KJohnson

Of course I meet be reading to much into it, but I always thought that this statement from Rev. Rul 89-87 meant that you did not have to comply with new law that is effective after the date of termination as long as you distributed assets as soon as possible .. . A plan under which all assets are not distributed as soon as administratively feasible is an ongoing plan and must meet the requirements of section 401(a) of the Code, in order to continue its qualified status It would seem that the corrolary would be that a plan whose assets have been distributed as soon as adminstratively possible does not have to meet the requirements of 401(a)..again I may be reading to much into it.

Is the safe harbor plan designed so that each year a decision must be made about the safe harbor contribution? That is the question to ask and it is primariliy a plan design question. A safe harbor NEC can be designed two ways. The Plan can say that the NEC will be made for each year from X date forward. If this is the case then your notice would be "definitive" and you would need a plan amendment to get rid of the safe harbor NEC prior to the beginning of the year. An alternate design exists with the "maybe" notice. In that instance the plan states that the employer may or may not give the 3% and that the employer will notify the employees within 30 days prior to the end of the plan year whether the 3% will be made. If the contribution is made, the employer must affirmatively amend its plan to reflect this contribution. If it is not made, I don't believe that you have to do anything. Ken

I say update as well based on the above. Actually I recently submitted a dc plan that terminated on 12/31/02. We had GUST and EGTRRA but the agent has asked for a final 401(a)(9) amendment. In terminations I usually just go ahead and do what the agent wants as long as it does not change anything substantive. However, this time I told them that the 401(a)(9) was not reuquired because the Plan was terminated prior 1/1/03. I have not heard back yet.

Also, as to rollovers I think there is a split in the Circuits. I believe that the 2nd Circuit says that you pro-rate distribution amounts between contributions and earnings for periods when the plan was qualified with contributions and earnings for periods when the plan was not qualified. My research file indicates that Greenwald v. Commr. is the case 366 F.2d. 538 (2nd Cir. 1966) although I haven't gone back to look at it. I think there is contrary opinions in the 5th, 6th, and 7th which say that you just look at the qualified status of the plan at the date of the distribuiton.

