Dougsbpc

A small defined benefit plan (husband and wife only) terminated effective 12/31/2007. They signed the termination amendment November 1, 2007 and immediately rolled over all assets ($810,000) to one IRA (i.e he forgot his wife who is due $150,000). The owner and trustee never bothered to contact us. As long as everyone involved is agreeable, this should be relatively easy to fix. We would have them transfer back the original amount from the IRA back to the plan, prepare proper benefit elections and have them make the distributions. Does anyone see a problem with this? Does this require VCP? Perhaps it would as the IRA custodian would prepare a 1099-R for any amount transferred back to the plan.

Suppose you have a top heavy DB and 401(k) plan that are general tested (15 participants in each plan). Also, suppose one participant was full time but dropped to part time (under 1,000 hrs). The Top heavy minimum is provided in the 401(k) plan. Since he is employed on the last day of the year he gets the 5% top heavy minimum. Does he then get bumped up to the 7.5% gateway because of the DB/DC plans? Assume HCEs have high enough allocation rates such that 7.5% is required. He would not otherwise be entitled to a benefit accrual or top heavy minimum in the DB (if the TH minimum were provided there) because he works less than 1,000 hrs. Now suppose he only ever became eligible for the salary deferral part of the 401(k) plan but was never eligible for non-elective, match or entry to the DB plan. Would he receive a 5% TH minimum in the 401(k) plan or a 3% TH minimum.

Thanks a million masteff and J Simmons!

Does anyone know why the spouse of a married participant is automatically the primary beneficiary of 100% of the participants benefit under a plan not subject to QJSA? I assume this is because the normal form of benefit is a lump sum.

Mike, Thanks for your insight. Do you recall if Jim gave a reason? 1.401(a)(4)-5(a)(2) talks about the factors the IRS considers in determining whether the amendment / allocation discriminates in favor of HCE's. They look at "the relative accrued benefits of current and former HCE's and NHCE's before and after the plan amendment and any additional benefits provided to CURRENT and former HCE's and NHCE's under OTHER plans".

Thanks Andy There will not be any former employee receiving an allocation, but I would think that if the allocation is not based on salary it should not matter. A participants compensation base for a4 purposes would be his/her average salary. In this case, the employer would want to include the DC plan in the test if possible. The employer always makes a generous DC contribution and the employees appreciate and understand the DC plan more.

Suppose a small defined benefit plan terminates with excess assets. Also, the same employer maintains a defined contribution plan. Each year the plans are general tested and have had no problems passing 401(a)(4). Our understanding is that excess assets in the DB plan could be allocated in any manner the document allows as long as that allocation is non-discriminatory and passes 401(a)(4). If the DB plan terminates now (prior to any benefit accruals for the year) and ends up allocating excess assets during the year, are those allocations general tested along with DC plan allocations made for the year? Thanks much.

Thanks JSimmons. In this case an amendment was done that was word for word with the prototype language. The benefit formula was simply amended from 3.75% of pay to 4.00% of pay.

Does a plan with a prototype document automatically become an individual design when administerd by anyone other than the prototype sponsor? Can amendments be done to prototypes? Thanks.

A one employee corporation has a 2/1/07-1/31/08 fiscal year. The corporation sponsors a DB with a 10/1/07-9/30/08 plan year. The deduction is taken for the plan year that begins in the corporation fiscal year. Is there anything wrong with using salary from the 2/1/06-1/31/07 fiscal year for the plan year 10/1/07-9/30/08? This way, the valuation could be done in October for the upcomming year rather than having to wait until the end of January for the salary.

Thanks Tom. The employer funded about 3% of comp in December 2007. Since this is past 30 days after the taxable deadline for 2006, this amount would be an annual addition for 2007. However, that is not a 415 problem for the NHCE. The real question has to do with whether the QNEC could be used. Our understanding is that the QNEC must be allocated for the prior plan year, even though it can be contributed up to one year later. So the 2% QNEC would have to be allocated as of 12/31/2006 even though it is contributed in December 2007. That is fine for an on-going plan, but this plan did not exist as 12/31/06.

A 401(k) plan is first effective in 2007 (calendar year plan) and uses the prior year testing method. This is a sole proprietor so the proprietor has not yet made his salary deferrals for 2007. There is one HCE and one NHCE eligible in 2007. The HCE makes maximum salary deferrals and the NHCE makes no salary deferrals. We are allowed to use 5% as the maximum HCE deferral rate for 2007 under the prior year testing method for the first year. It appears QNECs can be made using the prior year method as long as they are contributed within one year of the applicable year. The applicable year would be 2006 even though the plan did not exist in 2006. The employer did make an employer contribution more than 2% prior to 12/31/2007. Question: can a 2% QNEC be allocated to the NHCE for 2007 therby allowing the HCE to defer 7%? Thanks much

Interesting. It sure makes sense that you should be able to resume the plan as long as no benefits have been distributed and participants are made 100% vested.

Thanks for the replies. The plan terminated in preparation of the sale of the company. At the last minute the deal fell through so the company is stuck with a terminated 401(k) plan. All participants are still employed. The employer wishes they hadnt terminated the plan but it is too late now. The plan allows for harship withdrawals provided at least one of the conditions are met. It is safe harbor so this participant must obtain a participant loan first. Certainly a terminated plan can condition the distribution of all benefits to receiving a favorable determination letter. We have permitted very small plans to distribute all benefits before receiving a DL but think it may be a bad idea for larger plans. Consider a 50 participant 401(k) plan. Although it is very unlikely, think about how difficult it would be moving distributed benefits back to the plan in the event the IRS would allow retroactive correction of some plan defect it may have uncovered. Or if the plan were disqualified participants who rolled over benefits would be assessed a 6% penalty. Again, this is unlikely but is a reason to condition the distribution of benefits to receiving a FDL. However, this would not apply to a harship distribution and perhaps the participant could be given the hardship distribution even though the plan is terminated.

