Dougsbpc

We administer a 30 participant DB that had recent investment losses. The corporation that sponsors the plan is 100% owned by a family trust. The four beneficiaries (the kids) each have a 25% interest. I believe each are then deemed to own 25% of the corporation. Only one of the siblings (James) is a participant in the plan, and he is age 68. He is entitled to about 60% of the benefits. The business will be sold at the end of next year and it is unlikely the plan will have sufficient assets to pay benefits. If he were a greater than 50% owner he would have no problem waiving a portion of his benefit. Given the fact that the trust owns the corporation, that will not be possible. Could James (with spousal consent) execute a suspension of benefits notice to stop receiving an actuarial adjustment in the meanwhile and thereby stop the bleeding? He has never been in pay status.

We inherited a DB plan with Life Insurance. This plan is sponsored by a small corporation with 10 participants. The Death Benefit under the plan is the greater of Insurance proceeds less cash value or the present value of accrued benefits. The document indicates the face amount of policies shall be 100 times the anticipated monthly benefit. With an on-going plan the face amount for each participant is their projected monthly benefit X 100. Does anything change if the plan is frozen? In this case there were 2 new entrants in 2008 who accrued benefits. The plan was then frozen 1/1/2009. Must policies be based on their projected benefits even though the plan is frozen? The goal here is to make sure all participants have the proper amount of insurance. Speaking of the proper amount of insurance, the 100% owner of the corp (and only key employee) only has insurance of about 50 times his monthly benefit. Could he waive (in writing) the remaining amount that the plan would ordinarily purchase for him?

Does the top heavy benefit continue to increase in a frozen plan if participant salaries continue to increase after benefits are frozen?

Is there a certain format that must be used for a plan sponsor to elect use a COB or PFB to reduce the minimum contribution? If so, does anyone know where I can find a sample?

Have a small DB plan where the 2008 and 2009 AFTAP is <80%. A terminated participant has a lump sum benefit of $1,400. Even though restricted, I believe lump sum benefits of under $5,000 can be distributed under WRERA. Question: Must it be an involuntary cash out to qualify for this? Can lump sums of < $5,000 be made to any terminated participant?

Thanks for the reply Andy. I was thinking that benefits were not distributed within one year of the termination date. Generally this means that the termination did not take place and you had an active plan. However, now that I think about it, his divorce, division of property (including the plan) prevented benefits from being distributed in 2008. So perhaps you are right, PPA 436 would not apply.

We administer a small DB plan that terminated 12/31/2007. However, the client failed to provide us with necessary information to complete the termination in 2008. He was divorced and had medical problems. This also lead to no AFTAP as of 10/1/2008. The plan has only existed for 4 years. We sent the client the notice of benefit restrictions to provide to the 4 participants including his former wife. The plan would have had a 2008 AFTAP of 98%. However now the plan has lost about 45% and any 2009 AFTAP will surely be less than 80%. We received a QDRO ordering the plan to distribute benefits to the Alternate Payee as a lump sum. They cannot do this due to the AFTAP < 80%. Has anyone run into this problem yet?

Thanks Mike

Is it possible to bring in ineligibles to pass 401(a)(4)? Have a cross-tested 401(k) plan where they have provided nonelective contributions of 10% of salary to employees and whatever it takes to get the owner to the 415 max. They want to do the same this year but fail 401(a)(4). Would it be possible to bring in ineligibles who worked more than 1,000 hours during the plan year and give them a 10% allocation with an 11g amendment? In this case they would have 5 ineligibles, but 2 of those ineligibles worked more than 1,000 hours in 2008. If it can be done, it is those two who would allow the plan to pass 401(a)(4).

Thanks for the replies David. I guess my question is would a 1 participant DB plan be considered non-compliant (and disqualified) if it terminated December 31, 2008 without formally adopting any language to comply with WRERA? I think WRERA was signed into law in late December.

What it really comes down to is that we administer a 1 participant DB that terminated 12/31/2008. We usually get a DL on termination but in this case the plan sponsor does not want to get a DL. Usually we would insist on it but this has been a very straight forward plan that has been properly amended all along. It seems that WRERA only provides relief. Would a plan be considered non-compliant by not adopting a WRERA amendment when in operation it never employed any of that relief? What about a plan that terminated earlier in 2008?

Does anyone know if a small DB plan that terminated December 31, 2008 needs to be amended for WRERA?

Does a small calendar year DB plan need to adopt a WRERA amendment if it terminated 12/31/2008? I think WRERA only provided relief.

