Everett Moreland

You may continue to use the April 2011 version of Form 5300. See the following, especially the last sentence, from the 6/24/13 IRS Employee Plan News: Form 5300 -Use April 2011 Version Plan sponsors can continue using the April 2011 version of Form 5300, Application for Determination for Employee Benefit Plan, and its instructions until we announce the release of the final updated version later this year. We released draft revisions to Form 5300 and its instructions in February 2013. When we release the final version, you may continue to use the April 2011 version for six months after its publishing date.

I agree with Kevin C. I've submitted several nonamenders and nothing occurred that made me wish I'd filed anonymously.

A governmental 401(a) plan can exclude a participant's service while the refused or failed to contribute to the plan. Pick-up contributions cannot be elective by the employee.

The answer to your question depends on facts you have not described. Most likely the answer is that it is a governmental plan. For a start on answering your question, see: ERISA section 3(32): "The term "governmental plan" means a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. . . . ." IRC section 414(d): "For purposes of this part, the term "governmental plan" means a plan established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. . . . ." Proposed Treasury Regulation section 1.414(d)-1 and the discussion in the preamble, at 76 Federal Register 69172 (11/8/11) and 76 Federal Register 76633 (12/8/11), dealing with pension plans.

From 2012 Instructions for Form 5500: "Do Not File a Form 5500 for a Welfare Benefit Plan That Is Any of the Following: "* * * * "3. A governmental plan."

Maybe the quality assurance bulletin here will help: http://www.irs.gov/pub/irs-tege/qab_102411.pdf

see the prior discussion here: http://benefitslink.com/boards/index.php?/topic/18034-health-ins-vs-403b/

See DaimlerChrysler Corp. v Cox, 6th Circuit, 5/23/06

"The Court finds, for the reasons discussed herein, that the plan’s accrued benefit is the annual benefit commencing at normal retirement age for annuitants. That benefit includes COLAs under the terms of the Arkema Plan, and, under ERISA, where a defined benefit plan chooses to offer a lump sum one-time distribution, pensioners who opt for lump sums must be given the actuarial equivalent of that benefit. In this case, that means lump sums must include the actuarial equivalent of the COLAs that are promised and provided to annuitants." Lightfoot v Arkema, Inc. Retirement Benefits Plan (D. N.J. 6/27/13), available here: http://docs.justia.com/cases/federal/district-courts/new-jersey/njdce/1:2012cv00773/270293/56/0.pdf?ts=1372423130

As to "Why not mention insurance contracts here? see: http://www.annuity-insurers.org/pdfs/4.11.11.attach.pdf http://www.annuity-insurers.org/pdfs/4.16.12.attach.pdf http://www.annuity-insurers.org/pdfs/5.1.12.attach.pdf

1.415©-1(b)(6)(ii)(A): (ii) Special timing rules—(A) Corrective contributions. For purposes of this section, if, in a particular limitation year, an employer allocates an amount to a participant’s account because of an erroneous forfeiture in a prior limitation year, or because of an erroneous failure to allocate amounts in a prior limitation year, the corrective allocation will not be considered an annual addition with respect to the participant for that particular limitation year, but will be considered an annual addition for the prior limitation year to which it relates. An example of a situation in which an employer contribution might occur under the circumstances described in the preceding sentence is a retroactive crediting of service for an employee under 29 CFR 2530.200b–2(a)(3) in accordance with an award of back pay. For purposes of this paragraph (b)(6)(ii), if the amount so contributed in the particular limitation year takes into account actual investment gains attributable to the period subsequent to the year to which the contribution relates, the portion of the total contribution that consists of such gains is not considered as an annual addition for any limitation year. 1.415©-2(g)(8): (8) Back pay. Payments awarded by an administrative agency or court or pursuant to a bona fide agreement by an employer to compensate an employee for lost wages are compensation within the meaning of section 415©(3) for the limitation year to which the back pay relates, but only to the extent such payments represent wages and compensation that would otherwise be included in compensation under this section.

See QAB 12-1 here: http://www.irs.gov/pub/irs-tege/qab_102411.pdf

See the following from the 2003 ABA JCEB IRS Q&A: 12. §401(a)(9) – Required Minimum Distributions Treas. Reg. 1.401(a)(9)-2, A-2(a) provides that except in the case of a 5%-owner, the "required beginning date" is April 1 of the calendar year following the later of the calendar year in which the employee attains age 70-1/2 or the calendar year in which the employee retires from employment with the employer maintaining the plan. Assume that the employee is age 73, is not a 5%-ower, and "retires" on December 31, 2003, as the term "retires" (and related term "retirement") is commonly used by the employer and under the terms of the employer’s qualified§401(k) plan. However, in fact what this means is that December 31, 2003, is the employee’s last day at work, and the last day for which he is paid or entitled to payment. January 1, 2004 is the first day he is not employed by his employer. When is the employee’s required beginning date? Proposed Response: For the purpose of Treas. Reg. 1.401(a)(9)-2, A-2(a) "the calendar year in which the employee retires from employment with the employer maintaining the plan" is 2004, not 2003, and therefore his required beginning date is April 1, 2005. Moreover, the employee’s first distribution calendar year (Treas. Reg. 1.401(a)(9)-5, A-1(b)) is calendar year 2004. IRS response: The IRS disagrees with the proposed answer. When an employee retires is a facts and circumstances determination, but generally an individual’s last day of work is when the employee retires. Other facts, such as the employee returning to work on a sporadic basis after the official date of retirement, could change the answer. But under the facts presented in this question, the last day of service, December 31, is the date of retirement.

