IhrtERISA

My apologies for the typo....plan year ending 12/31/2019. Thank you

Greetings - Plan Sponsor (and plan name) was changed effective 1/1/2019 via a plan amendment. We need to file a 5558 extension for the 5500, for plan year ending 12/31/10. We have changed who the plan sponsor is since the last 5500, so I am not sure if the old or the new plan sponsor should file the extension. While Form 5500 has a place to provide for a chance in plan name, Form 5558 does not My gut tells me to file Form 5558 under the current (new) Plan Sponsor and check the box under #1 that this is the first Form 5500 for the plan listed above. As an aside, would the new plan sponsor also need to file Form 8822-B to Report Change in Identity of Responsible Party? Seems like a simple issue, but one that I can see the IRS having an issue with. Thank you!

Greetings - Health plan was amended effective 1/2019 to provide for a change in the plan sponsor. New plan sponsor is an affiliate of the previous plan sponsor. Plan name was also changed accordingly. Is there a form that needs to be filed with the IRS notifying of the change in plan sponsor? I have come across Form 8822-B (Change of Address or Responsible Party) but this does not seem to be exactly on point. This came up as a result of the new plan sponsor filing for an extension to file Form 5500. Your thoughts are greatly appreciated! J

Following up on this thread, I am filing my first VCP on behalf of a client under the new pay.gov procedures. In filing Form 8950 via pay.gov, does anyone see any issues with the preparer (attorney authorized under Form 2848) signing the Form 8950 as opposed to the client/applicant? I understand that the new process requires a declaration be signed by the applicant, and specific language included in the Form 2848 in order for the preparer to sign Form 8950. We've just always had the client/applicant sign as the Plan Sponsor in the past. Is the general practice to have the client write a check for the filing fee to the preparer, who then makes payment using its own credit card via pay.gov? Thank you!

Luke - Thank you very much for your input. I shared a similar about option 1. And yes, this is an employer with > 100 participants for each of these benefits With respect to option 2 (wrapping the existing self-insured plan with the fully-insured ancillary benefits), would you agree that it's fair to say that a disadvantage to doing so would be a lack of flexibility in terms of administration? For example, if the plan sponsor wishes to terminate the ancillary benefits plans and maintain the health plan, it would be more cumbersome to do so under one plan document? Any other disadvantages that you could think of?

Plan sponsor has an existing ERISA plan document for its self-insured medial and RX drug plan. Plan sponsor endorses multiple fully-insured ancillary benefits (LTD, STD, AD&D, etc.) and never adopted a wrap document for such benefits. It has come to our attention that plan sponsor had been filing one Form 5500 for its "welfare program" (combining self-insured plan with fully-insured benefits) without a plan document properly "bundling" all benefits. As I see it, Plan sponsor has the following options: 1. Maintain 1 plan: Adopt a mega wrap document that bundles both the existing self-insured medical plan with the fully-insured ancillary benefits 2. Maintain 2 Separate Plans: Wrap the fully-insured ancillary benefits under one mega wrap document and maintain the existing self-insured medical plan as a separate document. 3. Amending the existing plan document for the self-insured medical plan to include the fully-insured ancillary benefits. My gut tells me to go with option #2 (thereby maintaining two separate plans...the existing self-insured medical plan document and a wrap for the fully-insured benefits) as I feel there could be complications with bundling an existing ERISA plan document with ancillary benefits under one plan. Any pros/cons to either of these approaches? Thank you!

Greetings: Plan sponsor is in the process of winding down and terminating all of its benefit plans. All plans have 100+ participants. It came to our attention that over the past number of years, plan sponsor had been filing only ONE Form 5500 for ALL of its ancillary benefits (AD&D, LTD, Life Insurance, PPO, etc) in addition to its partially-insured health plan (medical & RX drug). Meanwhile, a (mega) wrap plan document was never in place bundling these benefits. It is our position that a retroactive wrap document cannot be used to retroactively bundle benefits which were previously and incorrectly reported under a single Form 5500 (although it does permit a single filing under DFVCP and help with a single $4,000 penalty). That said, is it possible that this is an Form 5500 amendment issue (since a Form 5500 was in fact filed each year, just incorrectly and for the wrong plan name) and thus inappropriate to be filed under DFVCP? I am more inclined to recommend correction under DFVCP since I see this as a non-filer issue (Form 5500 that was filed was under a non-existent plan name) and client would rather pay the $4,000 filing fee and rest assured that the matter has been put to bed. Lastly, since only one Form 5500 was filed covering both (a) the partially-insured benefit plan (which has an ERISA plan doc), and (b) The fully-insured ancillary benefits (which does not have a plan document), which do you think is the better course of action: (1) Include both the partially-insured benefit plan (which has its own plan document) and the filly insured anciliary benefits into a mega wrap plan document and file only one Form 5500 under DFVCP (2) Exclude the partially-insured benefit plan from the mega wrap document (so just bundle the ancilary benefits) and file 2 seperate Form 5500s. Thoughts and Feedback would be most appreciated. Thank you!

