RatherBeGolfing

And any clarification from the IRS will probably come after we have done all of our 2016 calendar year plans...

No worries. My reading (and I believe MoJo came to the same conclusion earlier with the plural language but I can't see the post on this page) doesn't matter much if your document is written to not allow for forfeitures to fund safe harbor, or if the amendment to include it is specific as to the periods. My provider is taking the position that 2017 is in because of the publication date but 2016 is out because the plan year ended before the proposed regs were published. So at this point, I still can't use it because my documents are more restrictive than the proposed regs. Im still holding out hope that FTW will change their position or give us a reasonable explanation, like conversations with the IRS clarified the opinion or something like that.

That sentence alone means that it applies to taxable years beginning on or after the publication date of the final reg. Calendar year plans begun before the publication date of the final reg and would be out of luck until 2018. That is why the second sentence is just as important You may relay on the proposed regulations for periods (plural, meaning not just 2017 when the proposed reg was published) preceding the proposed applicability date. You could read that sentence to include 2017 for calendar year plans but since the language is plural, why should it exclude 2016?

Yep that is my issue with the FTW interpretation as well but they have been very firm on it both in my correspondence with them and the technical update. Unfortunately most of the 2016 work will be done by the time the IRS will issue an answer to the comments so we are kinda stuck it seems...

The proposed regs also say (my emphasis in italics)

It is anything but black and white. There is a current thread on it over Here

Just thinking out loud here... I don't think it is a "late deposit" because it did become a plan asset within the time limit. The fact that it was not allocated to the EEs is a different problem,. but it isn't a late deferral. How hard is it to see what it would have earned had it been allocated correctly?

I agree with what Tom said above. An additional quirk that was brought up in a somewhat recent discussion on this is to make sure that you are 100% clear what your document provides when you change eligibility. Some documents might say that current participants stay in unless expressly excluded. Depending on your type of document you would probably have to dig around in your basic plan document to find it, and then structure your amendment to get the result you want.

Are you threatening the IRS with sharks with frickin' laser beams attached to their head????

LOL if so can I dislike my own post? Im not sure I agree with FTWs interpretation as to applicable plan years

FTW just responded to my request from yesterday with the following 1. Does the FTW document allow for us to use forfeitures for SH contributions in light of the proposed rule? ANSWER: No 2. If it does not, will we be able to to tack on an amendment to allow us to do so for the 12/31/2016 plan year? ANSWER: No. This regulation did not make the changes until 2017 so this can only be applied prospectively. 3. if so, when can we expect such an amendment? Since CPAs are already beating down our door for 2016 numbers, we need guidance on this ASAP. ANSWER: We will be releasing an email soon with more details so please watch for that communication.

No worries I did the same thing earlier and then found the original thread :)

Thanks. I went over the FTW VS Document and I'm pretty sure it requires an amendment as it appears they did not draft the document to be flexible in case the IRS changed their minds. I spoke to FTW support and they said they were reviewing the guidance and will send out a technical release in a few weeks... Edit: If anyone else uses FTW documents it may speed things up if you submit a support ticket asking for speedy guidance. The more the merrier right :)

I wish the Mods could sticky posts so they would stay on the top of the list. Especially when we have new published guidance, it would eliminate duplicate threads and funnel it into one place. On a side note, I figured out how to delete my duplicate thread

I made the same mistake and started a new topic...there is a thread here for the release. I wish the Mods could sticky stuff like this so it stayed on the top when it is newsworthy

So we can rely on the proposed reg with respect to 12/31/2016 year end plans if the document allows for it. What about a plan that does not allow for it because the PPA language did not anticipate the IRS change of heart. Could a January 20, 2017 amendment be applicable to the 12/31/2016 plan year?

Thanks. I'm thinking the opinion has something about ASG in it and the advisor is getting his terminology mixed up.

Dr. Payne owns 100% of Payne PLLC ( A ) Dr. Aichen owns 100% of Aichen PLLC (B) Aichen Payne PLLC (C) is owned by A & B A owns 60% of C B owns 40% of C Per attribution, I would say that Dr. Payne owns 60% of C and Dr. Aichen owns 40% C. Dr. Payne also owns 100% of another practice and is considering his financial advisor wants to install a 401(k) plan. The advisor has been told (supposedly by a lawyer) that because the doctors as individuals own 100% of their PLLC's which own their shares of C, they have a controlled group. I have asked for the exact wording of the opinion, but I just don't see a CG issue here. Am I missing something?

Yep, that is how we handle non-payroll loan payments to John Hancock. Participant cuts check to ER, ER cuts check to JH and everyone is happy.

I agree. My point was more along the lines that the employer can't throw their hands up and say "sorry we don't have it". If they don't have the records, they have to get the records from a service provider, they don't have another option.

No question about it, it is the PA's responsibility. And they have to have the records, they are required to by law. If they don't, their service providers do. If the service providers don't... Can the PA even execute what is in the QDRO if it has no records? I just don't see how.

FWIW, I use 2K for 401(k)+SHM only plans. The instructions are unclear at best and generate inconsistent answers, which was part of the reasoning for dropping the codes and adding compliance questions to the proposed 5500. I have never heard of the IRS making a big deal of the codes if they are wrong but I would rather use one than omit one.

By not breaking the law...

No No No. You cannot exclude someone based on national origin, period! Excluding someone because they are not a US citizen is excluding based on national origin. Title VII civil rights act ring a bell? You do not have to be a citizen to have a valid SSN. Many non-citizens have valid SSNs.

And they probably also missed the "with no US income" part