Belgarath

What is your definition of "senior" - ??? I just lean towards "yeah, I'm a senior" - it covers all contingencies. I have to say that the benefits of growing older have largely escaped me. Maybe I'll think otherwise when I retire! And as Elmer Fudd would say, "Be vewy cafew." Some people on these boards lack a good sense of humor.

1/1/2010.

It does, but that right isn't unlimited. Anyway, I'm not going to spend much time on this until (or if) they engage our services! Thanks for the response.

Hi John - sorry I didn't make it clearer - I agree with you - the amendment I referred to was in fact signed by the client. I should have said that the TPA prepared the amendment for the client to sign. I haven't delved into the details yet, but after a cursory glance I have a feeling that this blanket override of all non-required provisions isn't accurate in terms of the actual plan operation...

Ain't that the truth!! Just saw one of those yesterday, in fact.

I understand the viewpoint - filing it is cheap insurance. However, I do have a question - when, if ever, have you had the IRS propose to disqualify a plan that you administer, where the SOL prevented taxation prior to the 3 year SOL period?

I came upon an interesting situation here. Governmental (Indian Tribal) 401(k) Plan is using an FIS VS document. The FIS VS document removes all ERISA items, but DOES NOT remove the IRS requirements normal for private plans. So, even though normal nondiscrimination testing, for example, is not REQUIRED by the IRS, the document requires it. To overcome this, the TPA did an "omnibus" type of amendment that, to paraphrase, says that notwithstanding any other language in the document to the contrary, the requirements of the IRC and regulations from which Governmental plans are exempt, shall not apply to this plan, specifically including but not limited to 401(a)(4), 410(a), 401(b), etc., etc... Now, this probably works ok, but it would clearly take it out of pre-approved VS status and the corresponding automatic reliance, so they should have applied for a determination letter, right? Or am I missing something?

Good news!

How did all you folks in the coastal sections make out? Is everything ok?

So let's say you have a "basic" 457 for a non-profit. They allow for both elective deferrals and (discretionary) employer nonelective contributions. The employer lets eligible employees know, at some point during the year, how much employer contribution they will be receiving so they can coordinate their elective deferrals, and not go over the limit. So let's say that for 2019, employer says they will contribute $10,000 for employee. Employee defers $9,000. All accounts are 100% vested. The document is silent regarding any deposit timing for the EMPLOYER nonelective contribution. Since this is an unfunded promise to pay, it would seems reasonable that there is never any deposit deadline, until payment is actually due. FICA tax is paid for 2019 as Austin mentions above, right? As a practical matter, if the plan permits participant direction of investments, as many do, then it is unlikely that the "decision makers" will allow an unreasonable delay in actually depositing the contributions, but there's no IRS deadline, correct?

Thanks. Brings up an interesting side question - suppose this person never satisfied the 1 YOS (1,000 hour) requirement to eligible to receive a PS allocation in the first place. They are "benefiting" under the employer nonelective portion of the plan, so still receive gateway, right, even though not eligible for any other PS contribution? And GOOD LUCK in the coming days.

Grrr.... I thought I understood this, but some discussion recently now has me questioning myself. Calendar year plan. Participant terminates employment 12/31/18. Receives final paycheck - just normal wages only - on 1/4/19. Plan uses W-2 compensation, and the determination period is also calendar year. Plan uses the "defaults" for 415 post-severance compensation purposes - that is, normal qualifying post-severance compensation categories are included for 415 purposes, and the plan does NOT utilize the "administrative delay" rule - also commonly referred to as the "first few weeks rule." For PLAN compensation, the plan includes, for all contribution categories, the allowable post-severance compensation categories - regular pay, leave cash-outs, etc.. So, the payment of wages received on 1/4/19 should have deferrals withheld, and the participant should receive a 2019 safe harbor nonelective, and therefore, for a cross-tested plan, also receive gateway. But since 1000 hour/last day, receives no other PS allocation. Participant Included in all other 2019 testing. Am I off my rocker on this?

I know Tom is in Florida, and many others as well. We'll be thinking about you - best wishes for all of you and your family, friends, and neighbors, and hopefully you will be relatively unscathed by the hurricane. Good luck!!!

So, suppose you have CG, consisting of Corps A, B, C, and D. A & B sponsor plan #1, and they run on a calendar plan and fiscal year. C & D sponsor Plan #2, and they run on a 10/1 to 9/30 plan and fiscal year. The numbers are such that either plan, no matter how you look at it, passes 410(b) and 401(a)(4) EASILY, as very few HCE's participate. However, as an academic exercise for future reference, suppose you are testing Plan #1 (calendar year) and you wish to determine the HCE's for 2019. When doing the 5% owner test, are you looking at 5% owners only in 2018 and 2019, or, would an owner who was a HCE in plan #2 in the 2017-18 plan year by virtue of ownership in December of 2016 be included? Seems like it should be the former and not the latter. Same type question for compensation test - for Plan # 1, are you looking solely at compensation during calendar year 2018, and HCE status under plan #2 for the plan year ending 9/30/19 is technically irrelevant? Maybe to try to condense the question, for plan #1, is the HCE determination made solely under the normal plan #1 timeframes (but taking into account all employees of all members of the controlled group)? I believe this is how it works...

Anyone have a pipeline to the IRS on the likely date for approval of DC docs and the opening of the next restatement cycle? Is smart money still on 2021, or is there any likelihood of 2020? Would obviously make a big difference in our planning...

Thanks.

Brain cramp! Participant terminates with outstanding loan - rolls loan note over to new employer's plan. Reported on 1099 as code G, or not reported at all?

Good grief! That was a wonderful, lucid and clear response, but I can't help thinking this blizzard of form numbers sounds like a M*A*S*H episode. "Sign this form to show that you initialed the other form instead of signing." Reminds me somehow of many, many years ago when we refinanced a mortgage. Sitting in the lawyer's office, we spent, actually, 20 minutes doing nothing but signing and initializing forms. The best part was that after all of this, we had to sign an affidavit saying that we were who we said we were when we signed all the other forms! Like if we lied on all the other forms that we would hesitate to lie on the affidavit...

As Sherpa alluded to earlier, will the rank & file have this option? The BRF testing must pass both current and effective availability. Current availability is a mathematical test, which might pass. I'm dubious that in a typical plan with rank & file employees that the "effective availability," which is a facts and circumstances test, will pass. If no rank & file participants, then scratch my comment.

Take a look at Revenue Procedure 2019-19, Section 6.07(3)(d). This may help you out.

Without doing any research whatsoever, my off-the-cuff opinion is that there is no basis generated due to the nondeductibility in this situation, and the distributions are an eligible rollover distribution to the extent they exceed RMD's. Again, I caveat this heavily that I haven't actually done any research to back up my thoughts.

Hey Tom - I echo all the good comments and sentiments that you have received, and will continue to receive. You're also one of the few people who appreciate (or at least somewhat understand) my own bizarre sense of humor. Good luck as you waltz through this next chapter in your life. It would be lovely if you have the time to occasionally post something humorous, but if not, it has been a pleasure corresponding with you on this board. Enjoy every day!

As far as my limited understanding goes, I agree with Mike that it is not excluded from the bankruptcy estate. But then there is an exemption under Section 522 of the Bankruptcy code. I defer to the attorney/actuary experts as to the practical difference, but I believe it has to do with the fact that under an exclusion, the bankruptcy Trustee has no jurisdiction. Under an exemption, I'm not sure what, if any, authority the bankruptcy Trustee might have, and if any authority, under what circumstances. Way out of my sphere...

Thanks all. I appreciate your time and expertise.

Thanks!