CuseFan

We can ponder what goes on inside the heads of politicians but those discussions are best had well into Friday happy hour!

Sometimes you just need to get creative with your words!

This was the first clue that something crazy was happening, as they do what's easiest for them. I'll repeat this forum's mantra - read the plan document and the loan program and related forms to see if they say anything applicable, they may or may not, but should be consulted first. Next question would be how are the interest payments being applied, is it in such a manner that each "source loan" is essentially being amortized separately (less interest into PS as that principal is paid down and more to the sources yet to see principal payments)? If so, and if the plan documentation supports (or does not prohibit) this then it's probably OK. Also need to make sure provisions concerning loan as directed investment (I assume) and general plan investment election provisions are not being violated by this in some fashion.

Peter, I don't think providing/not providing a death benefit above and beyond the required QPSA would have a material impact on the plan's minimum funding requirements. I do not recall seeing a small cash balance plan limit death benefits to the statutory minimum. I have seen one or two larger plans that provided the minimum QPSA only, mainly due to being a holdover provision from the converted traditional plan. That said, we have consulted on and performed many large plan cash balance conversions over the years and the enhanced 100% death benefit for all was a "selling point" that helped cushion what was future pension accrual slow down for older mid-career participants compared to the traditional plan formula. Also, many of our early conversions gave participants the choice of staying under the traditional formula or converting to cash balance (fully, with a converted opening account balance). In addition to the lump sum option, providing the 100% death benefit regardless of marital status was again an important selling point. Finally, in the small plan arena, where many a cash balance plan is designed to benefit one or more owners, I do not think single or divorced owners would view a partial or no death benefit in a favorable manner.

Does there not need to be a failure of some sort that the 11g is correcting? I agree that HCEs can get increases via 11g assuming nondiscriminatory, but what is the basis for the amendment in the first place?

How, when and why $0.02? Personally, if it's been $0.02 since 6/30/2022, I would treat as zero and file final return for 2022 by 4/17/2023. Otherwise you have a 2022 full year filing due 7/31/2023 and a 2023 final year filing due 7 months after closeout. And what would you show for 12/31/2022 and 1/1/2023 assets? $1? $0.02 rounds to zero. I think practicality and reason should prevail here. I would not like to have the discussion where the client is told they're getting charged for another 5500 filing because $0.02 was left in the account.

Right you are Peter, the very first thing everyone should do in every circumstance is RTFD as that's what it is there for and likely contains the answers to most questions.

Yes, there is no limit on the number of employees of an employer to be eligible to sponsor a SEP, so a larger employer MAY provide a SEP. However, examining the pros and cons of a SEP versus a qualified plan (i.e., PS 401(k)), it very questionable if a larger employer SHOULD provide a SEP. There might be some special circumstances where a SEP works better, but I would imagine those are few and far between.

Agree with all prior comments. Big picture: the successor plan rules are in place so a plan sponsor could not circumvent the in-service withdrawal rules by terminating its 401(k) plan, distributing assets and then starting another 401(k) plan in the near term. If none of the events resulted in an in-service pre-59.5 distribution of assets then I don't think you have any successor plan issues but it certainly doesn't hurt to get legal opinion.

I would consider it a mistake (which violates exclusive benefit rule) and have the plan return the rollover to it's source. It shouldn't count for any purposes under the plan and should be corrected as soon as possible, in my opinion.

Plans still define, or need to define, IRS required beginning date per statute (in my opinion) regardless of whether the plan by its provisions (and administration) maintains an earlier required commencement date. For example, there are defined benefit plans that require commencement at normal retirement age (65) regardless of employment status but those documents are still required to have RMD provisions. And we had clients that desired to maintain 70 1/2 after SECURE, so we amended the statutory RMD requirements but maintained the earlier required commencement. The practical difference being if someone has available and elects a lump sum at a required commencement date before their statutory RBD age they can roll it all over rather than splitting into RMD and non-RMD pieces. And a plan sponsor might want to keep 70 1/2 to avoid actuarial increases between 70 1/2 and later commencement. For purposes of simplifying this discussion I left out the later retirement consideration. I also think the option available to the plan sponsor is retaining the prior commencement structure and foregoing the updated statutory structure (1.0 or 2.0), and an amendment would be required in either instance.

Draft your own, just need to update the RMD language effective 1/1/2023.

Make sure your document has the override provisions for gateway if you are giving them anything more than the 3% SH on DOP comp, otherwise you're violating last day rule.

I think Lou is correct. The regs define the employer as the sponsor and any other entity required to be aggregated under the CG and ASG rules, so if you are a 5%+ owner of any entity in the group you are a 5% owner and an HCE. Otherwise, you could have 21 equal partners owning less than 5% of the partnership, but 100% of their own participating S-corp PCs, then pay themselves W2 under the HCE comp limit so no one would be an HCE. Then they could adopt a rich plan or plans for themselves and exclude anyone else because there would be no HCEs. But if Lou and I are not correct, I call dibs on the design in my second paragraph!

