Tom Poje

c'mon. the form says its not due until 1/17/2012. I think that sums up everything. well, they do say so if you don't check an extension box, what date are they going to say you were late? 10/15 of 2010 if your 2009 form 5500 was on extension? but the SSA forms weren't even available then. From the date they were released? But I have 60 or so that I have to submit. So you don't think you'd get relief from that? But then software wasn't even avaialble. so again, what date exactly would you be late? but if that is not enough, even under the Q and As it says No. Ordinarily, the rules applicable to the extension of time for filing Form 8955-SSA are the same as those applicable to the extension of time for filing Schedule SSA (Form 5500). Thus, Form 5558, Application for Extension of Time To File Certain Employee Plan Returns, may generally be used to file for a one-time extension of time of up to 2 1/2 months after the normal due date. However, because of the special extended filing date for the 2009 and 2010 Form 8955-SSA, this automatic extension is not available for filings due on January 17, 2012. A Form 5558 may be filed, however, if the plan year (with or without extension) ends after January 17, 2012.

haven't hit the magic button yet to send the SSAs, but will probbaly do so soon. Of course I have until January... not sure how other software works, FT William you have to actually print the 5500 first before it will be sent to the DOL. the idea being the client will then have it in their hands and sign it and put it in their records. am I going to any clients office to make sure they actually sign the thing? I think the same will be with the SSA. I'll send it to them, recomend they sign and keep with the 5500 but after that...

ah, you hadn't indicated which safe harbor was used. so this gets into some strange things: fact: safe harbor contributions are considered to be QNECs and QMACs Notice 98-1 said the following: Thus, in determining the ADP for NHCEs for the prior year, the following contributions made for the prior testing year are disregarded: QNCs used to satisfy either the ADP or ACP test under the current year testing method for the prior testing year, elective contributions taken into account for purposes of the ACP test, and all QMACs. Similarly, in determining the ACP for NHCEs for the prior year, the following contributions made for the prior testing year are disregarded: QNCs used to satisfy either the ADP or ACP test under the current year testing method for the prior testing year, QMACs taken into account for purposes of the ADP test, and all elective contributions. when the final regs came out it says 1.401(k)-2(a)(6)(vi) Contributions only used once. Qualified nonelective contributions and qualified matching contributions cannot be taken into account under this paragraph (a)(6) to the extent such contributions are taken into account for purposes of satisfying any other ADP test, any ACP test, or the requirements of Sec. 1.401(k)-3, 1.401(m)-3 or 1.401(k)-4. Thus, for example, matching contributions that are made pursuant to Sec. 1.401(k)-3© cannot be taken into account under the ADP test. Similarly, if a plan switches from the current year testing method to the prior year testing method pursuant to Sec. 1.401(k)-2©, qualified nonelective contributions that are taken into account under the current year testing method for a year may not be taken into account under the prior year testing method for the next year. Now, I take that for what it says. the title of the paragraph says you can only use them once. the next sentence says You can't use them to the extent they were taken into account to satisfy any other test, including 1.401(k)-3 which is safe harbor. I think the ERISA Outline Book looks at the example that follows in the rest of the paragraph and applies it broadly. thus since the example says when a plan switches QNECs that were used in the current year can not be used when testing under prior. but because it doesn't mention QMACs in the example it is viewed as meaning you are permitted to do so. I'm guessing that is the logic. I don't disagree often with the ERISA Outline Book, but in the case I do.

well 1.401(k)-2©(1)(i) last sentence says "...a plan that uses the safe harbor method....is treated as using the current year testing method..." [this it appears to be anticiapted a safe harbor may go non safe harbor] (ii)(A) says you can switch if the plan is not a result of aggregation (unknown from your description) AND the current year testing method was used under the plan for the preceding 5 years (True based on your comments) therefore it appears you could switch. you can't use any safe harbor contributions from the prior year (because that would be double counting) if the situation was the same except the plan was not safe harbor, you would do the same thing. run last year's test to find out the NHCE average.

the cite you quote from 3(f) refers to the 'maybe safe harbor' rule, which says 30 days before the plan year begins you indicate the plan 'might' be a 3% SHNEC. and then, if it is decided it will be safe harbor, you amend the plan 30 days before the end of the plan year. (Otherwise how could it be a safe harbor since you have no language in the current document?) of course you could never do that with a safe harbor match, because that is directly related to how much one defers, and it's too late after the fact. but this is different than 'amending' the plan during the year (e.g. to change vesting or change eligibility, etc)

