J2D2

My understanding is the same as yours, tintree73. Has the attorney provided any citations that support his position?

To follow along on Alf's comment - If the children are not performing services for B that would support the salaries they are being paid, isn't there a risk that the IRS might determine that the salaries really are dividends?

I agree. Could you also justify on the grounds that honoring the request to defer, when all other balances under $5,000 are cashed-out, would be providing the alternate payee with an option not available to other participants?

Off the cuff, I'd recommend leaving it up for 60 days beyond the filing date. If memory serves, 60 days is the outside time limit for interested parties to submit comments to the IRS or DOL.

Just wanted to revive this post to see if anyone has seen any more IRS activity on the Section 125 non-discrimination testing issue.

Thanks for the responses. There are (at least) a couple of reasons I was hoping to stay outside IRC 105 & 106. First, the shots are available to all employees, even those who are not participating in the employer's group health plan. Second, if the employer otherwise offers fully-insured group health benefits, would it have to adopt a separate plan under 105(h) just to cover the flu shots?

Employer arranges to have health professionals on site to give flu shots to employees. Employer pays the full cost of the shots and does not report the value of the shots in the income of those employees who elect to get stabbed. Has anyone addressed the issue of whether such an arrangement qualifies as a de minimis fringe benefit?

A recent thread on the Cafeteria Plans board noted the informal IRS position that an employer whose only employees were HCEs could not have a cafeteria plan because it would fail the non discrimination test. Has anyone considered whether the same reasoning might apply in the case of a self-insured medical expense reimbursement plan or MERP? IRC Section 105(h) and the underlying regs seem to require a non discrimination analysis based on the terms of the MERP, rather than an operational test. The BNA Tax Management Portfolio #389 also takes this approach, stating that "Discrimination is determined by reference to benefits available under the plan, not to amounts actually paid." However, after another review of the regs, I'm not so sure. In our case we have an employer with only HCEs and a MERP that, by its terms, provides the same benefits to all participants and has the same eligibility requirements for all employees. Obviously, I'd like for BNA to be correct. Any thoughts? Thanks.

Have recently taken on a plan that definitely is a late amender for GUST and appears to never have been amended for TRA 86 (we're still reviewing files and hope to find a more recent document). Has anyone looked at the issue of whether the VCP user fee is assessed only once in this situation? In other words, will our $750 cover both the TRA 86 & GUST amendments? Thanks, JD

Non-contributory (I think) defined benefit plan holds employer stock (assume the 10% holding rule is not an issue) and now wants to sell that stock. Employer is listed (not sure which exchange). Is the plan subject to any SEC filing requirements for the sale of the employer stock? Thanks.

Don't forget that Stones classic (as updated by the Capitol Steps), Get Offa My Lawn.

Retiree who is receiving monthly pension from defined benefit plan has asked if he can assign the monthly payments to a revocable trust he has established. He represents that he is taxable on the income of the revocable trust. Pension plan does not currently allow the arrangement requested by the retiree. Other than the anti-alienation rules (and the lack of authorization in today's plan document), what other problems/issues do you see with the retiree's request? Thanks.

Thanks, papogi.

papogi, In your response to Jeff V, you note that a health FSA is exempt from HIPAA if 2 conditions are met. Do you have a cite? Does this exclusion extend to the HIPAA privacy rules? Thanks.

Sorry if I wasn't clear. Our client is considering trying to qualify as an IRA trustee/custodian. In addition to walking the client through the requirements of the regulations, I was hoping to be able to give the client some idea of what to expect in terms of timing, etc.

Would appreciate any feedback from folks who have applied to the IRS to qualify a non-bank entity as an IRA trustee/custodian. For example, how long was the process from filing to completion, how helpful/obstructive was the IRS, etc.? We are in the preliminary phases of researching this for a client and are interested in the experiences of others. Thanks.

I know there have been several threads discussing the options for dealing with benefits owed to participants who can't be found. Just wonder if anyone has heard anything new, either official or "un", in recent months from our friends in DC.

Does anyone know if the IRS has issued any additional guidance (beyond Q&A 7 of Notice 2000-3) on providing the safe harbor notice electronically?

Can I get an "Amen" for Harry O! "AMEN!"

My recollection is that it is a combination of the two. First, in your situation, the employer appears to have ceased to have an obligation to contribute for one or more, but less than all, facilities. That means you have a partial withdrawal. Second, the amount of partial withdrawal liability is a portion of the liability the employer would incur for a complete withdrawal. Vast oversimplification (and subject to my rapidly failing memory) but hope this is helpful.

Just to close the loop . . . According to the DOL Office of Chief Accounting (I was directed there after calling the general PWBA help number), DFVC is not available to correct this issue. DOL views this as a deficiency, not a failure to file. Their position is that we file an amended 5500, with appropriate schedules and the accountant's report, and that no penalties will be assessed. Penalties will be assessed only if you do not respond to a notice from the DOL requesting the appropriate items.

And even if she is at least 59-1/2, only if the plan allows in-service withdrawals.

Has anyone seen any articles, surveys, etc. on the issue of using interim valuations to make distributions? With the rapidly changing (mostly declining) markets, those remaining plans using annual, semi-annual and even quarterly valuation dates could be facing some difficult issues when it comes to making distributions based on stale valuations. I've seen cases on both sides of the issue, but have not yet been able to distinguish a trend. Thanks.

Plan was first required to file accountant's report with Form 5500 for 2000 plan (calendar) year. For reasons yet to be determined, the plan did not include the report with the 5500. Appropriate correction appears to be filing an amended 5500 with the report (and any other corresponding changes). Section 2.01 of DFVC Program says that relief is not available for "annual reports that are determined by the Department to be incomplete or otherwise deficient." So it looks like we don't file an amended 5500 under that Program. DOL Reg. 2560.502c-2(B)(3) indicates that no penalty will be assessed under ERISA 502©, provided that a revised report is filed within 45 days after the DOL rejects the initial filing. However, I haven't found any DOL position on the assessment of penalties when an incomplete filing is voluntarily corrected before the DOL rejects the initial filing. Does anyone have any experience with the DOL position on the assessment of the civil penalty when you simply file an amended 5500 before receiving a formal notice of rejection from DOL?

Good answer, RLL!! Thanks. J2D2