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Peter, 2 points for you to consider. First, see Section 601 of the SECURE Act. It provides an extended date to adopt amendments, and you'll see references to ERISA in that section. So I think the plan can be operated using 72 prior to the amendment deadline without violating the failure to follow the plan terms. Second, the EE communication is vague. Technically under ERISA it's 210 days after the amendment is "adopted," and the Code doesn't have any specific communication deadline (but the 401(a) regs do require that a plan be communicated to participants).

Just to clarify, what gets confusing is that for 403(b) plans, it’s as though the individual is the employer. That’s where the related employer issue pointed above becomes relevant. For example, a Dr. who is in a hospital’s 403(b) and 401(a) plan can double up. If the Dr is in the hospital’s 403(b) and also in a 401(a) plan sponsored by a clinic that he or she controls, then it’s one 415 limit. For 401(a) plans, it’s one limit when there are multiple plans if the plan sponsors are related - controlled group or affiliated service group. There are separate limits if they are unrelated. Again, what’s unique about 403(b)s is that the individual, not the employer, is deemed to be the plan sponsor. That’s why you have to see what other plans are being sponsored by entities that are related to the individual, whereas for 401(a) plans, aggregation is based on employers that are related. If an individual is in two different 403(b) plans there is aggregation because there’s one sponsor - the individual.

This is the Rev. Proc. that lists the time-sensitive actions that are extended (the 5500 is one of them): https://www.irs.gov/pub/irs-drop/rp-18-58.pdf

Agreed. The 4/1/22 RMD is based on the old tables and the next one due by 12/31/22 is based on the new tables because it’s for the 2022 distribution calendar year.

As John pointed out, it’s an effective opportunity issue. The provision is not effectively available to employees if they aren’t aware of it.

The answer to your question is yes. The 401(a) plan could be designed to be an ACP test safe harbor plan.

As pointed out, restatements are never required for qualification. But, IRS pre-proved plans must be restated every 6 years if you want reliance on the IRS approval letter. Individually designed plans used to be on a 5 year restatement cycle. But that was eliminated years ago when the IRS cut back the determination letter program. So, I think restating an IDP is now very risky. If you received an initial DL on the plan, then you’d only want to adopt tack-on amendments. If you restate the plan, then you can’t get a new DL and you therefore risk losing reliance on those provisions that had been previously approved and that were not affected by the tack-on amendments.

The following is from an 8th circuit decision and a link to the full case is below. While the underlined sentence isn't directly on point to your issue because it wasn't addressing whether there was a breach of fiduciary duty, it does point out the "receipt vs. acceptance" distinction. The plan only required "receipt" and thus a beneficiary designation might be given effect even though it wasn't completed in its entirety. Here they did review it upon receipt and asked for more information, but they didn't state that the designation was invalid without the additional information. No telling what would have happened if the plan required "acceptance." Presumably it would mean that a review of the designation must be performed once it has been received (rather than waiting until death) and I could see an argument that there's a fiduciary duty to do let a participant know if the designation has any defects. Next, Alliant's interpretation is consistent with the Plan's clear language. The Plan provides that beneficiary designations are effective when executed by the participant and received by the Plan, so long as the Plan receives the designation within the participant's lifetime. The Administrator's determination to give effect to James's 2002 designation is consistent with these requirements. Similarly, the Summary Plan Description instructs participants that they can change their beneficiaries "by completing a new Beneficiary Designation Form and sending it to" Fidelity. The only requirement that the Summary Plan Description notes is that "for a Beneficiary Designation Form to be effective, [Fidelity] must receive it while you are still living." Giving effect to the form does not contradict the Plan's plain language, which requires only that the form be "received," not accepted. Consistent with these terms, when Fidelity returned the form to James with instructions to provide the missing relationship information, its letter did not indicate that his beneficiary designation was invalid; the "NIGO" (not in good order) notation is in a small box marked "Internal Use Only." See Harpole v. Entergy Ark., Inc., 197 F.Supp.2d 1152, 1158 (E.D.Ark.2002) (finding the administrator's decision to enforce a beneficiary designation with the beneficiary's social security number missing was "perfectly prudent and reasonable" and not contrary to plan's clear language where notification to participant did not indicate that the form was "completely ineffective until the data was received" and plan documents did not require the beneficiary's social security number). https://casetext.com/case/alliant-techsystems-inc-v-marks#4c2882df-7449-4515-a2b2-8d6740556102-fn2

I agree that it doesn't need to be in the SPD if it's no longer applicable. But, those are DOL rules. Treas. Reg. 1.401-1(a)(2) includes in the definition of a qualified pension, profit sharing, etc. plan that it's a written program "which is communicated to the employees.." The IRS hasn't provided detailed rules on the communication requirement (other than in limited situations, such as SH plans). But, as pointed out, if you don't communicate this type of provision, you'd have an effective opportunity problem that could violate the nondiscrimination requirements of 401(a)(4) if you don''t communicate it to the NHCEs once it's available.

