Kansas401k

Question for this group. I am currently working a lead for a plan. They filed their 2020 5500 late using DFVCP in 2022. They have not filed for 2021, 2022, 2023 or 2024. I don't yet know why they haven't filed. Question is can they use DFVC program if they've had another mess-up? What is the next step for this firm if they cannot use DFVC program? Thanks in advance.

Peter, thanks. This PSP has money purchase rollover on some of the participants who have been in the plan a few decades. I believe that is why the spousal consent requirement remains in place. Thanks much for your input!

401(k) PSP. Plan is in termination and we are in the process of paying out all accounts. Participant notified us today that he's had a divorce pending for 2 years and they are waiting on judge to approve divorce settlement. Participant indicates that ex will be receiving a portion of his 401(k) and will not sign the rollover consent. Plan requires spousal consent for rollover. Any suggestions on how to proceed? I could not find this in the pending topics, perhaps I didn't use the same terminology to search. Thanks in advance.

Is there an IPS (Investment Policy Statement)? All of our plans have an IPS which plainly states what type of investments are and are not allowed. Might be good practice to add one even if you do talk the owner into rolling out and investing in this asset in his IRA.

Check your loan policy and procedure carefully. We have a few plans with a loan policy that states: If the participant is currently in default on a loan from this Plan or any other plan of the employer, the participant may not have an additional loan from this Plan. Whether the deemed distribution is still considered as being in default, I'm not sure.

I believe this is a bit different than the "fire me so I can take my money" fraud. Participant left employer in August, 2022. Earlier this month (August, 2023) participant requested distribution paperwork. Per participant the paperwork is in the mail back to us. Employer emailed today a list of hires and rehires and this employee is included. I tend to think that if the employee is employed when I get the form back, I cannot do the distribution regardless of participant's intent or the date on the form. What am I missing?

ERISA1, if you go out to LinkedIn and search for CWM retirement plan services and choose "people results", you can find a few former employees and also some FA's that list that their investment services are/were offered through CWM. Might DM some of them and see if anyone would help you out.

I realize it would cost time and money (lawyers) but what if they used a DRO?

I may be obtuse, but why would you not want to offer Roth to all participants as it continues to gain in popularity with participants, advisors and tax preparers? and I know this doesn’t answer your question. I’m only curious.

I'm jumping on this thread because it's the most similar situation I can find already addressed on benefitslink. 6/30 PYE 5500 is due April 15. Audit is not complete - only because the TPA's SOC-1 is not complete. Any relief here for the plan sponsor when it's out of their control? I'm assuming no but throwing this out there for input. Thanks.

John Hancock and American Funds Recordkeeper Direct both allow you to allocate future or to reallocate your entire account. 99% of the time, participants want to reallocate the entire account but I have had a few that only wanted their future contributions to go to a new fund.

"This could have been avoided had they involved me at the time of the acquisition but they chose not to." So aggravating when plan sponsors don't communicate on M&A's until it's too late. I feel your pain!

Thanks all for the excellent input! Much appreciated.

The HCE's election form indicates the same deferral percentage as the employment contract.

I am in a very preliminary discussion with a new plan. Just discovered that they have an employment contract with one HCE employee that states that the HCE will receive X% compensation annually to be contributed to his 401k. The amount is going into his gross pay and then to the plan as employee deferrals. It is not going in as employer contributions. I'm not comfortable but haven't quite worked out how big of an issue, if any, this is. On the one hand, they are just giving the HCE funds that he can choose to put into or not put into the plan. But since they clearly labeled it as "pension funds" (they have a 401(k) not a pension) it concerns me as a possibly discriminatory issue. I would welcome any input.

Thanks so much for the great input! I don't know if we have the name or number of the concerned caller but I'll find out and go from there!

Plan participant passed away a few weeks ago. Wife, listed as sole beneficiary, has reached out to find out what do to. We let her know we need a death certificate along with her identification and then we can discuss her options. Today, we received a "concerned phone call" stating that the wife was a conservatee with her husband as conservator. The caller also indicated that they are trying to get the conservatorship changed to a living family member. Absent any court documents to the contrary, I am inclined to treat this like any other death distribution and pay out as the wife wishes. It seems to me that if he had a conservatorship for her, he would also have made arrangements as how to protect her after his death. Does anyone see any liability or issue in proceeding with the distribution assuming that the wife has all documents in order? Thanks in advance!

Is it possible that they plan ahead for this? meaning that they calculate the benefits for the whole year but then divide them by the school year paychecks only, leaving the "summer paychecks" to have no benefits withheld. Not trying to confuse the issue but perhaps there is a simpler explanation.

justanotheradmin: Here is a bit more ammo for your argument: 1. prohibited transactions can happen pretty easily with unregistered investments unless everyone has a really good handle on what they are doing (and they usually do not); 2. unregistered investments must have 100% ERISA bond coverage, not the 10% required with registered investments; 3. some LLC's can trigger UBIT (unrelated business income tax) in which case taxes are filed under the plan name but the investment owner(s) generally are held responsible for the taxes 4. illiquid investments like LLC's can cause issues down the road if there are not enough liquid assets for fees and RMD's

I agree with the above commenters but would add that we use prime + 1 with a minimum of 6%. Thought process being that the participant should be able to recoup to him/herself approximately what he/she might have earned in the market. Actually had an regulatory agency comment once that low rates could be seen as detrimental to the participant.

Thanks for the confirm, austin3515. That was the conclusion that I arrived at.

If anyone answered SHERPA's second question, I missed it. I cannot find anything in what I have read and heard so far that prohibits a participant with an adequate balance from taking both the $100,000 loan and a $100,000 distribution, with the distribution being either from an IRA or a QRP. This is of course assuming that the Plan Sponsor adopted both provisions.

What a sticky situation. I would think it's up to the employer to prove fraud per their Employee Handbook and/or business ethics policy, especially since they fired the employee for the act. To me this feels more like an HR situation and less like an ERISA/plan situation. "this" being the determination of fraud.

Great, thank you all for your excellent input. Have a great weekend!

Have a "splitting hairs" question. Plan document reads: (6) Return to employment. A Participant may not receive a distribution based on Separation from Service, or continue any Installment distribution based on a prior Separation from Service, if, prior to the time the Trustee actually makes the distribution, the Participant returns to employment with the Employer. At issue is the meaning of the phrase "Participant returns to employment" in the last sentence. I contend that the employee has returned on the date he or she begins working. I base this on the fact that his/her re-hire date is the date he/she begins working, not the date called. Another party interprets that the employee has "returned to employment" if he or she has been notified they are being called back to work. A distribution was in process to the terminated employee. Before the funds were paid out, both parties were notified that the employee had been re-hired with an effective date three weeks in the future. I contend we should not stop the distribution. The more conservative party (who by the way is very highly regarded and I have the utmost respect for) states that because we know he will be rehired, he has "returned to employment" and we should stop the distribution. I've made my decision but am curious to run this by other experts out there. Thanks much!