CuseFan

A plan sponsor properly advised and serious/responsible about compliance would have kept signed and dated copies and/or certified mail return receipts (IMHO).

You are correct, no CG, but make sure it's also not an ASG before designing separate plans.

As a transfer of same money types with same vesting and, unless a new election is made or funds are different, the same investment mix.

1. I'm entirely not sure about ASG but I think you're right. 2. Yes, plan 1 would be a multiple employer plan. 3. Correct, you could permissively aggregate except for Company A2 which is not part of CG. 4. I'm not a fan of the strategy but know people in this forum who see it or do it all the time. I think a detailed cost/benefit analysis should be done in terms the audit cost savings (or simply the overall cost of administering one "large" plan) versus the (total) cost of maintaining two separate plans. Also, in the restaurant industry there is often high turnover, so each plan would need to properly manage the timing of paying out vested terminations to avoid future participant count surprises.

If the document doesn't say that then the plan sponsor has a bigger problem.

The documents will govern ongoing eligibility, that is, for which plan is the person an eligible employee. There is no basis for a distributable event, so a trustee to trustee transfer of the existing plan account is the only way to move money - but both plan documents should have provisions to support that action in the event of a participant relocation/transfer. Unless this was a frequent occurrence I do not see a problem in doing this, provided the plan documents support.

Not sure about DCP language, but in DBPs you generally cannot change your benefit election after your "annuity starting date".

https://www.irs.gov/retirement-plans/international-issues-affecting-retirement-plans Here's some more info from IRS. Having a dual qualified plan to accommodate one person is not likely very cost efficient and unlike IRS, Hacienda requires submission for approval of future amendments. Although counterintuitive, it might actually be better to have a separate PR 1165 plan on the island. I don't know all the ins and outs but we have a dedicated PR RK unit, PR trust company, and PR pre-approved plan and I can put you in touch with a knowledgeable person who could discuss pros/cons of a dual qualified plan versus separate plans.

If the provisions are required rather than optional then do the amendment - it matters not if someone actually have taken advantage of it.

Isn't this the type of situation where we need to ask if there are any minor children? And can't remember if it mattered if they are in a community property state. If/when new pension legislation gets signed that could all be moot anyway, so she may be good to go in 2023 regardless.

Thanks - I wasn't thinking about even though the original question was in that context. I was thinking of this in terms of where a cross-tested profit sharing (and maybe even cash balance) was part of the equation and so limiting HCE contributions could be helpful in passing average benefits percentages. Shame on me for over-complicating on Friday afternoon!

Where did the document come from and who are all the service providers "none" of which can support the specific provision (which means a serious disconnect between those functions)? If it is a provision in a plan document and has been communicated to participants (SPD) but you are not offering it because your service provider(s) cannot support then I agree with MoJo that there is a fiduciary issue. On the other hand, if it is an available document provision (an adoption agreement option) for your document version but which has not actually been selected because your service provider(s) will not support, then that is not an issue between the employer and plan participants. It is a concern as MoJo stated as to the quality of the service provider(s).

Agreed - I've seen SH plans that exclude all HCEs from the SH and others that only exclude Key Employees from the SH, which makes sense if top-heavy as non-Key HCEs must get TH minimum.

That is a great point that is often overlooked - if a non-safe harbor "plan" (401(a), 401(k), 401(m), etc.) satisfies nondiscrimination (401(a)(4), ADP, ACP) using a definition of compensation that satisfies 414(s) (such as 415 comp) then the definition of plan compensation used to determine compensation and benefits need not be separately tested and pass such test. A lot of times it is easier to just skip to testing using a safe harbor gross compensation rather than do a compensation test first and hopefully pass so you can test nondiscrimination using plan compensation. You're likely better off on your results using the safe harbor compensation anyway.

So depositing money by year-end attributable to a drafted plan document received by year-end was the justification (disguise?) for backdating the adoption thereof, interesting.

No. It is equally applied to all. Any loan repayment schedule will have a bearing on income and one's ability to repay, so HCEs are going to be better positioned in that regard any way you look at it.

agreed - that is the correct application of the provision

That is, taxed as ordinary income at whatever incremental rate bracket applies to your situation. I assume FICA and Medicare taxes were applied during the accumulation of your account, otherwise those taxes would be due as well.

and you obviously cannot apply to existing loans or any that have been applied for prior to any such amendment being executed.

Why not? Isn't 72(p) the maximum allowable parameters? Why couldn't a plan, either via it's document or the loan program, enact more restrictive requirements? 72(p) requires loans amortized at least quarterly, but most plans amortize per pay period. Plans are not required to collect loan repayments via payroll withholding but nearly all of them do. 72(p) allows longer than 5 years for mortgages but some plans still limit to 5 year terms. Etc. Etc.

of course assuming the 2021 extended tax return due date has not passed and all can get fixed by 9/15, if that's your deadline.

Agree with Bri, no plan document = no qualified trust = still corporate asset. How/why a trustee/custodian would open a plan account without a copy of a signed document baffles me. Establish the trust account now, and either transfer the previously deposited funds or withdraw from the "corporate" account and deposit into the trust, then close that prior account. You can roll dice that IRS never sees this or even makes a case if it does, but why take that chance when there is an easy fix?

Others may disagree, and this is likely gray enough to get ERISA counsel involved, especially if the employer and affected populations are relatively large, but I think that employees who are "on call" and/or "per diem" may be different than your standard part-timer and not an hours-based exclusion. I have had clients categorically exclude such, and without regard to actual hours worked, so per diem employees who happened to work more than 1000 hours in a year were still not benefit eligible. However, if the employer's industry is such that employees frequently shift into or out of on call or per diem status, monitoring eligibility compliance is a pain to say the least. I actually had a client reverse that exclusion because administration was not worth the trouble relative to the cost savings. It was a situation that required balance between corporate finance (cost), HR philosophy, administrative burdens and risk management (compliance). Another note regarding on call status - if employees are paid (albeit at a reduced rate) to be on call during specific times, then those hours must be credited. For example, say a nurse is paid $10/hour to be on call 24 hours over a weekend, (s)he gets credited for 24 hours whether called in to work 0, 4, 8, 12 or whatever hours - of course you don't double count with hours actually worked. This obviously doesn't apply if these people are excluded. Good luck, this is not a trivial cut and dried issue and unless it would yield substantial savings is probably not worth the time and effort chasing down that rabbit hole, in my opinion.

If this was a totally discretionary profit sharing contribution then it would be permissible if made by the employer, so as the Bird tweeted, transferring from a personal account is a deal breaker.

Although most people's usual convention, there is no requirement to order plan numbers sequentially according to their effective date or the date actually adopted.