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Can a 403(b) (non -church) Plan invest in ETFs? It is my understanding that some ETFs are considered mutual funds as long as it is a Registered Investment Company under Section 851(a) of the code. Can anyone confirm with a site? Thanks

Can you clarify why you think this would satisfy the common law employee test? If seller is leasing all the employees who are doing the work for buyer (so all managers, supervisors etc are part of leasing group) and buyer is simply "paying" the seller for the work (no payroll, no other benefits, no real direction etc) - just a lump sum for all services through some sort of services agreement. This would appear to not satisfy the common law employee test. Is the risk the fact that the common law employee test is so subjective?

I have a 403(b) Plan with a TPA which charges 3% of the loan balance annually as their loan fee. I have never heard of a loan fee based upon loan amount. On its face, this appears unreasonable. However, I wanted to ask the group if they had seen loan fees set up in this way. I am more used to seeing a set fee for loan initiation (around $100-$150) and an annual maintenance fee (around $25). Any feedback would be appreciated.

The cite for the notice is actually 2015-49 not 2015-59....

We would like to offer lump sums to current retirees upon the termination of the DB plan. The PBGC has no issue with it but IRS Notice 2015-59 indicates that the IRS is going to publish retroactive regs which will eliminate the option under 1.401(a)(9)-6, A-13 to offer lump sums to current annuitants in the event of plan termination. I've seen various articles which seem to indicate that they don't anticipate the IRS eliminating the lump sum options on plan termination but the notice appears to indicate otherwise. Anyone have any recent experience with the IRS on this?

I have a governmental employer who has a 401k plan. Has anyone successfully used EPCRS to ask the IRS to allow a conversion from a 401k to a 401(a) Plan? I am hopeful that the IRS wont disqualify the plan and will work with us to get the plan type corrected. I plan on submitting an anonymous VCP application asking for them to allow a retroactive amendment to change the plan type from 401k to 401(a) but am open to suggestions.

Our Esop plan doc requires payment in lump sum or in a period certain not to exceed 5 years. We don't have a distribution policy. Can an participant who has elected a 3 year distribution period now extend that payment period to 5 years by executing a new distribution form? Our plan does not say one way or another. However the requirement for a "payments over a period certain" could be interpreted as not being able to be changed. Although the new 5 year period would also be a period certain... I can't find where the change would be a violation of any ERISA / ESOP distribution rules.

Vesting is actually a 3 year graded schedule. Payout isn't until CIC. It may fully vest before CIC.

I am having a debate with some tax colleagues regarding 409A compliance requirements for a SAR agreement. There is a SAR agreement that doesn't exactly look like a SAR agreement. The payment is based upon the increase is stock value but the stock right is not "exercisable" - it matures and is payable only upon change in control, death or disability. Accelerated vesting upon CIC as well. To me it looks more like a phantom stock plan that has to comply with 409A. [Also - if payment triggers are all 409A compliant - why not just make it compliant] Others believe that because the amount to be paid is based entirely on the increase in the stock price that it is exempt under the SAR exemption. Note the company is a start up so FMV is going to be a good faith / reasonable written report. Any inputs into the debate would be appreciated.

If I have a controlled group of companies A, B, and C, all participating employers in Plan X, is it possible to design it so that each separate company can make a different discretionary profit sharing contribution (or none) based upon how well that company does? Without QSLOBS. Thanks

It would matter because if they were still an ALE and offered no health insurance they would be subject to both a and b penalties. They actually have no option to offer health insurance as their stop loss has a renegotiation clause due to the large change in employees and wont re-insure them and they can't get fully insured plan as they have too much exposure due to M&A qualified beneficiaries. They aren't changing they are eliminating their insurance as they can't get any insurance according to their broker.

If a company sells substantially all of its assets to a buyer, but retains less than 50 FTEs for a short period of time to wrap up corporate affairs, are they still an ALE? ALE is determined on prior year employee count. Seller will have less than 50 full time employees next year and will be terminating their health care plan as they will only be in operation for 6 months or less. I don't see any transitional relief regarding ALE status in an asset deal. Any thoughts?

Ok. thanks. The language in the preamble "The reference to customary means that by the nature of the position an employee in this position typically works for a period of six months or less, and that period should begin each calendar year in approximately the same part of the year, such as summer or winter." seemed to indicate that the actual "nature" of the position (not how I as the company defined the position) came into play. Thanks

I have been reading the ACA regs on seasonal employee (not worker) trying to make a determination as to whether an uptick in business (summer months or spring etc) which is pretty predictable and the workers hired to deal with the uptick would qualify as seasonal employees. For example, could an accounting firm hire a bunch of accountants for 80 hrs a week for 4 months over tax season. Or do UPS drivers hired for 3 months to deal with the X-mas / Holiday rush qualify for seasonal status. What about a manufacturing company who has a busy season based upon demand (people buy product X usually in spring) who hire workers for 6 months. The nature of the work isn’t seasonal (not based upon a time of year such as fruit pickers or ski instructors) however the busy season is based upon a business seasonal increase in business. Any thoughts would be appreciated. The regs aren't that helpful ...

I have a client who failed to include a non-cash item (trip) in the comp of several employees and therefore said employees did not have the oppty to defer on those bonuses. The plan uses the 415 safe harbor of comp with no exclusion of bonus. I believe the only fix is to treat this as a missed deferral oppty and have the sponsor make the corrective contribution. (assuming employees aren't already maxed out, comp isn't above comp limit etc). Any other creative suggestions?