Below is the portion of the decision referenced by mbozek. Also, although I have not posted it, the decision is also a good read regading Merrill Lynch-- who tries to get out on the "directed trustee" route. Second Claim for Relief Plaintiffs' second claim for relief alleges that Ebbers, as an "Officer and Director Defendant," breached his fiduciary duty under Section 404(a) in two ways: first, by failing "to monitor" the Plan's other fiduciaries in connection with the investment of the Plan's assets and, second, by failing to disclose to the "Investment Fiduciary," that is to WorldCom, and other "investing fiduciaries" material facts he knew or should have known about the financial condition of WorldCom. The plaintiffs argue in this connection that Ebbers had a duty to insure that WorldCom made public disclosures that complied with federal securities laws. [FN13] These allegations state a claim against Ebbers. FN13. Plaintiffs suggest that public disclosures "coincident" with the SEC quarterly filings might have been adequate to comply with the ERISA duty to disclose. Ebbers argues that the second theory--the duty to disclose--arises under the federal securities laws and not under ERISA. He argues that allowing plaintiffs to state an ERISA claim for failure to disclose information that, if material, Ebbers would have been required by the securities laws to disclose impermissibly extends the reach of ERISA and imposes on corporations a duty of continuous disclosure not contemplated by the well-developed regime of securities regulation. *14 It is undisputed that every participant in WorldCom's ERISA Plan who sold or bought WorldCom securities is a putative member of the class in the companion WorldCom Securities Litigation, and that the Plan itself, like many other pension funds that invested in WorldCom stock, is also a putative class member. Ebbers is one of many defendants in that litigation. In the event of any judgment for plaintiffs or a settlement in the Securities Litigation, the Plan and its participants could share in any recovery. But Ebbers's potential liability to employees who invested in WorldCom stock through the Plan for violations of the federal securities laws cannot shield him from suit over his alleged failure to perform his quite separate and independent ERISA obligations. When Ebbers wore his ERISA "hat" he was required to act with all the care, diligence and prudence required of ERISA fiduciaries. When a corporate insider puts on his ERISA hat, he is not assumed to have forgotten adverse information he may have acquired while acting in his corporate capacity. Plaintiffs' allegation that Ebbers failed to disclose to the Investment Fiduciary and the other investing fiduciaries material information he had regarding the prudence of investing in WorldCom stock is sufficient to state a claim. Third Claim for Relief The plaintiffs' third claim alleges that Ebbers and Miller, as "WorldCom Defendants," breached their fiduciary duties by making material misrepresentations about the soundness of WorldCom stock and the prudence of an investment in WorldCom stock, and by transmitting materials containing the misrepresentations to Plan participants. Plaintiffs allege that by failing to disclose fully and accurately infirmities in WorldCom's stock price, Ebbers and Miller caused plaintiffs to make and maintain investments in WorldCom stock even though Ebbers and Miller knew or should have known that WorldCom securities were not a prudent investment. The misrepresentations are alleged to have been contained in WorldCom's SEC filings, which were attached as required by the federal securities laws to a prospectus given to WorldCom employees. [FN14] FN14. The federal securities laws require corporations that choose to sponsor a 401(k) plan that offers an employer's securities to file a Form S-8 registration statement with the SEC. Part I of the Form S-8 is the Section 10(a) prospectus that must be disseminated to employees under the Securities Act. See Securities Act, Rule 428, 15 U.S.C. § 77j; 17 C.F.R. § 230.428. The securities laws also require a Section 10(a) prospectus to attach other corporate SEC filings, including the filings giving rise to plaintiffs' third claim. See 15 U.S.C. § 77j; Commodity and Securities Exchanges Form S-8, 55 Fed.Reg. 23909-01, Item 3 (June 13, 1990) (Incorporation of Documents by Reference). An ERISA fiduciary may not knowingly present false information regarding a plan investment option to plan participants. There is no exception to the obligation to speak truthfully when the disclosure concerns the employer's stock. In arguments that overlap with those made in connection with the Second Claim, Ebbers and Miller argue that the Third Claim imposes a continuous duty of disclosure on ERISA fiduciaries that overwhelms the federal securities law disclosure requirements and compels fiduciaries to violate the prohibitions against insider trading. If an ERISA fiduciary who was also an insider discovers material information affecting the value of the investment in the Plan sponsor's stock, they posit that the fiduciary has one of two choices. If he discloses material information to Plan participants before making it publicly available, he would violate the insider-trading laws by suggesting to Plan participants that they divest stock based on material nonpublic information. See 15 U.S .C. § § 78u-1(a)(1)(B) & (b)(1)(A) (2002). If the fiduciary publicly discloses the material information, the Plan participants would be no more protected by virtue of ERISA than they would be as investors protected by the securities laws. They contend that plaintiffs' claim stretches ERISA far beyond its intended scope. They emphasize that the alleged material misstatements were the SEC filings incorporated by reference into the Plan SPDs and that those statements were prepared and published pursuant to the securities laws, not ERISA. Miller, in particular, argues that, if credited, plaintiffs' logic would impose ERISA fiduciary obligations on all authors of corporate SEC filings, a conclusion supported by neither the statute nor caselaw. *15 Those who prepare and sign SEC filings do not become ERISA fiduciaries through those acts, and consequently, do not violate ERISA if the filings contain misrepresentations. Those who are ERISA fiduciaries, however, cannot in violation of their fiduciary obligations disseminate false information to plan participants, including false information contained in SEC filings. Claim Three adequately pleads that Ebbers and Miller, each of whom is alleged to have been a fiduciary through inter alia his or her administration of the WorldCom Plan, breached their fiduciary obligations under ERISA by at the very least transmitting material containing misrepresentations to Plan participants. [FN15] FN15. Certain of the defendants' arguments, particularly those by Miller, are more appropriately made in the context of a motion pursuant to Rules 11 or 56, Fed.R.Civ.P. Because of the standards applicable to a claim governed by Rule 8 pleading standards, and the plaintiffs' decision to use generalized allegations against groups of defendants, the plaintiffs have not had to articulate in the Complaint how Miller would have acquired sufficient knowledge of WorldCom's financial condition to understand that it was not prudent or reasonable to rely on the company's SEC filings. The defendants have tried to describe a tension between the federal securities laws and ERISA that would require the dismissal of this claim. Their arguments, however, cannot undermine the soundness of the general principle underlying Claim Three that ERISA fiduciaries cannot transmit false information to plan participants when a prudent fiduciary would understand that the information was false. Nor is there anything in Claim Three, despite the defendants' suggestions otherwise, that requires ERISA fiduciaries to convey non-public material information to Plan participants. What is required, is that any information that is conveyed to participants be conveyed in compliance with the standard of care that applies to ERISA fiduciaries. The difficulties that exist in the analysis of this claim arise principally from the facts that at least one of the defendants, Ebbers, is alleged to be both a corporate insider and an ERISA fiduciary, and that the alleged misrepresentations concern the company itself. The defendants argue that the plaintiffs are imposing a duty of continuous disclosure on ERISA fiduciaries that does not exist under the federal securities laws. While there may be some case in which there will be a conflict between the two statutory schemes, it is not so evident that a conflict exists here. The Complaint alleges that WorldCom's SEC filings contained material misrepresentations regarding WorldCom's financial condition. Having spoken in its periodic SEC filings about the company's financial condition, WorldCom had a duty under the federal securities laws to correct any prior material misrepresentation when it became aware of the falsity. See In re Time Warner, Inc. Sec. Litig., 9 F.3d 259, 268 (2d Cir.1993). In any event, the existence of duties under one federal statute does not, absent express congressional intent to the contrary, preclude the imposition of overlapping duties under another federal statutory regime. See United States v. Sforza, 326 F.3d 107, 111 (2d Cir.2003). In conclusion, the motion to dismiss Claim Three is denied as to defendants Ebbers and Miller. This claim adequately alleges that they transmitted materially false information to Plan participants in breach of their fiduciary obligations