this sounds like a misunderstanding of the whole concept of the form SSA. you report someone as an "A" (Active) when the person turns 65, the SSA 'generates' a letter to the individual telling him they 'may' have a benefit. If the person has been paid out (or in the case of a DB might already be receiving an annuity) you report the person as a "D" (Delete). That way the SSA department takes them off the list so no letter is generated. It would serve little purpose to report them with a soc sec number of 000-00-0000, as they can't take the person off the list, unless you have a hope that they can track down the name with the plan and an old filing. remember, this is the same dept that took this long to come up with a form. If filing electronically the system probably wouldn't take it. If filed on paper, I'm not quite sure what the process is. if it is eventually hand entered, then its just going to generate a letter to someone. so I guess 20 years from now when the person turns 65, the system will generate a letter saying they may have a benefit. They will try to contact a company that went bankrupt 20 years ago. I suppose if the IRA is under the soc sec number it might be found (but then you should have it also). if the IRA is under their name with the company name attached maybe they will get lucky and it will be found. of course, all that is my thoughts only. good luck!

the absolutely most important item is "What does the document say" there are lots of possibilities under the regs which are permissable, but not all documents permit them.

what other situations would this 401(a)(26) reg cite apply? for example the nondiscrim regs say you can group accrual rates within a 5% range. So I've seen people put the HCE at the 'hi' end and bring all the NHCEs they can up to the midpoint. but that is in clear vioaltion of the further regs which says your grouping can't significantly favor the HCEs. so then why even have a 5% range if you can't use it? one way it was explianed to me is that you put the HCE at th midpoint. by grouping the rates you bring some NHCEs down to the midpoint and you bring some NHCEs up to the midpoint. ultimately a fact and circumstances situation. this sounds somewhat similar to me. the 401(a)(26) reg is in there for purpose. again, if not for a case like this, then in what situation does it pertain to? (the babblings of a non-DB idiot)

what does the document say? here is sample language from one document For years beginning after 2005, distribution of Excess Elective Deferrals for a year shall be made first from the Participant's Pre-tax Elective Account to the extent Pre-tax Elective Deferrals were made for the year, unless the Participant specifies otherwise. that is quite clear, unless the participant specifies it would not be Roth.

as to the fun stuff, the instructions clearly say under when not to report a participant a participant is not required to be reported "If before the date the Form-SSA is required to be filed (inlcuding any extension of time for filing) the participant 1. is paid some or all of the deferred vested benefit so someone who quit in 2008 and was paid out in 2011 wouldn't have to be reported as an A on the 2009 form and then as a D on the unavailable 2011 form which may take forever.

since they say you can use the 2009 form I would just go ahead and use that, with the correct dates. we plan on filing electronically through the batch at FT William, so I don't know if that makes difference how things are read by the IRS.

so someone who makes 2000 each week has been getting 5% each week. now at the end of the year he made 104,000 which is above the integration level. but since its done on a weekly basis, with no true up he never hits the integration level??????????? or one person has been making 1000/week. would get 5% up to this point and then 2%. so 1/2 year 26,000 * 5% + 26,000 * 2% = 1820 or for the year an avg of 1820/52000 = 3.5% someone else was making 1000/week but received a raise to 1500. 5% * 26000 + 2% * 39000 = 2080 2080 / 65000 = 3.2% do you see a possible discrimination issue arising? lets take it one step further. owner takes a paycheck of 200,000 the first week at 5%. now the contribution is reduced to 2% the rest of the year. I don't care what he takes the rest of the year. It sounds like you have a possible discrimination issue.

If plan says exclude comp while not a participant then I think you have no choice. Exclude comp from date of marriage. I guess if the document says any definition of comp that satisfies 414s I guess you can use total comp, but you have to treat all ees the same. so if you have people who enter mid year, you'd have to count total comp as well.

the accudraft language is as follows: The participation of a Participant who is no longer an Eligible Employee with respect to a particular type of contribution (or component) will be suspended and such Participant will be entitled to an allocation of that type of contribution (and any applicable Forfeitures) for the Allocation Period only to the extent of any applicable Hours of Service completed while an Eligible Employee for that type of contribution (or component). so I don't see any pronlems with deferrals made before the person married. before that date they were not ineligble. but once highly, you are highly for the whole year for testing purposes. but, now, what do you use for testing comp? I don't think you can us comp once they becaome ineligible. (e.g. if person switched from non union to union, you would only use comp through the date of the switch)

well according to an ASPPA presentation at the Mid Atlantic the following choices are available: (I did not attend, only have a copy of the notes. since the distribution to the employee was in italics, I assume this is something new, and will be part of the new EPCRS, whenever that will be released, but I am only guessing- but i do seem to recall the IRS saying you could distribute the deferrals) Correction methods under EPCRS: 1.Amend plan retroactively to permit employee to enter. Make the employee whole either by: 1.Forfeit deferrals and earnings to plan and make employee whole outside the plan. 2.Distribution of deferrals to ineligible employee. Distribution of Deferrals of Ineligible Employeeon GUST document Return of deferrals and earnings. [Tom says this includes earnings, despitet he fact it seems like a windfall. must be because if the plan lost $ then how would you handle?] Taxed in year returned to employee. Issue Form 1099-R with a Code 8. [Tom looked it up and thats the code for excess deferral, so I guess no 10% penalty] ADP test would need to be redone if the ineligible amount was included in it. Any associated match would be forfeited.

