ESOP Guy

I think they need to change the age to start RMDs a few more times! 😁 Part (not the only) of the reason I do ESOPs is I couldn't take 401(k) work any more. All the notices and if you read the law the liability if you are late! The work just wasn't fun any more.

Yes, the WSJ had a rather extended article on this and how the tax benefits could be a major reason for the structure. It was an interesting read.

I do not think the above is correct. https://www.finra.org/investors/learn-to-invest/types-investments/retirement/managing-retirement-income/taxation-retirement-income I quote: Smart Tip: Taxes on Pension Income Vary by State It’s a good idea to check the different state tax rules on pension income. Some states do not tax pension payments while others do—and that can influence people to consider moving when they retire. States can’t tax pension money you earned within their borders if you’ve moved your legal residence to another state. For instance, if you worked in Minnesota, but now live in Florida, which has no state income tax, you don’t owe any Minnesota income tax on the pension you receive from your former employer. I think a number of high tax states tried to tax benefits earned in their state but after you moved and congress stopped it as it was very unpopular.

At least in the ESOP space so much of the competition is national that I don't see a lot of regional differences. The firm I work for has business development people working the whole country and if a regional difference that got large happened the national firms would grab the business. I concede ESOPs is a much smaller world than 401(k)s people are more willing to have their professional not very local. On the other hand a dentist or other small firm most likely expects their TPA to be in the metro area. So I can see more of a regional difference happening in that case.

My guess you are correct the plan document is the main thing. I am NOT much of a 403b expert but in a PSP, 401k, or ESOP my default answer would be no unless I find something very clear in the document that said otherwise. All plan documents I have read make it clear you pay a terminated participant which isn't the same as an ineligible participant. That is with the understanding you said there are no in-service distribution provisions.

I haven't heard of any numbers bigger than a few thousand from co-works but yesterday was the first time I recall it was mentioned on a company wide basis.

Anyone else now having clients getting tax refunds garnished becasue of this glitch? We have had a few.

Not a lawyer but all TPAs have E&O insurance for a reason. We are required to act in a professional manner and can't be negligent and just say, "well the PA has the only legal responsibility". But as noted this is for a lawyer to opine on if it is worth the legal fight.

I am with Peter here. I am pretty sure any platform of any size has funds that meet most major religion's needs. This seems simple to solve and not solving almost take a conscious decision on part of the plan administrators to just be stubborn.

There is an IRS ruling on this. I don't have the cite. But the person has to be terminated. If there was an agreement to bring the person back they weren't terminated. While not 100% I would look to other indicators of termination. Did they send this person a COBRA notice for example? If not, and normally a person in his position would have gotten a COBRA notice that points to this person not being terminated. I would have recommend to a client to not pay a person as this fact set looks currently also.

How long ago were these 5500 filed? I have found some of the 5500s don't show the auditor's report for a while. This seems long but are they sure they really didn't attach them?

There is a good chance you got it. Old ESOPs can what is known as the have/have not problem. There are no new shares to allocate to the new employees so getting the terminated employees to take a distribution is a source. They might not even be reallocating all the shares in one year but setting it up so the shares are allocated to employees over a number of years. But ESOP companies tend to not like only long tenured employees having shares and the new employees don't. It can cause work place friction. Joe who has worked at the company for a long time keeps talking about how much his stock is worth and how get it is being an owner employee. Bob keeps seeing he is only get a few shares every year and thinks I will never do as well as Joe why should I care about the ESOP?? While this appears to not be an issue currently many ESOP companies like to get the shares out of the hands of their former employees if the stock price is going up. Why compensate a former employee with a higher stock price? Obviously the point is to compensate the current employees. So getting shares out of the terms and to current employees is good human resources thinking in most cases. You want to pay people for current work not past work. It is a win for you since you want out with the price going down. So win/win at this point. They are most likely limiting you to 40% becasue they don't think they have the cash to fully cash out the terms. Hope that helps.

I haven't seen a pattern yet but I have to admit haven't looked for this pattern also.

I just got a call from a 2/28/2023 PYE client. They got a letter from the IRS saying they approved the extension to 10/15/2023 for the 12/31/2022 PYE. I double check we filed the correct extension done right. There seems to be a bit of an issue going on here.

Bird has the right number in my mind. I haven't had to compute a 401(k) loan since 2012 so I am happy to be told I am wrong but based on this IRS example this is the math. https://www.irs.gov/retirement-plans/issue-snapshot-borrowing-limits-for-participants-with-multiple-plan-loans Example 2: Calculation of the maximum amount of loan when there are prior loans. Assume that Plan B permits participant loans (including multiple loans). Mark has a vested account balance of $200,000 and took a loan for $40,000 on August 1, 2013. On December 1, 2015, when the loan balance is $25,000, Mark wants to take another loan from the plan. The loan balance on December 1, 2014, was $32,000. The maximum amount that Mark can borrow is $18,000. This is calculated by first determining the repaid loan amount for the one-year period before the loan was made. That amount is $7,000. It is the difference between the highest outstanding loan balance for the one-year period ending on December 1, 2015 ($32,000) and the outstanding balance on the day of the loan ($25,000). The $50,000 limit is reduced by the repaid loan amount to $43,000 ($50,000 - $7,000). Therefore, the maximum amount of the new loan is the reduced limit minus the outstanding balance on the day of the loan, which is $18,000 ($43,000 - $25,000). So for the original question: Step 1: The difference between the highest loan balance and current balance is $20,000. That number subtracted from the $50,000-20,000= $30,000 That is the step 1 limit. Step 2: 75,000*50%= 37,500. You take the current loan balance from that number 37,500-15,000= $22,500 Step 2 is lower so that is the max loan and the number you were expecting. Maybe the math of step 1 will always mean step 2 is lower if the balance is <$100,000 as noted above. I will allow someone who cares more to work that math out. However, the error in the original comment seems to be taking 50,000-37,500 vs the difference between the highest loan balance and the current loan balance of $20,000. I guess you might want to send the IRS link to American Funds and ask them why their system doesn't sync with the IRS' example.