Here is a link to an article. It is a little dated, but has a good discussion. http://benefitslink.com/ppib/industrynews/...orrection.shtml

RTK's recollection is the same as mine. You have to get the forfeitures over to a 415 suspense account in order for a "reversion". Really the only way to get them there is if the forfeitures would be allocated to participant accounts and all of the participants have been terminated and have $0 comp so that allocation of any forfeiture would be a 415 violation.

I went back and checked and it was question 75 of the 1998 ASPA Q&A's. Unfortunately I do not have them in electronic format where I could simply paste them here.

Notice 98-52 provides a. In General The matching contribution requirement of this section V.B.1 is satisfied if, under the terms of the plan, safe harbor matching contributions under either the basic matching formula or an enhanced matching formula described below are required to be made on behalf of each NHCE who is an eligible employee. 98-52 makes it clear that the term "eligible emloyee" will be defined the same way as in the 401(k) regs--anyone eligible to defer... Except as provided in this section IV, any term used in this notice that is defined in Notice 98-1 or the regulations under sections 401(k) and 401(m) has the same meaning as in Notice 98-1 or those regulations. For example, the definition of "plan" in section 1.401(k)-1(g)(11) applies for purposes of this notice

In a Q&A session at the ASPA conference--I believe in either 1998 or 1999-- this question was asked and the IRS reps gave the same answer as Archimage.

JMcKean 1) Investment Managers If there is always a duty to monitor, why did DOL include examples 8 and 9 and not just stop at 8? It appears that DOL is stating that where a participant has "total discretion" in selecting an investment manager there is no duty to monitor (Example 9). However, when a fiduciary selects an investment manager and allows the participant to allocate assets to that manager as he or she chooses there is a duty to monitor the manager (Example 8). Again, I was surprised when I went back and looked at example 9 because I had always assumed that the duty to monitor would remain. Also, I thought that the notion of a participant having "total discreiton" over a investment manager was contrary to the statutory constraint that only a named fiduciary could appoint a investment manager. 2) Investment Advice/Investment Advisors-- I believe DOL has specifically contemplated investment advice in the context of 404© and has made the exact same distinction that it made with regard to investment managers. The following is from the advice/education reg a portion of which is cited in my previous post-- (e) Selection and Monitoring of Educators and Advisors. As with any designation of a service provider to a plan, the designation of a person(s) to provide investment educational services or investment advice to plan participants and beneficiaries is an exercise of discretionary authority or control with respect to management of the plan; therefore, persons making the designation must act prudently and solely in the interest of the plan participants and beneficiaries, both in making the designation(s) and in continuing such designation(s). See ERISA sections 3(21)(A)(i) and 404(a), 29 U.S.C. 1002 (21)(A)(i) and 1104(a). In addition, the designation of an investment advisor to serve as a fiduciary may give rise to co-fiduciary liability if the person making and continuing such designation in doing so fails to act prudently and solely in the interest of plan participants and beneficiaries; or knowingly participates in, conceals or fails to make reasonable efforts to correct a known breach by the investment advisor. See ERISA section 405(a), 29 U.S.C. 1105(a). The Department notes, however, that, in the context of an ERISA section 404© plan, neither the designation of a person to provide education nor the designation of a fiduciary to provide investment advice to participants and beneficiaries would, in itself, give rise to fiduciary liability for loss, or with respect to any breach of part 4 of title I of ERISA, that is the direct and necessary result of a participant's or beneficiary's exercise of independent control. 29 CFR 2550.404c-1(d). The Department also notes that a plan sponsor or fiduciary would have no fiduciary responsibility or liability with respect to the actions of a third party selected by a participant or beneficiary to provide education or investment advice where the plan sponsor or fiduciary neither selects nor endorses the educator or advisor, nor otherwise makes arrangements with the educator or advisor to provide such services. I think the only question left is if "the the plan sponsor or fiduciary neither selects nor endorses the educator or advisor, nor otherwise makes arrangements with the educator or advisor to provide services" whether that advisor could be paid from the participant's plan assets. Or, is approving the payment of these expenses making "an arrangement" with the advisor.