Thanks Sieve I would think the 415 compensation matter is a not an issue in a safe harbor only 401(k) plan. Even if you had a short year of 4 months it would be $245,000 x 4/12 = $81,666. maximum salary deferrals and 3% of annual compensation would be far less than $81,666.

A calendar year company wants to adopt a new Safe Harbor 401(k) plan for the 2009 year. The notice will be considered timely if provided when participants become eligible. The plan document will be signed shortly, Safe Harbor Notices will be given and salary deferral elections will be made all effective March 1, 2009. Does this preclude the plan from being effective 1/1/2009? In other words does a retroactive effective date automatically mean that the safe harbor notice was not timely? If we do need to make salary deferrals effective 3/1/2009, are we required to pro-rate the 402(g) limit? Thanks.

Have a small DB plan with a minimum contribution of $41K and a prior year carry-over balance of $61k. I think the employer can elect to reduce the minimum required contribution by the carryover balance. I think the plan must be more than 80% funded for the prior year after subtracting any pre-funded balance. However, just the pre-funded balance and not the carry-over balance must be subtracted. Correct?

Thanks David What if the excess were large? As a simple, extreme, fictitious example, suppose you had a 1 participant DB that had existed for 10 years. Assume the participant is not close to his 415 limit. The plan is terminated and benefits frozen 3/1/2008. Assets = $800,000, benefits = $780,000. With PPA funding, the maximum contribution for 2008 could be $350,000 (I don't believe this is pro-rated like before). Could they contribute $350,000 and potentially allocate excess of $370,000 assuming he is not close to his 415 limit?

When terminating a DB plan we have been terminating the plan and freezing benefits. The idea being that if the plan termination somehow did not happen, benefits would not continue to accrue. Although we have not found anything on this, we heard that excess assets cannot be allocated to participants once benefits have been frozen. Is this the case?

I don't believe the recent technical corrections bill allows for a one participant DB to forgo accrued benefits on termination to avoid lump sum restrictions. Suppose the 2009 AFTAP is 77% as of 1/1/2009. Could they subsequently fund an extra amount to get them over 80% and have the restrictions lifted for the 2009 year?

I agree with Andy. Where is the relief on the restriction for paying lump sum distributions for a plan that happens to fall below 80%? In a small non-covered plan, why couldn't a majority owner forgo a portion of his/her accrued benefits on plan termination to allow non-restricted benefit payments?

Thanks for your insight.

Suppose an employer with 40 employees leases 3 employees from an agency who are considered temporary. All 3 work for four months and then the employer hires them on as full time employees of its own company. The employer has a 401(k) plan that requires one year of service to be eligible. Must they count all hours from when they were leased employees? I would think that hours as a leased employee are not counted until the employee works on a substantially full-time basis (1,500 hours). Then all hours would count. Anyone know the answer to this?

I dont believe we have done any plan terminations for PBGC covered plans yet. We are familiar with the process (notices, timing etc), but don't completely understand ERISA 4044. ERISA 4044 deals with the allocation of assets upon plan termination. "Allocation priorities" seems to mean you do not have sufficient assets to pay all liabilities and therefore you allocate scarce assets based on certain priorities. We understand this for a non-covered plan, but a covered plan only has two options: 1 Standard termination - in this case assets must be sufficient to pay benefits and then why would you need allocation priorities? 2 Distress termination - in this case the PBGC takes over the plan and pays benefits up to the guaranteed level. Any enlightenment would be greatly appreciated.

Blinky, As of 1/1/2008, the plan's actuarial value of assets = $1,444,000. The target liability on that date is $1,655,000, which gives us an AFTAP of 87.2%. However, it was not certified by 4/1/2008, so it drops by 10% as long as it is certified by 10/1/2008, which it was. So the AFTAP would be 77.2% for the 2008 year. Since this is less than 80%, we would be restricted on lump sum payments. The single participant owner would like to terminate the plan 12/31/2008. They had a good year, so they funded more than the minimum for 2008. So as of now, the plan is very well funded. My question is, are we stuck with the lump sum restriction if the plan terminated 12/31/2008? In other words are we forced to terminate say January 2009 so we can get an AFTAP cert that will be > 80% thereby lifting the lump sum restriction?

Suppose you have a calendar year 1 participant DB. They were not able to provide investment information until after 4/1/08. The AFTAP was certified 9/15/08 at 87%, so actually 77%. Since then, they have made a contribution that will put them over 100%. Can they terminate the plan 12/31/2008 without benefit restrictions or must we wait until 2009 to terminate and have a new AFTAP done? Thanks much.