I'm not talking about filing extensions, but rather the 8955 form itself. Because I can file everything at once electronically I don't fathom much of a need for needing to file an extension for that form. Of course, there are always possible exceptions that arise, but I'm certainly not fretting over it.

well, according to FT William if you file electronically you don't need a signature on the SSA. [not the 5558] and if you file in batch through them you don't need a separate PIN or whatever. since I know what I need to put on the SSA (well maybe all but a couple, but I will know by filing deadline for the SSA) I won't need to put anything on extension

Austin - that's the least of my concerns since we are going to go ahead and file electronically. Already created the forms on FT William, and have created an inital batch. I'm going over my plan list one last time just to make sure I've them all. I have a crystal report that will pull a list of all plans on the system so I've something to compare things. while the project has taken a little time, it has actually flowed fairly smoothly. As for entering the persons name exactly, well, I've put down what I have. Can you imagine putting down someone as Jane Doe, then 2 years later she marries so you have to update the records then she divorces 3 years later so you need to update the records for the name change?

ha ha ha. you should of posted this one under humor. I suppose if its based on years of service you could write a crystal report to set years of svc = match %, multiply by deferral then run te report to excel and import into the match feild.

So the plan terminated 4/30/2011. That was the pay out date. so the SSA is due 7 months later, or 11/30/2011. which is before the due date for the 2009 and 2010 SSA filings! Go and figure! and there is no 2011 form, much less even a 2010 form. And I'm not crossing my fingers on an early release date of that form. but I'm still suppose to report the prior terminated people as "D" on a 'timely' basis. Gotta love it! Maybe I need to print it on glow in the dark paper just so it won't get 'lost'.

well, the instructions (page 3 PENALTIES) say the penalty is $1/particpant/day multiplied by the number of days the failure continues (max $5,000) the penalty is imposed on the person failing to file unless it is shown the failure is due to reasonable cause. so, do you plead before the IRS or do you simply file now and hope for the best...

no one knows for sure why certain things are ever eliminated from the preamble. the same thing happened when the final 401k regs were released. I forget what it was, but what was eliminated is still part of the 401k rules, so sometimes (or at least someone told me) is 'space saver'. in all cases I have ever heard of, the limiting of deferrals was always to the HCES, and usually the IRS doesn't have a problem with that - why is it not a problem to say HCEs can't defer at all, but to then turn around and say. ok, you can't limit deferral to $1 plus you get catch ups. Of course we will never know until the IRS comes out and makes a statement one way or another. but as you pointed out, where do you draw the line. $100? $1000?. again in every case I have heard of, this strategy was used to limit HCEs not NHCEs. but we do know that currently the regs simply say a catch up is anything above a plan imposed limit (and there is nothing in the regs to indicate what the plan limit could be)

so its going to be "when worlds collide" the current regs require an adjustment to the limits based on the CPI-U index. the last 2 months were values of 225.964 and 225.722 if the average is 226.700 for July - Aug -Sept. that not a great jump - another increase in gas prices would do that. if so, the 415 limit would jump to 51,000 next year. you have to love the way Congress will gripe people aren't saving enough for reitrement. If they cut back on things, e.g. limit the HCE to say 9% of comp, then all those plans participants are receiving 5% will drop to 3%, so people will have even less for retirement. guess the govt will spend even more money in the future bailing people out. what else is new.

yes. since the 5330 relates to taxes you must have a PTIN to file (unlike the 5500 which is an information form) If I remember correctly an actuary could also file, but my memory might be thinking of something else in regards to that.

I'm overrated again, I'm probably better at song writing ... I'd agree, 6 years after the fact might be pushing things, depends on whether the whole thing is 'insignificant' vs 'significant'. it would seem to me an ADP failure involves all participants, but no single factor is determinative. I'd say the amount involved could be a big factor. under EPCRS Appendix A .03 provide QNEC (no otherwise excludeable rule is not allowed). I guess if the HCE avg was 7% and you assume 3% for the NHCEs (first year rule) then I guess you would have to kick the NHCEs up to 5% appendix B 2.01(b) is the 1-1 correction ...... Vicki had a little plan, little plan, little plan Vicki had a little plan 'twas causing her great woe and everywhere that Vicki went, Vicki went, Vicki went and everywhere that Vicki went she moaned and cried Oh No!