Plan sponsor is getting push back from new TPA about having the plan added as an additional insured to TPA's E&O Policy. According to TPA, the insurance broker does not permit the plan to be added as an additional insured. Any thoughts on whether this is common practice?

Also, as a point of clarification, the former employee is asking for a letter from the Plan stating that his ex-wife started to collect the retirement benefit (not the particulars/amount). Would the former employee (as an eligible participant) otherwise have a right to this information?

Thank you for the response thus far. Yes, the QDRO was finalized. AP get 100% of participant's benefit. Employer recently terminated the Plan, so Participant became fully vested and thus AP started receiving benefits. Thank you, this is the heart of the issue...in denying the Participant's request for ex-spouse's account information, is there even an argument that could be made for why it could be necessary to include the standard ERISA Claims appeal process language? My feeling is no, but would be curious if anyone believes it could be necessary to include.

Facts: Employee (participant) has a QDRO designating that his ex-wife receive ALL of his benefits under the 401(k) Plan. Employee is now requesting documentation from the Plan that his ex-wife stated receiving benefits under the Plan. The Plan Administrator does not wish to provide this information to employee. Question: In denying the employee's request, is Plan Administrator obligated to provide the standard ERISA claims procedure rights (appeal process, etc)? In essence, is an employee who no longer has any benefits under the Plan as a result of a QDRO still deemed a Plan Participant? And if so, must he/she receive notice of ERISA rights to appeal? Your insights are greatly appreciated. Thank you!

Would appreciate any feedback on experiences with requesting a "minor" modification of a VCP Compliance Statement. Are such attempts typically successful? If request is denied, are there negative consequences? Applicant discovered some additional corrections needed to be made within the 150 day period after receiving Compliance Statement. These corrections all related to the SAME underlying failures included in the VCP. At question is whether the corrections below could be considered "minor": 1. Three (3) participants were included in original VCP as "Overpaid" (not being fully vested at time of termination). However, it was later discovered that they were not in fact overpaid (were age 65 at time of termination thus fully vested). Overpayment letters were sent to participants and then later retracted upon the discovery. 2. Due to missing payroll records, Applicant listed certain assumptions in the VCP submission as a result of missing data. This data was later discovered, and it was determined that this assumption was not correct for 24 participants. The result was that the OVERPAYMENT to these participants had been originally calculated to be greater than it actually was. Thus, OVERPAYMENT amount decreased. 3. Due to multiple record payments, two (2) participants believed to have received OVERPAYMENTS had in fact received a slight UNDERPAYMENT Does IRS take into consideration the ratio of the corrections made under the original VCP submission to the number of modifications required in determining "minor"? Any input is greatly appreciated. Thank you! -

Thank you, Mojo. Would you agree that that QNEC would count to the $54,000 aggregate Contribution limit?

Thanks, Mojo. Can you provide a reference for this? I am looking at the following, which seems to suggest that QNEC for a missed opportunity would count towards part of the $18K limit. Would it count towards the $54,000 limit then instead: EPCRS Appendix B section 2 .02 F(F) Special Rule for Brief Exclusion from Elective Deferrals and After-Tax Employee Contributions. An Plan Sponsor is not required to make a corrective contribution with respect to elective deferrals (including designated Roth contributions) or after-tax employee contributions, as provided in sections 2.02(1)(a)(ii)(B) and ©, but is required to make a corrective contribution with respect to any matching contributions, as provided in section 2.02(1)(a)(ii)(D), for an employee for a plan year if the employee has been provided the opportunity to make elective deferrals or after-tax employee contributions under the plan for a period of at least the last 9 months in that plan year and during that period the employee had the opportunity to make elective deferrals or after-tax employee contributions in an amount not less than the maximum amount that would have been permitted if no failure had occurred. Tom Poje - Also looking at a previous thread on this topic that you contributed to, found here:

Employer did not use the plan definiution of compensation correctly and excluded bonus payments for 2 now former employees. Sef-correction is being performed after severance from employment. Would the 50% employer corrective contribution count towards the employee's $18,000 annual contribution limit for 2017? Thank you!

