Tom Poje

but if other contributions are made, then top heavy would have to be provided on full year comp (though that portion would not have to be 100% vested)

the second part of your question is easy - if there are any other contributions besides the safe harbor then you will have to make sure top heavy is met. the first part of your question is gray. last years ASPPA conference an IRS representative said if there are no other contributions besides safe harbor, the plan gets a free ride on top heavy - even if comp is based on date of participation. this year's Western Benefits conference the IRS representative indicated top heavy would have to be provided (basically because no contribution meeting the ACP safe harbor was made - so no free ride on top heavy) the agent did indicate that clarification would be forth coming, but no timetable was given.

if I understand your question correctly you have 2 plans 1 safe harbor 1 401k if true, there is no requirement to aggregate the plans. in fact, if you did you would lose the safe harbor status, so I am assuming you are not aggregating the plans. if an HCE is participating in more than one plan, then you have to use total deferrals in both plans. There is no similar rule for combining NHCEs numbers. now comes the fun part. the preamble to the proposed regs (not the final 401k regs) contained the following explanation A plan using the safe harbor method must also comply with certain other requirements. Among these is the requirement in section 401(k)(12)(B)(ii) that provides that the rate of matching contribution for any elective contribution on the part of any HCE cannot exceed the rate of matching contribution that would apply to any NHCE with the same rate of elective contribution. Notice 98-52 advised that the general rules on aggregating contributions for HCEs eligible under more than one CODA would apply for this purpose. The IRS and Treasury have determined that such aggregation is not applicable under the ADP safe harbor. Accordingly, these proposed regulations would not require that elective or matching contributions on behalf of an HCE who is eligible to participate in more than one plan of the same employer be aggregated for purposes of the requirement of section 401(k)(12)(B)(ii). Thus, the rate of match for purposes of determining whether an HCE has a higher matching rate is based only on matching contributions with respect to elective contributions under the safe harbor plan. However, for an employer that uses the safe harbor method of satisfying the ACP test, the rule in Notice 98-52 is retained for applying the ACP safe harbor, with an exception for nonsimultaneous participation (as discussed in connection with the ACP safe harbor below). so if the HCE particiaptes in both plans, (and assuming you are not permissively aggregating the plans) then adp safe harbor is safe, but acp safeharbor will probably fail due to rate of match. as noted, if HCE does not participate in both then the ACP safe harbor is safe.

I screwed up. I was suppose to protect the sheet so you couldn't peek.

12 monkeys is incorrect. other than that, I guess you guys are movie freaks.

ok, here you go, more 'missing persons'. One group of 8 are all child actors (boys). sorry about that ladies, that is all I have found for now. Hey, I actually knew a couple of the 24. I believe I have managed to set this up so you can type in the names in the yellow boxes and the spreadsheet will tell you if you are correct.

which is why they 'promised' clarification would be forthcoming.

the logic is in 1.410(b)-7(e)(1) which says include all plans that could be permissively aggregated ....and if you read through to the very last words of the paragraph---> without regard to paragraphs ©(1) and ©(2) ---> which is the disagregation for purposes of the ratio percentage test

it is the after tax employee contributions that are not included - well I suppose one adds catch up contribution to the list of things not to include.

the issue is as follows: The term ‘top-heavy plan’ shall not include a plan which consists solely of – (i) a cash or deferred arrangement which meets the requirements of section 401(k)(12), [ADP safe harbor] ]AND (ii) matching contributions with respect to which the requirements of section 401(m)(11) [ACP safe harbor] are met the plan is question provides no match. therefore, do you satisfy (ii)? it was drilled into my brain in English class that 'and' means you have to satisfy both conditions. however, since there is no match, then there is no ACP test, so does that part even apply? ...... you are correct, normally top heavy is 415 comp, but the safe harbor plans do get a free ride even if comp from date of participation is used.

since it is 4:15 (my work limit) the missing answers 3. Big Fish 6. the Hotel New Hampshire 7. Thirteen 9. Secret Window 14. the Perfect Score 16. Whatever happened to baby Jane 19. Brazil 20. A Life less Ordinary 21. Hero 22. Madeline 33. apocalypse Now 36. Monty Python and the meaning of Life. hopefully I can get time to create a new puzzle for WDIK by Friday.