We administer a 401(k) plan that terminated three months ago and will be submitted to the IRS next month for a DL. A participant called and needed a hardship distribution. Generally, when a plan is terminated and waiting for a DL, we have not been allowing any benefit distributions until all benefits are paid at one time after receiving the favorable determination letter. Has anyone ever considered allowing a hardship withdrawal after a plan has terminated prior to receiving a determination letter? Thanks.

I am impressed! The PBGC got back to me within a day. It is as J4FKBC mentioned. The owner must be a majority owner at the time the elction is executed and not necessarily when benefits are later distributed.

Thanks Mike I will contact the PBGC and post their response, which may be helpful to anyone else who may run into this.

We administer a small PBGC covered DB plan that will have benefit liabilities that exceed assets. The current 100% shareholder of the plan sponsor will waive a portion of her benefits so the plan can terminate as a standard termination. Of course it may take a year before we get a DL from IRS and benefits are distributed. The 100% shareholder had a deal with one of the employees that she would sell her stock to him by July 31, 2008. I believe she must be the 100% shareholder at the time benefits are distributed NOT just at the time the amendment to waive benefits is executed. Does anyone disagree with this? Thanks much.

We administer a 401(k) plan that excludes certain HCE's from participation. The plan has S/R and P/S only. We just received the 2007 data and found one of the excluded HCE's made salary deferrals. Our document indicates that salary deferrals and earnings be distributed to the ineligible participant. I have read all the discussions about this. Rev Proc 2006-27 provides correction by amendment and DL. However, it appears to only permit this if the employee has not met age/service requirements or met age/service and entered before the entry date. It does not appear to apply to an excluded class, particularly if that excluded class is comprised of HCEs. In fact, it starts out by saying "The operational failure of including an otherwise eligible employee in the plan who doesnt meet age/service or enters early" This seems to not apply to excluded employees as they are not otherwise eligible. Given this we are inclined to follow the terms of the document and distribute the salary deferrals and earnings. Should these salary deferrals be included in the ADP test?

Andy(s) Thanks for the replies. We are aware of the J&S automatic form of benefit payment. Regarding vesting, my understanding was that vesting needs to be identical in both plans. Perhaps my understanding is incorrect. In any event, if 3.5% was 100% vested as a requirement of being SH and the DB had a 6 year schedule you would be offsetting DB benefits by a DC balance with a greater rate of vesting than the DB benefit is subject to. When it comes to floor-offset plans we are trying to be as plain vanilla as possible (J & S in both plans, same eligibility, same vesting, same NRA and uniform allocations to all in the DC plan). I know identical J & S, NRA, and uniform allocations in the DC plan are a must. Not completely sure about vesting and eligibility.

Suppose a company sponsors a DB plan and a safe harbor 401(k). They have and always will make safe harbor nonelective contributions in the 401(k). Suppose they want to make the DB plan a floor offset plan. Could they use the SHNE contributions for the offset? In reality it would be 3% SHNE contributions and a 4.5% profit sharing contribution. If this is possible, would both plans need to provide 100% vesting immediately?

It seems our liability insurance (E & O) premiums keep on increasing. We are lucky we have never had any claims in 16 years. Has any plan administrator ever submitted a claim on their E & O insurance? I know much depends on the amount, size of the firm etc., but what happens to the premium? I am guessing a small plan administrator (250 plans) would get one shot. In other words a $6,000 premium may go to $35,000 if any substantial claim is ever made. That is if anyone would ever even insure you after a claim. Just curious as we pay our premium for next year.

The new 415 regulations require us to limit a benefit to the lesser of the 415 dollar limit (as adjusted for RA > 65 and <62) or the 401(a)(17) comp limit. Does the 401(a)(17) limit for 415 purposes apply even if the participants 3 year average is less than the 401(a)(17) limit? For example Participant age 68 20 yrs service 7 yrs of participation $14,500 average comp 401(a)(17) average comp limit $18,194 mo. Is it $18,194 x 7/10 = $12,736 Thanks much

Mwyatt, We went through this before. Our actuary had us do the following: Assumed monthly benefit as of pior plan distribution: $3,000 Date of prior plan distribution: 12/31/2001 Start of new plan: 01/01/2004 NRD in new plan: 12/31/2008 $3,000 X 2001 APR / 2008 APR X 1.06^7 = $5,494 Then $15,000 - $5,494 = $9,506 is maximum benefit in new plan. In our case, to be conservative we used a benefit formula that produced an $8,500 monthly benefit.

We have not done very many RMD's for DB participants. The last one may have been back before 2003 when it was treated as in individual account plan. Question: If the participant reaches age 70 1/2 and his souse is the sole beneficiary, can the RMD be based on a 100% J & S even if the normal form of benefit under the plan is a life annuity? Alternate Forms of benefit payments include single sum, annuity (variable or fixed) over the life or joint lives of the participant and beneficiary, or installments. The QJSA is 50%. Thanks much.