CuseFan

yes, if HCE at time of separation.

No such thing - he is either an employee and paid via W-2 (or if has ownership then possibly K-1) or an independent contractor paid via 1099 in which case he is not eligible for any portion of the qualified plans. Notwithstanding, if IRS or DOL subsequently rules this person is a common-law employee and not a contractor based on facts and circumstances, then you might need to include in testing even if the terms of the plan continue to allow for his exclusion from participation. If he is and continues to be above HCE threshold that is unlikely to cause a problem.

Agreed. True, but facts of this case say person was employed at YE, just didn't have the hours.

However, if the NHCEs getting a $0 have no 401(a) allocation at all - i.e., not benefiting - then they do not need gateway.

Gateway, if required, applies to the plan in total - you cannot restructure and say plan A tested on contributions so no gateway and plan B is cross-tested and so only that piece needs gateway.

Does the document specify? Make sure it even allows. I assume the NHCE was offered in-kind distribution and elected cash and they have documentation for such, otherwise you have BRF discrimination issue. Assuming plan document allows but doesn't specify precise method and NHCE offered and declined, then I think they can divvy up assets how they want, equaling their correct individual distribution amounts.

Yeah that one never ends!

Are you from Russia and asking for a Bitcoin ransom after all that happens? Just want to make sure we're not indirectly funding the war in Ukraine by opening this.

agreed - and probably a lessening issue as industry technology improves and this continues as in increasing focus for DOL and IRS and hence (hopefully) plan sponsors.

and you thought the post-office and IRS moved at glacial speed....

I thought that was applicable for the year of termination (ability to include or exclude), so in this situation means you would not include for 2020. I think you have to include somewhere - 2020 or 2021 based on the terms of the plan - and can't just ignore. But I'll defer to someone who sees this more often.

Document should lay that all out, especially if pre-approved, but you likely need to consult the basic plan document rather than adoption agreement. That said, I agree with your assessment - recently had similar situations that we resolved in that manner (we use FTW docs).

Peter, here are my thoughts: The employer has no economic stake in deciding whether to have or not have a cash out provision as all expenses are borne by the plan and trying to keep headcount below audit threshold is not a current concern in minimizing employee expense either, so the decision is one solely impacting participants. Reasons not to cash out: from the employee's perspective, smaller balances may be more difficult to invest similarly in institutional (or other favorable) share classes, etc., subject to minimums that may or may be attainable, subject to higher fees as noted, and maybe there are better (creditor) protections in a qualified plan compared to an IRA in their particular state. On the employer's (paternalistic) side, a cash out provision could lead to more retirement funds leakage with many former employees simply taking their cash outs and spending them rather than rolling into other retirement funds. The flip side is maybe the terminating employee wants some investment flexibility to choose specific stocks or funds not available in the plan and/or convert to Roth. Assuming there is a voluntary option for terminated employees to get distributions, those who wants their funds for these reasons can get them, so no need to cash out. All that said, I think the biggest reason to consider cash outs is the missing participant problem as employers and former employees lose track of each other over the years, and the smaller the balance the more likely that happens.

I thought any separation after NRA was considered retirement regardless of the circumstances, but agree that you should consult the plan document (that's almost always the first answer to any question).

Is this just so all terms get the PS or is it also to satisfy nondiscrimination testing? If the latter, those contributions would need to be vested (whether fully or partially has been debated in the this forum before). That is, you can't 11g amend to provide a contribution to pass testing that will just be forfeited after it is made.

My understanding is yes and yes, but I am long removed from administration of these. Probably needs to provide some documentation to IRA custodian as well.

Never hurts to confirm rather than assume. Although cleaner, in-plan Roth conversions aren't absolutely necessary as after-tax withdrawals can be made and rolled into Roth.

If plan document says forfeit non-vested balance at the earlier of distribution of vested balance or 5 consecutive one-year breaks in service (typical), then anyone not fully vested that is paid out before the plan termination date should forfeit their non-vested balance.

Agreed, and w/o delay because this is on the legislative radar, and even though no restrictions were enacted currently that thoughts of such are not likely going away.

exactly

Partners get K1s, independent contractors get 1099s, but that doesn't mean the entity(ies)/employer(s) are going it right. Who is (are) the employer(s), what is the tax structure, who are the owners, do they have earned income or compensation from the employer and who are the employees? If you have multiple employers, what is the relationship between them? Answer those questions and then you can determine the retirement plan options. And if the income reporting does not properly match the corporate tax structure, you inform them thusly and if they have no interest in proper accounting you punt, not worth the headache IMHO.

Agree - do the accounting combining everything as if it was properly calculated and communicate the issue/risks as noted by Peter. Not sure about a conference, but do specifically remember an ASPPA webcast by Darrin Watson (I watched recorded session) where he specifically said partners in a partnership getting a W2 is wrong, outside of the context of Luke's excellent sequential point.

110% rule applies regardless and would apply to beneficiary if this unfortunate situation becomes a death benefit.

Then you are required to include the person in your coverage and nondiscrimination testing. But on the plus side, if no other 401(a) benefit then don't need to give them gateway.

Yes, that is one of the downside risks w/ROR ICR.