozen by 9/1/05, Section 436 would not interfere with the payment of lump sums, so an AFTAP of 0% would not get in the way. Then it becomes a matter of cash flow. A lump sum of $100,000 is now payable? You need to put at least that much into the fund or the check would bounce. 2. Once PPA became effective for the plan, assets of $0 and non-zero benefit accruals would bar the use of any of their credit balance for purposes of satisfying their non-$0 minimum required contributions. They would also have become subject to the quarterly contribution requirements. How did they get away with running the plan on a terminal funding basis?

If the participants could take their money without separating from service, is that supposed to be a good thing?

Which will seldom translate into an actual inability to pay benefits when due. If anything, that would require additional contributions, making that problem less likely to occur.

If the 5558s were for 5500 and/or SSA filings, who needs anything back from the IRS? File the form, the extension is automatic. May want confirmation if the filing was for 5330s, but filing en masse like that implies that the 5558 was not for that purpose.