As to the cut-back, see Carter v. Pension Plan of A. Finkl & Sons Company (7th Circuit 2011), available here: http://www.leagle.com/xmlresult.aspx?xmldo...LWAR3-2007-CURR

The IRC allows it. State wage payment laws might prohibit deduction of a plan contribution from an employee's wages unless the deduction is authorized by the employee or (if the employee is in a bargaining unit) the employee's union.

No. See the form instructions.

My memory is that the remedial amendment period to amend a governmental DC plan for 401(a)(9) is governed by Notice 2003-72 and to amend a governmental DB plan for 401(a)(9) is governed by Notice 2003-10. I don't recall an extended remedial amendment period for 401(a)(9) for governmental plans.

From Form 14035, Pilot Questionnaire for Governmental Plans Initative (February 2009) (available at http://www.irs.gov/pub/irs-pdf/f14035.pdf): "Under the Code, the exclusive benefit rule requires that, except for the payment of plan expenses, plan assets must be used for the exclusive benefit of participants."

Search the document at the following link for "remedial" and you will discover that the HEART act amendment is not late: http://www.irs.gov/pub/irs-tege/403b_issue...resentation.pdf

I believe that the following sections 7.02(6) and 7.03 from RP 2008-50 indicate that failure to correct the failure may cause it to be significant: .02 Factors. The factors to be considered in determining whether or not an Operational Failure under a plan is insignificant include, but are not limited to: (1) whether other failures occurred during the period being examined (for this purpose, a failure is not considered to have occurred more than once merely because more than one participant is affected by the failure); (2) the percentage of plan assets and contributions involved in the failure; (3) the number of years the failure occurred; (4) the number of participants affected relative to the total number of participants in the plan; (5) the number of participants affected as a result of the failure relative to the number of participants who could have been affected by the failure; (6) whether correction was made within a reasonable time after discovery of the failure; and (7) the reason for the failure (for example, data errors such as errors in the transcription of data, the transposition of numbers, or minor arithmetic errors). No single factor is determinative. Additionally, factors (2), (4), and (5) should not be interpreted to exclude small businesses. .03 Multiple failures. In the case of a plan with more than one Operational Failure in a single year, or Operational Failures that occur in more than one year, the Operational Failures are eligible for correction under this section 8 only if all of the Operational Failures are insignificant in the aggregate. Operational Failures that have been corrected under SCP in section 9 and VCP in sections 10 and 11 are not taken into account for purposes of determining if Operational Failures are insignificant in the aggregate.

For 415 purposes, an employer's 403(b) plan is almost always treated as maintained by each participant in the 403(b) plan, not by the employer. See 1.415(f)-1(f) and the exception in 1.415(f)-1(f)(2). So it is unlikely there is an error.

RP 2007-44, sec. 5.03(2): "(2) In addition, the same extension of the remedial amendment period applies to a disqualifying provision described in section 5.01 in the case where the employer (or sponsor or practitioner, if applicable) reasonably and in good faith determines during the period when an interim amendment to reflect a qualification change would otherwise be required under section 5.05 that no amendment is required because the qualification change does not impact provisions of the written plan document. Thus, for example, if a sponsor, practitioner, or employer makes such a determination and the Service in its review of the opinion, advisory, or determination letter application finds that an amendment is required, the plan would still be eligible for the five or six-year remedial amendment cycle to correct the disqualifying provision as described in section 5.01. The Service will make the final determination in all cases as to whether the sponsor’s, practitioner’s or employer’s determination that no interim amendment was required was reasonable and in good faith."

matt2800: If I understand your post, what you describe seems to be a defined benefit plan.

Are you comfortable that setting age 62 as the upper age is consistent with the ADEA?

See the following section 5.07(3) of Revenue Procedure 2008-50: (3) An Employee Plans examination also includes a case in which a Plan Sponsor has submitted any Form 5300, 5307 or 5310 and the Employee Plans agent notifies the Plan Sponsor, or a representative, of possible Qualification Failures, whether or not the Plan Sponsor is officially notified of an "examination." This would include a case where, for example, a Plan Sponsor has applied for a determination letter on plan termination, and an Employee Plans agent notifies the Plan Sponsor that there are partial termination concerns. In addition, if, during the review process, the agent requests additional information that indicates the existence of a Qualification Failure(s) not previously identified by the Plan Sponsor, the plan is considered to be under an Employee Plans examination. If, in such a case, the determination letter request under review is subsequently withdrawn, the plan is nevertheless considered to be under an Employee Plans examination for purposes of eligibility under SCP and VCP with respect to those issues raised by the agent reviewing the determination letter application. The fact that a Plan Sponsor voluntarily submits a determination letter application does not constitute a voluntary identification of Qualification Failures to the Service. In order to be eligible to perfect a determination letter application into a VCP submission, the Plan Sponsor (or the authorized representative) must identify each Qualification Failure, in writing, to the reviewing agent before the agent recognizes the existence of the Qualification Failure(s) or addresses the Qualification Failure(s) in communications with the Plan Sponsor (or the authorized representative).