jpod

We know that the SSA notices are often wrong, either because of an internal mistake at the SSA or because the PA never reported the distribution of benefits to the participant on the Schedule SSA (or whatever it used to be called before it was moved to a separate filing). Nevertheless, unless the employer has some evidence to contradict the SSA notice it should be enough to get by a motion to dismiss.

Is there an elephant in the room: Are they asking for more cash wages in place of the plan contributions?

The people who "believe" this are those who know just enough about ERISA and plan administration to be dangerous, but have not been trained properly.

If there is no evidence of any intent to terminate 001, or to establish a new plan and merge 001 into 002, I would amend the filings which are incorrect. Should check the new document, however, and make sure it doesn't purport to identify the plan as 002, but even if that happened I would fix that rather than concede that there was a new plan established.

To me the distinction here is obvious. In the examples cited the Amish are being asked to do something which they feel would be inconsistent with their faith. In this case they aren't being asked to do anything.

Well, not to get all legal here, but waiving participation or writing the plan document to exclude them from participation is not a reasonable accommodation if it puts the qualified status of the plan at risk or overly complicates plan administration, or both. The fact is, they don't need to be accommodated because it has no impact on their working conditions and when the time comes to take a distribution they can give it all to charity, or to Uncle Sam. Now, if it is just a question of being respectful and not a legal question, I get it, but still they shouldn't expect the employer to do something that could present tax problems for the employer and the other employees in the plan, or that would overly complicate plan administration. The sharia issue is completely different, and in fact there are sharia-compliant mutual funds available in the marketplace.

RBG, as to your last paragraph, do they object to being paid wages for their work? I think not. The employer contributions are just deferred wages for their work, possibly subject to vesting conditions, but deferred wages nonetheless.

I don't see why it is a lack of respect for someone's religious beliefs to make no-cost plan contributions for him or her (it certainly wouldn't be a civil rights law violation). Please explain. I understand the concern of Muslims with plans that don't have an investment option that meets their needs, but that's a different issue.

Say you have a one-person "solo 401k" maintained by a Schedule C filer. Her net income from self-employment is $20,000. She is age 50+. While she may be able to contribute $26,000 without disqualifying the plan, she'll only get a deduction for $20,000, right?

All of this is interesting but off point. I am assuming for purposes of my inquiry that the participant is entitled to a benefit, subject to being outside the SOL.

I don't know for sure but I think the SSA letter would almost guarantee that the participant, as a plaintiff in State of Federal Court, can survive a motion to dismiss by the employer.

I didn't know that, but assuming it is true PBGC can come back to the employer with a subrogation-like claim, can't it?

MP: Why is it a PBGC issue? I am looking at this from the plan sponsor's perspective, i.e., evaluating its exposure.

For the ERISA lawyers out there, and anyone else who wishes to weigh in. DB Plan terminated and final distribution of assets made in 1999 (yes, 18 years ago). It was smooth sailing through PBGC. Now, in July 2017, a former employee receives notice from SSA telling him that he might have a benefit under the DB Plan. That notice could very well be wrong, due to a Social Security Administration error or the Employer/Plan Administer having failed to list this individual in a Schedule SSA long ago as having received his benefit. On the other hand, it is theoretically possible that the employee is entitled to a benefit because he fell through the cracks during the termination process and never received his benefits in cash and was never included on the annuity purchase list. What is the limitations period for this employee to bring a claim? Is it the most comparable state law limitations period (usually for breach of contract), and if so when does the clock start to run: at the Plan termination date or now? Or, is there a possible ERISA breach of fiduciary duty claim with a 3-year or 6-year SOL starting now? Is the termination of the Plan in accordance with all PBGC rules at all relevant? Please resist the temptation to suggest that we go back into the records and try to find out what happened to this individual's benefits. Assume he never received the benefit he was entitled to receive and has a slam dunk claim but for the SOL issue.

For DB plan terminations subject to PBGC requirements, other than for "small" plans (let's say more than 25 or more participants), what is your experience on the division of responsibilities? 1. No ERISA attorney involvement; plan actuary prepares all filings, notices, any necessary plan amendments, and represents plan sponsor/plan administrator before PBGC and, if applicable, IRS. 2. Plan actuary does everything, subject to ERISA attorney review. 3. ERISA attorney does everything except calculations and certifications required by the actuary. 4. Other?

Is there a rule in the regs or some other guidance saying that holding the deed in the USA does not satisfy the indicia of ownership requirement?

Agree with FGC on all points. Plus, sometimes the intestate heirs will ask to skip the probate process and just have the benefits paid to them directly. This could become a big problem for the PA if, for example, another intestate heir pops up or there are creditors of the estate who would stand in line in front of the heirs.

She's probably right about that. Usually (always?) intestacy priorities work their way down only from the decedent's grandparents, and she would be a sibling of a grandparent so therefore out of the chain.

There are 14 first cousins, and no living siblings of the deceased parents? Sounds highly unlikely. Or, does the intestacy law of the state prefer cousins over siblings of deceased parents? Also highly unlikely.

Is this an audit of the plan sponsor/employer, or of the plan? If it is the plan sponsor, I don't understand how it would not be an asserted claim as described in the Treaty. If it is an audit of the plan, I don't see how this matter is pertinent to the financial statements of the plan.

Presumably the plan does not say "hire date." Most likely it says the first date "credited with an hour of service." Sounds unlikely that this occurred on January 1 based on the regulations' definition of "hour of service," which, again presumably, is stated or incorporated by reference in the plan. I don't see room for interpretation. Somebody decided that the plan should have bi-annual entry dates, rather than entry on 6-month anniversary, so stick with what the plan says. If you don't like that result amend the plan for this person, or for all similar situations.

First, this is not a question of whether a contemporaneous consent is required, it is whether a pre-death consent is required. Second, I am not so sure that is what QDRO is saying. See my last post. He evidently has specific language baked into his documents permitting post-death consents, and my client's plan does not.

So, based on that experience with IRS is it your understanding that if the plan document is silent the IRS would say you can't consent post-death? Or, would IRS say it is an interpretative issue within the PA's discretion provided that discretion is exercised on a consistent basis?

The document doesn't expressly state a rule one way or the other, just like the law and regulations, but you seem to be suggesting that the law wouldn't prohibit post-death consents. What is the source of this confidence on your part?

My question is: If the participant created an otherwise perfectly valid written beneficiary designation, can the spouse consent to it post-death? It doesn't sound like you've dealt with this issue multiple times, or perhaps I misunderstand.