C. B. Zeller

What does "somewhat" related mean? Are all four businesses owned 100% by the same person? Then they are all part of the same controlled group. Did all four businesses in the controlled group adopt the same plan? If there are no other adopting employers outside the controlled group, it is a single employer plan.

Hello, welcome to the boards! Please do not consider this site an authority on anything. This is an informal discussion board for industry professionals. Answers you find on here might just as easily be wrong as correct. Even if you do find a correct answer, there could be subtleties or complexities to the answer which might not be apparent to you that would make the answer inapplicable in your situation. Nothing on this board should be relied upon without real, professional advice from an industry expert. I urge you to find a local TPA who can answer these questions for you. With that out of the way: In general, a plan does not have to cover employees who have not attained age 21 or worked 1000 hours in any year. For 401(k) plans, that is changing soon, as the SECURE Act added a rule requiring 401(k) plans to cover employees who worked at least 500 hours for 3 years. They aren't counting years before 2021, so these so-called Long-Term Part-Time employees will become eligible starting in 2024 (barring any further changes to the law). An employee who has met the plan's eligibility requirements is considered to be covered by the plan, even if they do not have a balance. A former employee with a balance is also considered to be covered, until they take a distribution (including an involuntary distribution). Plans which cover employees other than the 100% owner and their spouse, or partners in a partnership and their spouses, are covered by Title I of ERISA and must file Form 5500-SF (or the full Form 5500 in some cases). Plans which cover only the 100% owner and their spouse, or partners in a partnership and their spouses, must file Form 5500-EZ unless they are exempt from filing. Solely for purposes of determining whether a plan must file Form 5500-EZ, a 2% shareholder of an S-corporation, including attribution of ownership, is considered a partner in a partnership.

Would you file a 5330 in that case? Or file it with $0 due? It doesn't seem right that the sponsor should avoid the excise tax merely because the plan had a loss. Would it be reasonable to use the DOL calculator rates to calculate the excise tax, but use the actual rate of return (not less than zero) for purposes of making up the loss to the plan? edit: cathyw, you posted at almost the same time I did, and I think we are coming to the same conclusion based on the sources. It does seem like it might be a reasonable approach, but I am not aware of any practitioners currently doing it that way.

By doing at least the amount calculated by the DOL calculator, you could still file VFCP if you decide you want to. I would have a hard time giving the participants less than was actually withheld from their paychecks, even if the plan had a loss.

VCP

A plain reading of 4975(f)(5) supports that you would use the actual rate of return: If the earnings determined by the DOL calculator are less that the plan would have earned had the contributions been deposited timely, then that would put the plan in a worse financial situation, and therefore the PT would not be corrected. However, I'm also aware of Rev. Rul. 2006-38 which notes: So I think you could argue it either way. Personally, I will usually calculate it both ways and use the larger one.

I have no doubt that the ability of plan sponsors to foul up their plans in new and innovative ways will continue keep us all busy for the foreseeable future.

Not helpful at this point, but perhaps interesting, the Securing a Strong Retirement Act that was introduced in the House a few months ago would add another subparagraph to 401(b) that allows retroactive amendments up until the plan sponsor's tax deadline. The SSRA includes lots of other goodies that testing nerds like us will love, including allowing otherwise excludable employees to be disaggregated for top heavy, getting rid of the rule that creates controlled groups when there is a child under age 21, and allowing sole proprietors to make retroactive deferral elections when there are no other employees in the plan. No way of knowing if this bill will actually go anywhere, but it at least shows that Congress is aware of these issues.

Prior discussion, which leaned towards the conclusion that adoption of a participating employer agreement is an amendment, not a plan adoption: The safest way to approach it might be to have B adopt a new plan, permissively aggregate the two plans for testing, then merge them into a single plan later on.

Logically yes, but legally, no. If memory serves me right one of the bills currently floating around Congress has a provision intended to fix this and allow retroactive amendments.

It seems like it should be possible, as long as you know the dollar amount of the husband's accrued benefit (AB) and social security (SS). I am speaking about this from a purely theoretical standpoint as I have never actually encountered this situation. I think you could do it either as separate interest or shared payment. Set it up so that the husband's benefit (before the social security supplement) is equal to (AB - SS) / 2, and the wife's is (AB + SS) / 2. Putting some numbers on it, let's say the AB is $5,000 and the SS payment is $1,500. Without the QDRO, payments would be $6,500 prior to SSRA and $5,000 after SSRA. With the QDRO, payments to the husband will be (5000 - 1500)/2 + 1500(for the SS supplement) = 3250 prior to SSRA and 1750 after SSRA. Payments to the wife will be (5000 + 1500)/2 = 3250 both before and after the husband's SSRA.