This is an issue being hotly debated. some IRS agents have taken this position. ASPPA is fighting this interpretation, hopefully there will be some more information on this shortly.

I would agree. It is possible to have 2 separate plans. Permissive aggregation rules (unless you have a bad situation of someone in both plans requiring mandatory aggregation) Since you don't have to aggregate, if you can get past coverage you should be ok. If you have to aggregate, then you have to use the same method

from the Western Benefits Conference: in response to the question What if a plan uses comp from date of entry, and only offers a SHNEC? The IRS response was that the plan needs to make a top heavy contribution. I think Craig Hoffman's jaw hit the floor. He respectfully disagrees. (This is the opposite of the response at the 2005 ASPPA Fall conference) The IRS agent then agreed that clarification would be coming sometime in the future. I'll have to look through my notes and see what else I've got to share, but after being gone a week I have one or two or three or...things sitting on my desk to do.

no new puzzles cuz Tom trying to learn something at the Western Pension Conference. I still have it there are 12 movies not identified on this one. 3, 6, 7, 9, 14, 16, 19, 20, 21, 22, 33, 36 guess I will have to post the answers soon!

your memory is correct - you calculate the percentages using the plan years ending in the same calendar year - this is for the avg ben % test only. you can not permissively aggregate plans that do not have the same plan year for other purposes.

well the guesses seemed to have stopped...I wouldn't know any of them, so I have to look up clues #6 starred Rob Lowe, so maybe that will be enough of a giveaway

Bah! I never copyrighted my music, so someone else made a fortune by changing a few words. here was my 'original' work. sort of sound like some band might have used used, doesn't it? Yesterday, 65 it seemed so far away Now its come today, it’s here to stay Its too late for a 401k Suddenly, I’ve not half the cash I used to see Bill collectors shadow me Oh, retirement came suddenly My sa-vings are so low, I don’t know just where I’ll stay I did something wrong, now I wished I saved and put away 401(k)s, deferring’s such an easy game to play now I need a place to hide away Oh if only I had a 401k Mm mm mm mm mm mm mm ......... by the way, about more about 'mojo ono' http://www.venablemusic.com/press/entertai...2001/pg-23.html

we had a guy here a few years ago we ending up calling MoJo J J after the character MoJo Jo Jo from the powerpuff girls. If I recall there was a special character MoJo Ono. Is that who you are referring to?

Andy - when you figure out what it is, tell me so that at least I will know. let see, weather prediction for Sunday 108 high. there is a minor league baseball game at 12:00 (AAA). the team here is (AA), both for the Dodgers. the company has season tickets next to the dugout, so I actually know a few of the players by sight. I'm dumb enough to go sweat it out just for that. lest you worry, I already printed out times and location for church on Sunday. that always comes first!

WDIK- all correct, but how in the world did you get Harvey? One of my favorite movies, but I can't even tell what that last shot is showing. Many years ago (many, many) - we were watching a Ted Turner colorized version of some movie I don't recall, and I made the comment that he was going to colorize Harvey - all except for the rabbit. it took a couple of minutes and one person looked at me and said something like "Now wait a minute...." that was worth the laugh.

ah, you must have me confused with Larry Deutsch - he is the wizard on on convoluted cases. while interesting, I always wanted to ask "what happens if NHCE 21 quits?" besides, you don't have to have to have to try and have me panic to break into song - since I am already in that state of mind, the folks who attend will have to put up with a Louis Armstrong number - and if they are foolish enough to stay for the whole thing maybe even and Elvis number at the end.

Tom is more nervous about getting ready for the ASPPA talk next week. But you have successfully completed the Simpsons. good job to all! especially are resident genious WDIK for holding off on all the answers!

very good. Midnight Express is correct. the other three, well, one of the guys in the office solved them (9, 18, and 20) and you folks thought the ASPPA tests were difficult!

what does the document say regarding forfeitures. the formula may be 0% for the money purchase, but if forfeitures increase contribution then I would think you would allocate comp to comp (or pay expenses as you indicated)