1. Consultation with accountant and/or lawyer would be advisable before pursuing, do not think this is area for retirement plan practitioners. 2. In-service so they could turn around and lend to the PA to contribute? If that was advisable (very questionable, yes possibly indirect double taxation), how could they comply with the requirement that the plan be 110% funded AFTER the distribution to HCE(s)? This is basically #1 but getting the personal funds via plan distribution. 3. Funding deficiency and excise tax, which if made up before too long may not be a big deal, but can go to 100% if not made up timely and get IRS notice. If they can fund a portion of MRC by 9/15 to minimize the funding deficiency, that would be advisable. If the PA could borrow to fund (may require personal guarantees) that might also be advisable. Terminating now (and taking owner haircuts) does not relieve 2022 minimum funding, unfortunately. Good luck.

I know people like the simplicity of a SEP but in a combo arrangement using a PS 401(k) is a much better option and worth the added cost. Unless the DB is PBGC-covered, DC (SEP or PS) is limited to 6% of eligible payroll as noted above - so $18k-$19k on max pay, but a 401(k) provision adds another $22k-$30k that is not available with a SEP. If the person does 402(g) max elsewhere (other employment) then a SEP makes sense. Looks like Schwab has one. https://www.schwab.com/resource/schwab-sep-ira-basic-plan-document I still don't know the ramifications of impermissibly adopting another plan when maintaining SEP on 5305, not to mention any combined plan deduction issues if they funded 2022 SEP to the max rather than limit to 6%.

Not terminating and unfreezing are two different actions. There should have been a resolution adopted to terminate the plan, so now a resolution to rescind the termination should be adopted. If the intent is to also unfreeze the plan then that should also be stated in the resolution - and if unfreezing applies to participation and benefits or just benefits. As you noted, that will require an amendment. If there was a plan amendment for the termination that made everyone 100% vested then I doubt if you can go back to 40% (unless specifically contingent upon plan termination) - but you can definitely go back to the vesting schedule for future accruals. If everyone was simply made 100% under plan terms pursuant to plan termination and the plan does not terminate, then maybe that is cause to revert to the vesting schedule. Was there an event or expectation thereof that gave rise to terminating the plan after only three years (potential red flag) that either didn't occur or was otherwise accommodated? Doesn't matter at this point but maybe an ongoing situation to monitor?

Also, might this then be a distribution "in kind" which must be allowed by the plan document and an option available on a nondiscriminatory basis.

True - but timing of taxation and distribution do not have to be coordinated. T - you can trigger payout based on defined event(s) which can include vesting. A common design I've seen is a deferred bonus - for example, executive gets a deferred bonus for 2022 that vests 1/1/2026 if the executive is still employed and which is then taxable and paid to the executive in 1Q2026. All of which is defined in the plan.

What is a non-model SEP, a provider's volume submitter/pre-approved document? It is the IRS model Form 5305-SEP that precludes maintaining any other plan. Does your non-model plan also preclude? That would be surprising. I do not know the ramifications if the DBP was impermissibly adopted retro to 2022.

And the audit risk is two-fold: if the plan gets audited OR the individual.

And PS contributions are discretionary, so what you are proposing is also equivalent to being able to avoid actual RMD and just say "I made a contribution for the same amount" and then book corresponding deduction and 1099R. These are separate and distinct transactions, not interrelated recordkeeping actions like Roth conversions. Would you directly deposit $30,000 into a Roth IRA and call it a rollover of voluntary after tax and generate a 1099 to substantiate without actually contributing to the plan, then withdrawing/rolling? I wouldn't.

The math works out but you can't simply net implied transactions - you don't have deposit to match contribution deduction and don't have a distribution to demonstrate RMD and justify a 1099R. I would not want to try to convince an IRS auditor that this is all OK because we get to the same place despite skipping the intermediate steps.

I thought that 2.0 enhanced what was provided by 1.0, and 1.0 allowed credit only if the newly established plan did not cover substantially the same employees who were covered by and benefited in a plan of the same employer within the last three years, and it was clarified in 2.0 that commencing participation in a PEP was treated the same as a single employer establishing a plan. However, if you're asking if the spin out of the PEP to single employer plan essentially constitutes a continuation of the same plan for which second year (and subsequent) tax credits should be allowed - I don't know the answer to that very good question. Was the employer's participation in the PEP identified by it's own name, EIN, plan number, and optional provisions (AA)? If so, and its PEP assets were spun out to establish a separate plan, is the identifying information the same? I think that would make the case it's the same plan. That is, you take the letter B out of the alphabet, it is still the letter B. BUT - since this is a tax question, I think it may be best to defer to a tax professional for interpretation.

I think you have an aggregated DB/DC "plan" and the people in that "plan" must get 7.5% gateway if they are benefiting in that "plan". If someone gets no CB because you exclude and no PS because they terminated, then no gateway because they do not benefit. Yes, your 6% DC max is based on compensation of those in the DCP.