Thank you very much RatherBeGolfing and Mike Preston, this is most helpful. One follow up question - In addition to satisfying the Minimum Coverage Requirements under 410(b), would Nondiscrimination Testing also be required for Option 3 (where the employer match varies), or would Nondiscrimination Testing be required for both options? Thanks

Hello all. Any experience or insight as to excluding a classification of employees from a traditional 401(k) plan would be helpful: ISSUE: Employer (traditional 401(k) Plan Sponsor) wishes to exclude a division of employees working on a new contract in order reduce costs and win contract. This would include mostly new employees hired to perform under this contract as well as a handful of current employees who already participate in the plan. The [Note: not a full time vs. part time classification issue and this is also not a new line of business for the Employer.] [Option 1]: I believe the Employer can exclude the NEW HIRES from participating in the plan (so long as Plan meets minimum coverage requirements). However, could the Employer exclude the CURRENT employees (already in the plan) from accruing additional hours of service for their work in this division, or would this constitute a cutback in benefits? [Option 2]: Alternatively, could the Employer exclude all employees in this division (new hires and existing employees) by requiring 3 years of service in order to be eligible (currently plan doc requires 1 month)? [Option 3]: Alternatively, could the Employer include both new and existing employees in this division in the Plan but with less of a match? (Concern is that decreasing the match for existing employees in the plan could be a cutback in benefits) Your thoughts are most appreciated. Thank you!

Thank you. But presumably it would result in the IRS contacting the DOL...

ISSUES: Employer provides in its employee handbook "Employer will contribute 1% of employees bi-weekly pay to the employee as an incentive to participate" QUESTION: Could this lead an IRS auditor to determine that the 403(b) plan is subject to ERISA? BACKGROUND: Employer is under IRS audit of its 403(b) and 457 (b) plans. There are a number of compliance issues. Employer never maintained a 403(b) plan document, so we are hoping to use to "paper clip" approach, which would involve providing Employee Handbook with master annuity contract. Employer did not believe it was operating an ERISA plan, although vendors have some concerns about Employer's "discretionary authority." We are contemplating advising the Employer to apply for relief under DFCP for 5500s (which have never been prepared) before its too late. The plan has been in existance since 1981...

Greetings, Is it recommended to refrain from depositing calculated corrective contributions until after a VCP submission has been reviewed and blessed by the assigned reviewer? On the one hand, if the IRS reviewer does not agree with the amount of the corrections, and the corrective contributions have already hit affected participants' accounts, it would make matters more difficult. On the other hand, if the deposits are not made until after confirmation by the IRS reviewer (which could be months later), the amount of lost earnings would be for a longer period and at a greater expense to the plan sponsor. Assuming deposits are not made until after the IRS gives its blessing on the proposed corrections, how far out is it recommended that the lost earnings be calculated to (i.e., the end period for the interest calculation)? Thank you!

Greetings, Is it permissible to submit a "supplement" to a VCP already submitted for an additional failure/correction? We are submitting a VCP for an employer match failure and it has come to our attention that a vesting correction must also be made to affected participants. Has anyone been able to supplement a submitted VCP for an additional correction? Or would this be at risk of requiring an additional VCP submission/fee. Thank you.

Perhaps Form 14568 - Model VCP Compliance Statement - Schedule 2: Other Nonamender Failures and Failure to Adopt a 403(b) Plan Timely ?

Plan Sponsor of 401(k) plan is filing a VCP submission for other unrelated failures. During course of investigation, it was determined that one of the participating employer never signed an adoption agreement, as required under the terms of the Plan Document. A retroactive amendment was prepared adding the participating employer, along with a restatement of the Plan's adoption agreement. We are preparing a VCP under Form 14568 Model VCP Compliance Statement. Would a particular Schedule/form also be required for this error/correction? Thank you!

A parent company was formed after a company merger (Parent, Company A and Company B). Both companies in the merger have their own 401(k) Plan. Intent is to rename the plan sponsor of Company A Plan as Parent Plan and make Company B a Participating EMployer. Issue is that the EIN assigned to the Parent is the same EIN as Company B. The goal is for their to be no new participants in Company B Plan (but not to freeze it), with all new participants going into Parent Plan. Any thoughts? Thanks.

Plan Sponsor applied an incorrect match % to certain employees for a 3 year period (in addition to failing ADP/ACP). All employee defferrals were prcessed timely and properly. Correction for the incorrect matching % is being done via VCP. Would this also require a VFCP filing? My take would be yes, since a prohibited transaction occured as a result of the incorrect match (and not corrected with the year) and for the lost earnings. However, I do not see any applicable boxes on the VFCP model application. Any suggestions?