Jon, I use a similar structure. I typically provide that the Trustee is the identified fiduciary but the trustee may delegate the task of receiving instructions to the broker or recordkeeper. In the event of such a delegation, the SPD states that participants will be informed in a separate mailing of the identity of the broker(s) or recordkeeper(s) who may receive participant investment instructions. I let clients know that this may or may not work from a 404© standpoint, but it certainly seems reasonable. The problem is that if you consider it a "fiduciary function" then your recordkeeper or broker is not going to want to acknowledge that it is a fiduciary If it is not a fiduciary function, have instructions been given to a "identified fiduciary?" I guess one way to look at it is that accepting and executing investment instructions is a ministerial task rather than a fiduciary task (best execution issues aside). The identified fiduicary has delegated this non-fiduciary ministerial function to its recordkeeper or broker as the identified fiduciary's agent. Therefore, instuctions to the broker/recordkeeper are instructions to the identified fiduciary and the broker/recordkeeper does not have to accept a designation as a fiduciary.

mbozek--I am not sure that it is any different. I would imagine that in any number of instances the "identified fiduciary" issue arises such as when participants change mutual funds via internet access... In such a situation has the "identified fiduciary" been given the instruction? The regulations just have not kept up with the technology and the reality of the way business is done. It would be great to have a "rewrite" of the reg but I am not sure that this is a DOL priority. However, rumor had it that they were going to get out an advisory letter on that thorny prospectus delivery requirement.

It's alive...It's alive... http://hr.cch.com/news/pen-ben/stories/061203a.asp

I guess you could argue about whether receiving the confirmation is the same thing as receiving the original instruction. If you are only receiving confirmations, how would the identified fiduciary know of any trade where the broker received the instruction but for some reason did not make the trade? I think that this is another area that the wording of the regulations need to be examined by DOL. If participants are given the name of the identified fiduciary, the names of the brokers designated by the identified fiduciary and if the identified fiduciary receives confirmation of all trades---I really don't see how DOL (or the Courts) could ask for more. To do so would make brokerage accounts truly infeasible and there is no doubt that the 404© regulations contemplate that brokerage accounts would exist.

Jon, The language of the regulations require: "Under the terms of the plan, the participant or beneficary has a reasonable opportunity to give investment instructions (in writing or otherwise, with an opportunity to obtain wirtten cofirmation of such instructions) to an identified plan fiduciary who is obligated to comply with those instructions... This seems to require more than the identified fiduciary taking reasonable steps to make sure that the broker has the ability to execute trades. The reg states that investment instructions must be "given to" the identified fiduciary. I still don't see how giving instructions to a broker is giving instuctions "to an identified plan fiduciary" unless the identified fiduciary reviews every trade so the fiduciary can actually say that he or she was "given" the instructions.