I am speaking well outside my area of expertise here, but I believe immigration status and national origin are protected statuses for things like employment benefits. You may want to consult with an attorney before you exclude somebody from your plan merely because they are not a resident alien.

E will no longer be part of the same controlled group after the sale. Based on your description it is possible that a management function ASG might still exist, which would have the same effect as being a controlled group for most purposes. If there is no ASG, and if no participation agreements are revoked, the plan will become a MEP on 8/1 since there would be more than one unrelated employer participating in the same plan. That may or may not be what they wanted.

Honestly this is an employee relations issue and not a plan issue. There is nothing in ERISA that says a report to the plan committee has to be disclosed to participants. The plan administrator would be completely within their rights to tell this guy to take a hike. The employer, of course, is going to want to weigh their options. Is there anything in the report that is sensitive and could harm the sponsor if it became public knowledge? Is this guy likely to bring an action against the sponsor if they don't give him what he wants, or is he just full of hot air?

A penalty of up to $2,233 a day for each day a plan administrator fails or refuses to file a complete and accurate report. See ERISA section 502(c)(2), 29 CFR 2560.502c-2, and the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Inflation Adjustment Act). Pub. L. No. 114-74; 129 Stat. 599 and the DOL’s implementing regulation at 85 FR 2292 (Jan. 15, 2020). $750, if it is a small plan. The "hoops" are just submitting your info on the DOL's website and then paying the fee on pay.gov. For those of us subject to Circular 230, we would risk our own professional livelihoods by encouraging a sponsor to report false information to the government. Other professional organizations also require their members to adhere to certain codes of professional conduct, and individuals violating those codes could be sanctioned or expelled. Not that it would change my analysis, but our firm charges the same fee to prepare a timely 5500 that we do for a late one. The $750 goes to the government, not to us.

Here are the highlights of the new rev proc:

There due date of the 5500 is automatically extended to the sponsor's tax filing deadline, as long as the sponsor's tax year is the same as the plan year. If you adopt a plan on September 14, that leaves you 1 day to get your minimum funding done and prepare and file your 5500. Another possibility is that you just add $750 for a DFVCP filing to your plan setup costs.

From the 5500 instructions (emphasis added): I understand the reference to "manual" signature to mean that is must be signed by the person's own hand. If they want to sign electronically, the only acceptable option is for them to obtain EFAST credentials. For what it's worth, most of our clients obtain their own EFAST credentials and sign their own forms. It is a bit of pain the first year but after that they usually don't have any problems.

It's in VFCP. The plan document probably also has some language about timing of deposits, so you can rely on the general principles of EPCRS to put the plan back in the same situation it would have been had the failure not occurred. Forfeitures can be used to reduce contributions, or allocated as an additional contribution. However lost earnings are not a contribution. I say you can't use forfeitures to fund lost earnings.

What correction method are you referring to? Late deposits are usually just corrected by making the deposit with lost earnings. It is not a QNEC. EPCRS does provide for corrections with QNECS for improper exclusion from a 401(k) plan, or failure to implement a deferral election. Regardless, if the plan adopted the changes made by the 2018 amendments to the regulations, then forfeitures can be used to fund QNECs. See https://www.irs.gov/retirement-plans/issue-snapshot-plan-forfeitures-used-for-qualified-nonelective-and-qualified-matching-contributions

I've used Google Docs for collaborative editing before, and it's quite good at it, but it does need to be set up correctly to get the most benefit out of it. My number 1 recommendation when using Google Docs is to assign only a small number of people to the "Editor" role - just 1 or 2. Most people should be "Commenter." Changes made by Commenters do not directly modify the original document, but show up in a different color. The Editor(s) can then approve or reject the suggestions. Suggestions made by Commenters also show up on the side, and you can have a discussion thread attached to each one. There is also a chat box assigned to the document as a whole, for things that do not fit into a comment discussion thread.

They're available now. https://www.law.cornell.edu/cfr/text/26/1.401(a)(9)-9

In the case where actual returns are less than the returns calculated by the VFCP calculator (or negative), I usually use the greater of the two. (Is the plan trustee-directed or participant-directed? If trustee-directed, do they have an IPS? Does the IPS say they will invest 100% in money markets? That doesn't pass the sniff test for prudence, or diversification, in my opinion.)

But they invested their contributions in a vehicle of some sort, right? If they had made the deposit timely, what would the earnings have been?

The plan must permit a reversion according to its terms. No money has to actually go back to the sponsor though. While you could read IRC 4980 to mean that exactly 25% of the excess (and no more) can be transferred to the QRP, every actuary I know understands it to mean at least 25% of the excess, up to and including 100%.