Mike Preston

Inherent in the above answer is the concept that the plan document will need to be tweaked.

Standing alone the amendment should be fine. It could be part of a pattern of amendments that are discriminatory if the eligibility was changed next year to exclude NHCE's of a similar age. I wouldn't worry about it.

I agree with Bird and disagree with Luke.

The client's attorney has some explaining to do.

Agreed that the above is most useful to avoid prolonged inactivity on the part of whoever is taking over the duties of the Company.

True dat.

There are sometimes valid reasons why a contingent trustee is preferred. One example: trust has non-qualified assets requiring a bond in excess of $500,000. In such case the bonding company has been known to request financial statements of each appointed Trustee. There are no doubt others. So, while somebody might be willing to accept appointment as Trustee to wrap things up, they might not be willing to sign on as a non-contingent Trustee. The advice we were given is that there is no need for the Trust document to have a provision specifically authorizing a contingent trustee. Here is what we have used for a long time: ACTION BY THE BOARD OF ABC INC. ("Employer") BY WRITTEN CONSENT The undersigned, being the sole Director of the above corporation, and acting pursuant to the provisions of the By-Laws of the corporation, does hereby consent to and approve the following resolution(s): WHEREAS, the Employer adopted, and has had in effect the ABC Inc. Profit Sharing Trust (the "Trust") which was initially established in conjunction with the ABC Inc. Profit Sharing Plan; effective the same date; and, WHEREAS, [Name of first Trustee] and [Name of second Trustee] have been appointed as Trustees of the Trust effective January 1, 20yy; and WHEREAS, The Employer has determined it is in the best interests of the Employer and the Trust's beneficiaries to designate a Contingent Successor Trustee in the event of the incapacity or death of both of the Trustees named above; NOW, THEREFORE, BE IT RESOLVED: That the following individual is hereby named as the Trust's Contingent Successor Trustee: Linda E. Johndoe RESOLVED, FURTHER: That the Contingent Successor Trustee shall not serve as Trustee of the Trust unless both [Name of first Trustee] and [Name of second Trustee] are no longer serving as Trustees because of (a) death, (b) physical and/or mental incapacity as certified by two (2) physicians, or (c) a combination of (a) and (b). RESOLVED, FURTHER: That the Contingent Successor Trustee named above shall only serve as Contingent Successor Trustee of the Trust if she accepts, in writing, the appointment as Contingent Successor Trustee, with said acceptance being valid whether it pre-dates the contingencies identified or not. IN WITNESS WHEREOF, the undersigned has executed this written consent on the _____ of February, 20xx. __________________________________ [Director] ============================================= CONTINGENT SUCCESSOR TRUSTEE ACCEPTANCE ABC INC. PROFIT SHARING TRUST I, Linda E. Johndoe, hereby accept the position of Contingent Successor Trustee of the ABC Inc. Profit Sharing Trust. Upon notification that both [Name of first existing Trustee] and [Name of second existing Trustee] are no longer serving as Trustees because of (a) death, (b) physical and/or mental incapacity as certified by two (2) physicians, or (c) a combination of (a) and (b).

Certainly the change from 70 and 1/2 to 72 should be noted.

And make sure that he has new accruals that support his $100,000 CRD *OR* you take steps to migrate the existing election to a new one. There are some serious restrictions to the latter. I forget which IRS Notice covers the permissable migrations but I know if you find it then Q&A 14 should be digested.

From what you're saying, you still don't get it. Maybe somebody else will explain it to you.

I'm from Missouri on this one. If the defined-benefit rmd wasn't properly calculated, the rollover is tainted. You can do what you want with the DC rmd at that point. If the defined benefit rmd is correct then your analysis is of course correct.

What do assets have to do with a DB rmd?

Repeat... Oy vey

Oy vey

Something seems backwards.

Do you pass 410(b)?

The SEP is a red herring because it is not aggregated with anything. So, re-ask your question with only the 401k in the picture.

You could so argue. Don't think you would prevail, though.

Seems like there is a moment or two where the plan's assets are in a bank account over which you, as a service provider, have complete control. I can see the argument if the funds are no longer plan assets (as they would be if they were tax withholding). In fact we use a similar construct to facilitate the payment of tax withholding - both state and federal. But I take the position that those funds belong to the taxing authority and not the plan so they aren't plan assets.

Doesn't this create a fiduciary issue?

I'd read the document very carefully. It sounds to me like the amount being restored may be more than what the document calls for.

The effective date should be the date of the spinoff, not 12/31/2020 unless that is the date of the spinoff he wrote redundantly. :-)

AndyH, are you commenting on what the OP said to put aside for now? :-) If you are, I don't think that Jim had the 5 year safe harbor regarding past service in mind as a "test" which excludes the owner if compensation is zero but hours worked is substantiated.

No wiggle room. No amendment, can't treat it as optional withholding. Or, what he said.

Doesn't this mean that if an employer so chooses, the plan must be amended at some point?