Griswold

It's an interesting theory, but I'm not aware of any case law to your point. But I would think if you can show them that the 2012 and 2013 audits included an examination of the ESOP, you might be able to get them to drop those years from their current inquiries. Perhaps there is still someone at Entity A who could speak to that.

I don't believe the SECURE Act amends the part of the Code that contains the 5 year rule. So, no, the five year period would not be increased to ten.

I think you're looking for IRC 409(h)(1)(B): (h)Right to demand employer securities; put option (1)In general A plan meets the requirements of this subsection if a participant who is entitled to a distribution from the plan— (A) has a right to demand that his benefits be distributed in the form of employer securities, and (B) if the employer securities are not readily tradable on an established market, has a right to require that the employer repurchase employer securities under a fair valuation formula.

Thanks.

Thanks, Kevin. Yes, we think the other employees were all offered entrance , so we're not too concerned about universal availability. And yes, we suggested a simple self-correction with a distribution to the one ineligible. But hey, clients know better, right? I think that's where we'll end up, but wanted to see if anyone had insights on the direction they're asking about.

Is this a post-termination consulting arrangement with a a former service provider? Or a standalone agreement with an independent contractor? If a true independent contractor, they're generally exempt from 409A if the provide significant services to other unrelated parties.

A plan sponsor was running payroll for another non-profit and allowed an ineligible employee into their 403(b) plan. Rather than doing a (relatively) simple correction, they'd like to try and recast the plan as a multiple employer plan. I don't even know if the prototype sponsor would allow them to do this. I guess my real question is would they have to refile 5500s for the years where the ineligible employee made contributions? Any other exposure on making this move? Thanks.

I think the relevant language is in Section 403(a): "Such trustee or trustees shall be either named in the trust instrument or in the plan instrument described in section 402(a) or appointed by a person who is a named fiduciary...." So, if there's a named fiduciary appointing the CEO and HR head--and reappointing each time those folks are replaced--it seems like you're in the clear.

Tom-- Do you have this Q&A? I'm going through a similar issue and looking at the JCEB Q&A for 2010 and don't see this response. Could you point me to it? Thanks.

Thank you all for your responses.

this was my first thought, but, I'm a bit out of my element here in the 403b category...

Non profit #1 sets up non profit #2 and runs payroll for them. #1 lets a #2-ee into #1's plan. I see provisions in EPCRs regarding how to fix letting employees in early, but this doesn't seem to fit that. She seems ineligible to me, though she's on the payroll... Any thoughts?

Thanks.

Any reason why you can't have employees of the same entity in two different fully insured health plans? I don't see why not, but can't seem to find any authority on this either way. Thanks.

Does the acquiring company have any sort of qualified plan (like a 401(k) plan)?

Thanks. I'll check. Do you have any legal authority for this?

That's my next step. The only thing that occurred to me is that maybe the date for NRA in Plan A is 62 and for Plan B it's 65, so perhaps the notice arguably isn't good for the earlier benefit. But, yes, waiting to get a hold of the plans and the notice.

Company A sponsors Plan A; Company B sponsors Plan B. After Company B buys Company A, Plan A is frozen and merged into Plan B. Company A employees begin accruing new benefits under Plan B. I'm being told that the Suspension of Benefits Notice that Company B provided is only good for the new benefits and not for the old benefits, but I can't figure out why. (I'm getting this second hand and haven't seen any plan documents or the notice yet). Any thoughts?

I typically see the day before closing, fwiw.

There are no rules about who (or what) can become an ESOP trustee.

If a company wants to convert from an S to a C so that the owner/seller can make a 1042 election, will the owner have to then wait three years to meet that holding requirement of 1042? Or does their ownership of the S stock (assuming for three years) tack over? I could have sworn that the ownership "tacks" but I can't find much support out there. If anyone has some support, I would appreciate it. Thanks!

Oops. NM. Think I found it. 2550.408b-3(a)(3)

Does anyone know off the top of their head if there's a corresponding section in ERISA for the definition of an exempt loan found in Treas. Reg. 54.4975-7(b)(1)(iii) ? TYIA

My 2 Cents-- Sort of. Eligibility for the DFCVP is limited to plan administrators who have not been notified in writing by the Department of a failure to file a timely annual report under Title I of ERISA.