RatherBeGolfing

Yep, this is how it would be handled if it landed on my desk as well. Although, most auditors I work with are very reasonable as well and would probably offer to pay half of it in a situation like this.

But they told me they were a FIDUCIARY!!! You mean I actually had to read the fine print and maybe look up Awesomefiduciarytrainingforoutofworkrealestateagents.com who issued the fiduciary "certificate"?!

If the user lacks expert knowledge of ESOPs, it should probably be passed on to a user who DOES have said knowledge All kidding aside, this type of question always makes me a bit uneasy. If you don't understand the mechanics behind the questionnaire/input system, you probably shouldn't use it to create a plan.

I have had the same requests but I always just provide the SPD and they are fine with that.

Austin, how does the opportunity to exploit the hole in the regs apply to one and not the other? I agree, the example ETA brought up is more extreme than the example in the EOB, but I just don't see that there is anything in the statute to suggest a limited opportunity to use the loophole. The EOB also states that Treasury could (but have not) seek an interpretation that would preclude loaning out more than $50,000 in any 12 month period when there are more than two loans. Without such guidance, the loophole is still available.

I'm fairly certain that ETA is correct that a literal reading of 72(p) actually allows for this. This is because the statute does not specifically state that you have to carry over your adjusted limit in the second loan to the third loan. From the EOB Applying the $50,000 limit when there are more than two loans in a 12-month period. Where there has been more than two loans in the last 12 months, remember to take the highest outstanding loan balance at any time in the 12-month period, and subtract the current loan balance at the time of the new loan to determine the adjusted maximum loan limit. As the following example illustrates, it is possible to lend out more than $50,000 in a 12-month period provided the outstanding loan balance at any time is not greater than the adjusted maximum dollar limit.

Having been through this before, here are my observations Attaching a statement explaining that the audit is not available lets you submit "on time", but incomplete In my experience, the DOL will NOT consider the incomplete filing timely. Attachments are reviewed to before they are made publicly available When reviewed, your filing will most likely be flagged as incomplete, and you will get a love letter telling you that you are on the naughty list and can be subject to huge penalties, but if you pay the user fee and file under DFVC in XX days you are back on the nice list. If you don't file on time because you are waiting on the audit, you will pay the same user fee but won't subject yourself to the the DOL/IRS follow up timeline. If this was my client, I would hold off on filing until I had the audit and could file late but complete and go through DFVC right away.

Nothing yet...

There is similar relief for Florida *EDIT The relief I mentioned was for Hurricane Hermine and covered Citrus, Dixie, Hernando, Hillsborough, Leon, Levy, Pasco and Pinellas counties. With the damage in St Johns and Volusia, Matthew relief has to be coming...

Another vote for get an attorney. I know you said you can't afford one, but this is one of those cases where you really have no choice, you need legal representation. Many attorneys will give you a free initial consultation, at the very least you should take advantage of that and see what they say.

Fair point, but as long as the excluded class is reasonable it shouldn't be a problem. Obviously, you wouldn't define the excluded class as "non-citizens" or "French Canadian", but if you can put them in a class that meets bona fide businnes criteria or job classification it is not an issue. We don't know the setting here, but using "visiting professor" rather than "J-Visa Employee" should do the trick. In order to do that, you cannot have a problem with excluding "visiting professors" who are US citizens (assuming that excluding visiting professors would succeed in excluding the entire group of people you wanted to exclude). I agree,it was just an example of non-discriminatory wording.

Fair point, but as long as the excluded class is reasonable it shouldn't be a problem. Obviously, you wouldn't define the excluded class as "non-citizens" or "French Canadian", but if you can put them in a class that meets bona fide businnes criteria or job classification it is not an issue. We don't know the setting here, but using "visiting professor" rather than "J-Visa Employee" should do the trick.

If you have the numbers I don't see why that would be a problem.

Glad to hear you are ok Tom. It was sad to see the images of St Augustine turning into a river last night so I imagine it must have been pretty bad in Jax as well.

Im on the DOL committee for ASPPA GAC, I have forwarded this issue to my group to see if is regional and luck of the draw or if it is part of a bigger enforcement initiative. I will let you guys know what I find out. J

I am assuming (which is never a good thing) that these used the DOL calculator to figure out the lost earnings but did not file VFCP. I know the Philly office has done this before. Their position is that you are not allowed to use the calculator unless you file VFCP. If you use it and correct outside VFCP, they may not consider it corrected. They may be trying to bring this issue back up though other regional offices ugh

Yes. Certain non citizens working in the US do not have to pay SS and Medicare taxes. You can be a non-resident for immigration purposes but a resident for federal tax purposes though, in that case, you are not exempt from SS and Medicare taxes.

If it is a recent hire, chances are good that she is a non-resident. However, she gets W-2 comp so she probably has US source of income. The exceptions for US income in §861(a)(3) are very narrow and on a J-Visa I Im very confident that it will not qualify for an exception. She is not excluded. Remember, the exclusion only applies if: “an employee who is not a U.S. citizen, and who is a nonresident alien for federal tax purposes and who receives no U.S. source income (as defined in IRC §§861(a)(3) and 911(d)(2)) from the employer.” (Source: EOB Ch 8, Part B, Section 3, #4) The non-resident alien exclusion is really only an issue that should come up in a company with foreign operations. Hope that helps. J

Unfortunately, the person being unpaid now (who is supposed to be forced out) probably means that they are missing. When the person is missing, it can easily happen that they are not paid out before filing for Social Security. If, after this year, they are found/forced out, they are just reported again with a "D". I know that is the way it's supposed to work. But I've found that reporting the distribution does not necessarily prevent the SSA from telling the participant they still have money in the plan. You are correct, the SSA is a mess when it comes to telling people that they have assets in an old plan, even when you report them as distributed. But government shortcomings doesn't change our duty to report. It is just a risky position for a TPA to take when it is clearly not supported by rules or regs. In theory, each client they do this for could be on the hook for $5,000 in penalties per return.

Good luck Tom! We got through it with mostly heavy winds here in Tampa, still strong gusts and some rain down here. I hope you get to keep power, I lost it for over 4 weeks when I lived in Jax and the storms went through in 2004. Stay safe Jim

Dang it, no hills here in Florida to run to :/ Luckily, we are not supposed to get the worst of it here in Tampa but you never know with these things,.

Yes, and you can add a fixed match to that (still not matching deferrals in excess of 6%), max out your HCEs, and still be exempt from top heavy

Great, now I have to wipe coffee off my monitor...

You are absolutely correct, you cannot rely on the 80-120 rule for a first year plan because the rule allows you to CONTINUE to file as a small plan. It may be time to reconsider the "auditor" in this case...

If it is a non-EZ plan and you have participants, there is no exemption to the filing requirement simply because you had no contributions / no assets. File the 5500 and move on.