jpod

It has happened many times (none involving me). But fwiw your Notice better be timely AND accurate because I believe that is a jurisdictional requirement for challenging an IRS adverse determination in Tax Court.

My assumption/understanding has always been that the Notice is compliant if it simply uses the relevant dates after applying the regular numbers, and you don't have to consult a calendar to push those dates out by 1, 2 or 3 days to account for weekends and holidays. On the other hand I have also assumed that the IRS and DOL would allow the extra day or days to someone who actually wishes to comment.

1. There is a provision in ERISA that specifically says the ERISA Title I trust requirement does not apply to 403(b) funds. 2. You can't have a "trustee" without having a trust. If you form a trust to hold 403(b) contributions, under what Code section would it be tax-exempt?

I thought the issue of the plan's qualified status is irrelevant unless the debtor is someone who could have been responsible for the plan's loss of qualified status (like the owner of the employer, for example). Is that the case here?

You were divorced 24 years ago. It sounds like there is no QDRO with respect to either of your plan interests. What is it that makes you think that you need a QDRO or that a court would even entertain the notion of entering a QDRO 24 years after the fact? You may have a property settlement or divorce decree that says you must pay x% of your pensions to your ex-spouse, but that doesn't mean that you need or can get a QDRO. Maybe that was done intentionally so that the tax liability on your full pensions would be your tax liability (i.e., perhaps your lawyer got snookered by your spouse's lawyer). What you do need at this time is personal legal advice, not from a message board.

I agree with Andy's comments, but on the other hand I assume that the filing will be only 76 or 77 days late, so wouldn't the DFVCP stipulated penalty be only $760 or $770, rather than $1,500? Is $760 or $770 worth it just to avoid the aggravation of having to respond to IRS and/or DOL notices, possibly more than once?

Does the plan use the safe harbor definition of hardship? If not, why are we fixated on the "eviction" standard?

There shouldn't be any k-1 if he is in fact the sole owner. The LLC's income/expenses and, ultimately, his net earnings from self-employment, are reported on Schedule C to the 1040.

ESOP Guy: Fair enough; my bad.

ESOP Guy: In your example, why couldn't the ESOP use its $3,000 to fund the purchase of shares of accounts of participants entitled to a distribution (or entitled to diversify), and then allocate the shares so purchased to participants' accounts as earnings in lieu of the $3,000 cash? That is, of course, assuming there is no language in the plan document throwing up a roadblock.

How many people still in the plan have money purchase pension money in the plan? If that number is small it might be worth putting this behind you once and for all by doing a spin-off termination of the MPP piece of the plan and if one or a few participants (or their spouses) insist on an annuity, so be it (although the annuity purchase rates are terrible right now).

There are many other places in the Internal Revenue Code and regulations where the term "principal residence" is used. If it has been defined in any such other context to include OR EXCLUDE an outdoor in-ground pool, I would assume that the Plan Administrator could comfortably rely on that without worrying about plan disqualification. Unfortunately that creates a research project for you or someone else.

The motivation for the question is indeed a mystery, but I have a more fundamental question involving the indicia of ownership rule. If a plan owns 100% of a US-based LLC, and the membership agreement and all other indicia of ownership of its LLC interest are held in the USA, is the rule satisfied regardless of where the indicia of ownership of assets owned by the LLC are held?

Unless prohibited by the plan, there is nothing in the law that would prevent a participant from naming the spouse as 60% beneficiary and X as 40% beneficiary provided that the spouse consents to this.

the full time employees, the hce and the nhces, all have tons of service (and are over age 21)

It's a mature company with a new plan.

MWedell, here are my facts. 1. Plan is a new plan. 2. Three full time employees. One HCE (a 5%+ owner), two NHCEs. They will be immediately eligible. 3. Three part time employees, all NHCEs. They must complete 1,000+ of service in a 12-month period and then they are eligible immediately after the end of that 12-month period. They haven't yet, and probably never will. 4. If I disaggretate, is the ratio percentage of the portion of the plan covering the full time employees 100% or 40% (i.e., 2 out of 5 NHCEs benefitting)?

Single plan with dual eligibility requirements. Full time employees eligible first day on the job. Part time employees must complete one year of service (as per the 2006 Quality Assurance Bulletin). Therefore, 410(a) is satisfied. However, in testing the full time employee group for 410(b) coverage, are the part time employees who have not completed one year of service excludable, or are no employees excludable?

My 2 cents. 1. Get the 17% 401k return out of your head. It won't last. Starting today you can lose 17% over the next year (or two or more). 2. By taking a plan loan to pay off the student loan, you are saving the full 8.5%, not merely 4.0%. The reason being that you are paying it to yourself. If you were able to deduct any part of the 8.5% interest you are paying on the student loan, the trade-off may be different, but I doubt very much you can deduct the student loan interest. 3. Therefore, by taking the plan loan to pay off the student loan you are making an investment that is guaranteed to yield 8.5% year on the declining balance of the plan loan. This seems like a no-brainer to me. If you lose your job and the plan loan becomes due you can go borrow money from another source to pay off the plan loan and avoid the tax hit on a loan default if that makes the most sense at the time.

You can use SCP to correct by plan amendment in just a few circumstances specified in Rev. Proc. 2013-12. One is where you have allowed hardship withdrawals (on a nondiscriminatory basis), but the plan didn't permit hardship withdrawals. You can amend retroactively to permit the hardship withdrawals allowed, without going through VCP. What if the plan did allow for hardship withdrawals, but in operation you allowed them on a more liberal basis not permitted by the plan (but still consistent with the applicable rules for hardship withdrawals and on a nondiscriminatory basis). Can you amend your existing hardship withdrawal rules retroatively to match your plan operation without going through VCP, or can you do this through SCP ONLY if your plan didn't allow for any hardship withdrawals? Read literally, it looks like you need to go through VCP, but the logic of that escapes me.

Nobody does my documents. I am talking about clients who use VS or prototype documents provided by the largest providers (think "F" for example). Every change is a major undertakingn and frought with risk that something will get changed unintentionally. Happens quite frequently.

I still don't understand why anyone would bother to amend an adoption agreement to change the employer's address, unless you were making other (substantive) changes at the same time. Is there a risk that your recordkeeper/TPA will fire you if you don't? Each time a document is put in a prototype provider's hands to make a change there is a risk (in some cases greater than others) that it will mess something up in the document, therefore I advise my clients to review the entire adoption agreement each time a change is made. If the provider allows stand-alone amendments rather than a complete restatement, that eliminates the "mess up" risk, but it means that you end up with an unwieldy set of documents.

I agree with your strategy of not shooting yourself in the foot, that's why you need your own, confidential advice from someone who can evaluate the banking law issues which you are raising, but you'll have to make a cost-benefit analysis as to whether it's worth the expense.

It appears that you have a question of banking law here, more so than SERP/contract interpretation, so I doubt that anyone who comments on this Board would be in a position to help you, although I am always surprised by the talent that shows up on this Board. What would be the increase in your lump sum if an interest rate of, let's say, 4% was used rather than 6.35%? If the difference is significant enough you may wish to consider hiring an attorney with a banking regulatory background who can assess the issues for you. (And in determining whether the difference is "significant enough" keep in mind that you'll be giving a large chunk of the lump sum away in taxes.)

Let's be real here folks. Anyone wish to venture a guess as to the consequences of not amending to reflect the new address? There aren't any! (I am talking about the plan document/adoption agreement, not the SPD.)