I think that is one of the major issues with regard to whether directed brokerage accounts can really obtain 404© protection. No broker is going to want to "sign on" as a fiduciary. I think that the best way to get around it is to have the indentified fiduciary name one (or maybe several) brokers that the participants can use. In that way you may be able to argue that the broker is the "agent" of the identified fiduciary and you "identify" both the fiduciary and the broker in your 404© materials. I don't know if this works, but I think it is the best you can do unless you get the broker to acknowledge that he or she is a fiduciary. As an aside, I think limiting participants to one or perhaps two brokers also helps substantially with administration and, assumng a knowledgeable broker, helps make sure there are no prohibited transaction issues or prohibited investments.

jmckean--Thanks for the detailed post. I had always thought that the duty to monitor was as you described until Asire pointed out example 9 to the 404© regulations. It would seem that the DOL comes to a different conclusion where the participant actually "picks" the investment manager. I would assume that this same analysis also applies if the participant, with not input from the plan fiduciary, "picks" the investment advisor. Did the panel discuss example 9 at all? As to the Sun America letter, I always thought that the problem was that Sun America had the potential to receive increased fees, in addiiton to the fees they were receiving for providing investment advice to participants, if the individuals rendering investment advice to partipants actually picked and/or recommended Sun America investments. Therefore you had the potential 406(b) PT problem. Also in Sun America a plan fiduciary would be "selecting" Sun American to perform the advisory services. I guess my questions still are: 1) Can plan fiduciaries allow a participant to pick an investment manager and/or investment advisor and be "off the hook" pursuant to Example 9: 2) If the participant selects an investment advisor do you even have a 406(b) issue since the plan fiduciary has not "done" anything? If you still have an issue do you get around 406(b) problems if the invesment advisor is compensated only from plan assets and does not receive additional compensation based on the investments selected? Wouldn't the plan fiducairy at least have a duty to verify that there is no "double ocmpensation" that could create a PT? Or could the rationale of the Sun America decision get you around this as well. 3) Is anyone aware of any arrangement where the plan fiduciary steps back completely from designating investment advisors, allows participants to choose any advisor, and let's the advisor be paid from the participant's plan account?

Also-- although you have heard these noises before--purportedly there will l be 4 separate pieces of guidance on 412(i) plans out "shortly" (prior to 6/30?) and that a number of entities touting 412(i) plans will not be happy with what they read.

Mbozek--The preamble language implying fid responsibility under ERISA for decisions of a mgr not designated by the plan can be disregarded because it is not part of the regulation I take it, then, that you agree that the language in the preamble seems inconsistent with the language of the 9th example itself. I am glad the 9th example is there but it still seems inconsistent with the notion that only a named fiduicary can select an investment manager. Also you look at the following kind of language in the preamble and it makes you wonder where the 9th example came from: The Department emphasizes, however, that the act of designating investment alternatives…in an ERISA section 404© plan is a fiduciary function to which the limitation on liability provided by section 404© is not applicable. All of the fiduciary provisions of ERISA remain applicable to both the initial designation of investment alternatives and investment managers and the ongoing determination that such alternatives and managers remain suitable and prudent investment alternatives for the plan. Therefore, the particular plan fiduciaries responsible for performing these functions must do so in accordance with ERISA. That being said, it seems clear that the 404© regs bless the individual selection of an investment manager by a participant and it would seem logical that then the fees for that manager could be paid from that participant's account under the Plan. I am still interested in comments by anyone who has experience with investment advisory fees being paid from individual plan accounts to people who are not investment managers--i.e. those that render advice but leave the actual decision/discretion to the plan participant. It would seem like the DOL guidance on investment advice/education contemplates this arrangement but does not deal with paying the investment advisor: The Department notes, however, that, in the context of an ERISA section 404© plan, neither the designation of a person to provide education nor the designation of a fiduciary to provide investment advice to participants and beneficiaries would, in itself, give rise to fiduciary liability for loss, or with respect to any breach of part 4 of title I of ERISA, that is the direct and necessary result of a participant’s or beneficiary’s exercise of independent control. 29 CFR 2550.404c-1(d). The Department also notes that a plan sponsor or fiduciary would have no fiduciary responsibility or liability with respect to the actions of a third party selected by a participant or beneficiary to provide education or investment advice where the plan sponsor or fiduciary neither selects nor endorses the educator or advisor, nor otherwise makes arrangements with the educator or advisor to provide such services. [DOL Reg. §2509.91-1(e)]

MBOZEK-- I don't really disagree...however some employers think 50% is better than nothing. Also, in my situation I was dealing with a bankrupt employer and there were "asset of the estate" issues. Also, to do it your way your probably have to have a plan amendment to allocate forfeitures to expenses (I presume that this is not in the plan already or the question would not have been asked). To fully vest you would need a plan amendment if you come to the determination that you did not have a partial termination when the employees who received the distributions that caused the forfeitures terminated employment.