Anyone else have clients getting extension letters from the IRS saying their 12/31/2022 PYE are 6/30/2023 PYE and their 5500 is extended to April? We have seen a few.

Millennium Trust will set up the IRAs. Millennium Trust has or is changing their name but you should still be able to Google them. They have a pretty simple process which is one of the reasons they have become so popular to send lost participant money to them. PBI is a good search firm but I don't know if the full search service can be done by year end. Their process includes sending confirmation letters to the person. https://www.pbinfo.com/

The answer if this person gets a contribution for 2022 is determined by the plan document not the law. In the end the document will reflect the law but the law gives some flexibility regarding this issue. Once you determined they have the 1,000 hours in the 12 months what is the plan's entry dates? If it is the 1/1, 7/1 following the person doesn't enter the plan until 1/1/2023 and wouldn't get a 2022 contribution. If the plan's entry dates are the 1/1 of the year they meet the requirements then the person would enter 1/1/2022 and most likely get a contribution. So read your document and determine when the person enters the plan. Likewise, read the document if they stay a PARTICIPANT or not. I can't imagine the answer is anything but they are a participant until they terminate once they enter the plan. The plan document will likewise tell you the conditions of when a person will share in any future contributions.

Honestly, your question is hard to understand. Are you talking about someone who is a participant already? If so, the document defines the rules of when a person who is rehired re-enters the plan. I have plenty of plans that clearly say that a person who was a Participant in the past re-enters upon rehire regardless of how long they have been gone for example. Are you talking about an employee who never entered the plan? If so, a well written document tells you how to handle them when they are rehired. Depending on the exact facts and how the plan document is written they will get credit for their prior service and other times they will not. The document will reflect the law. The guy who trained me back in the early '90s was famous at the firm for saying: 99% of all your questions can be answered by reading the plan document. Even when it is a question of the law the document will simply reflect the law. This really is a read the freaking document question more than anything else in my opinion.

Assuming the plan allows rollovers in would you sign off on short cutting it by simply combining the balances or would you at least get a form completed? Just curious mostly.

The fact there was a plan termination is pretty important. There is a law that says you fully vest upon termination of the plan. I just had this earlier this year. An ESOP said you didn't forfeit until a person had 5 breaks in service. They had a cliff vesting schedule. We had to vest all those 0% people upon termination but that is what the law says. I don't see that rule/precedent being very applicable here.

I think the question that needs to be asked is: was this person terminated? If they were why weren't they offered distribution paperwork before now (assuming the plan document would say they can make a distribution shorty after termination)? If they though they could come back were the still employed but just not working? Once this non-plan question is settled you have an easy answer- follow the plan. If they were terminated years ago they don't get the 100% vesting because of death. If they weren't terminated years ago but terminated due to death they are 100% vested. So I don't think the most important issue here is one the plan's document or retirement rules can answer I think it is a facts and employment law question. When did this person terminate? Answer that question and you get the right result.

At our firm we would not combine the accounts. They are different types of money and while it might not ever make a practical difference the payment of the death benefit money out to have a death 1099-R code. Here money might have a different code and if surviving spouse is young getting a 1099-R of a 1 vs D might be of note. I even have one ESOP that the document for some reason says a beneficiary can't name a beneficiary. You might want to check the document to see if there are any differences like that. Since it is a spouse they can leave it in the plan but I would track two accounts if it were me. Once you mix the two there is no undoing that if it were needed.

Yup, Luke has a good point. You need to find a loan that looks like what is going on here. The credit union I use offers loans secured by one of your own CDs (why you take this out baffles me but they have offered it for decades so someone must do it) is CD rate +2%. The 60 month CD rate is currently 5.99% so plus 2% you get 7.99%. You have as a baseline a fully secured loan by your own assets being offered by a local lending institution. It is lower than prime+2 higher than Moody's. Although a lot closer to prime+2 Maybe the client of the person who asked original question should see if they can find that and document it if they really want to forge their own path. But given how small the gap between prime+2 and what I got in my area it might not be worth the work and risk.

Based on the sample of clients we have seen so far it appears to be clients that filed close to the due date are the ones being hit with these letters. It isn't even clear to me the IRS has statutory authority to hit people with a penalty or at least that was my conclusion many years ago. I haven't looked at it for many years I will admit. If someone wants to tell me I am wrong I can live with that.