The one situation that I have seen where a "reversion" is possible is as follows: 1) Forfeitures occur in the year of termination prior to the actual termination of the plan. There is not a partial termination vesting these participants prior to the formal termination of the plan. 2) The plan provides for an allocation of forfietures in the plan year after the plan year in which the forfieture occurs. 3) Along with the termination of the plan, all employees are terminated as well. 4) No allocation of forfeitures are possible in the next plan year because not only has the plan been terminated, but no participant will have any compensation. Thus any allocation of forfeitures according to the plan terms will be a 415 violation. The forfeitures would have to be placed in a 415 supsense account. 5) The "return" of a 415 suspense acccount to the plan sponsor is the one exception to the rule that dc plans cannot have reversions.

mbozek--It seems like example 9 is contrary to the 4th proposition that you stated above. That is what surprised me about example 9 when I went back and read it. In example 8 it is clear that the fiduciary has a duty to monitor the investment manager, but in example 9 the fiduciary seems to be absolved of this duty. Also, even though a participant may be able to "designate" an investment manager it still seems like you would need the actual action taken by the named fiduciary.

Asire I went back and looked at the 404© regulations and saw examples 8 and 9 that you reference. Example 8 did not surprise me at all because the 404© regulations contemplate offering investment alternatives that are actively managed by investment managers. Since an investment manager can only be appointed by the named fiduciary in the plan document-- 402©(3)-- and since the 404© regulations specifically say that participants are not fiduciaries(much less named fiduciaries )--it would appear that it would be impossible for a participant to designate an investment manager. Therefore "offering" the investment manager would be the same as offiering any mutual fund. There would be an ongoing duty to monitor and remove an underperfoming investment manager just like they would any other investment that "underperforms" the benchmarks that are set. This all seems to be set forth in Example 8. What did surprise me was Example 9 which came to the conclusion that a participant can have total discretion over choosing an investment manager and that the named fiduciary would be protected in this case. This seems contrary to 402©(3) which provides that only a named fiduciary can name an investment manager. Oh well you learn something new every time you go back and re-read the regulations. Thanks for the citation. However, I wonder whether the situation raised by Jon and Junior might still work. I know that 401(k) plans retain individuals with regard to picking the "menu" of investments that will be offered under a plan. These individuals are not investment managers but render investment advice and are compensated by the plan. In other situations plans specifcally retain specified individuals who are available to offer partcipants investment advice with regard to their individual accounts. In such a situation these individuals are not investment managers but are paid by plan assets The regulaitons specifically contemplate fiduciaries being advised with regard to investments by persons or entities who are not investment managers. 2590.75-8 Q-FR-15. Of course in such situations the fiduciaries retain the ultimate discretion. The same regulation I just cited confirms that actual discretion regarding plan investments cannot be delegated to individuals who are not investment managers or participatns. Therefore to the extent that a CFP who is not an investment manager wants to "manage" a participant's account I agree he or she could not. I guess the quesiton then becomes whether, short of actual discretionary management, investment advisory services rendered to a participant regarding plan investments COULD be reimbursed from the plan. To the extent that such advisory services could be paid for by the plan as a whole, I am not sure why there would be a distinction regarding whether these expenses are 'allowable" just because the advisor is selected by the participant. You would not seem to lose 404© protection because the participant stil has "control" and he or she is just obtaining advice. Jon--what is your view what is the plan fiduciary's responsibility in such a situation? Is it only to monitor reasonable plan expenses? What kind of plan language is included that allows such expenses to be paid? Also, in your experience how common is this?

Paul, For the 401(a) and 401(m) moneys if the plan provides for distribution at a "stated age" that is sufficient even if you have not satisfied the "seasoned money" requirement (2 years or more) or the five years of participation. Thus, I have had no problems with the IRS approving in-service distributions at age 35 or over as a design feature (admittedly not a design feature I would typically recommend). Arguably even more events than stated age, hardship, seasoned money or five years of participation could be allowed as permissible in-service events under 1.401-1(b)(1)(ii), but I don't think the IRS takes such a broad view. Rul 71-295, 73-553.