Peter Could that last item you raised - the power to collect the fee - result in the TPA becoming a 3(21) fiduciary?

Be careful. The rules differ for an unpaid leave vs paid leave. For an unpaid leave you only get the hours to prevent a break. For a paid leave you get up to 501 hours for the non-performance of duties. But that gets added to your actual hours and can put you over 1000 hours. In other words, the paid leave is not just to prevent a break-in-service.

You may also want to look at 1.401(a)(4)-11(g). You may outside of the 9 1/2 month correction period, but it has rules for correction by amendment for failure to satisfy benefits, rights or features. You can’t retroactively change what happened so the correction is a prospective amendment.

It might not be a loan policy issue. If the plan only allows lump sum distributions, then you distribute the entire account. That means the note is offset. Not because a payment was due - rather because she effectively received a distribution of the note (which extinguishes the note). If she is allowed to take a partial distribution then the note can stay in the plan. And then the plan could extend the due date for the covered repayments. We don’t know if the plan must offer her the ability to extend the repayments as that part of the law isn’t clear.

Seems like there are 2 aspects of this that are being combined. First, does the plan permit a distributable event? In your situation, the answer is no. Then you go to the second part - does the plan want to treat the distribution being made (which is being made for other reasons), as a CRD? I assume the answer is also no, but these are two different decisions for a plan sponsor to make. If the plan treats it as a CRD, then it's subject to 10% voluntary withholding. If the plan doesn't treat it as a CRD, then it's subject to 20% withholding. The plan has this choice per Notice 2005-92 (and there's no reason to believe the IRS would reach a different interpretation of the exact same language that was used in KETRA). C. Treatment of distributions as Katrina distributions. An employer is permitted to choose whether to treat distributions under its plans as Katrina distributions. Further, the employer (or plan administrator) is permitted to develop any reasonable procedures for identifying which distributions are treated as Katrina distributions under its retirement plans. However, if an employer retirement plan treats any distribution of an amount subject to § 401(k)(2)(B)(i), 403(b)(7)(A)(ii), 403(b)(11) or 457(d)(1)(A) as a Katrina distribution, the plan must be consistent in its treatment. Thus, the amount of the distribution must be taken into account in determining the $100,000 limit on Katrina distribution payments made under the retirement plans maintained by the employer.

Yes as long as the person is a qualified individual

A request has been made to extend the deadline for a year. Needless to say, their plates are full with countless critical issues that need to be addressed. But It would be shocking if they didn’t provide relief.

You may want to see this thread. It’s OK to add a EACA mid-year as long as it’s limited to new participants. But you can’t use the 6 month corrective distribution provision.

You may find this to be helpful. It’s part of the definition of Uniform Normal Retirement Age from the definition section of the 401(a)(4) regs. 1.401(a)(4)-12. (4) Conversion of normal retirement age to normal retirement date. A group of employees does not fail to have a uniform normal retirement age merely because a defined benefit plan provides for the commencement of normal retirement benefits on different retirement dates for different employees if each employee's normal retirement date is determined on a reasonable basis with reference to an otherwise uniform normal retirement age and the difference between the normal retirement date and the uniform normal retirement age cannot exceed six months for any employee. Thus, for example, benefits under a plan do not fail to commence at a uniform normal retirement age of age 62 for purposes of § 1.401(a)(4)-3(b)(2)(i), merely because the plan's normal retirement date is defined as the last day of the plan yearnearest attainment of age 62.

I’ll take a stab at this. They didn’t repeal the rule on death after the RBD - they just added a new condition that it be paid out within 10 years. So it looks to me like the RMD is still due by 12/31 and if not paid, then it’s subject to the excise tax. I don’t think it reverts to something else.

Just to elaborate on this for 415 compensation (used for 415 limits and TH) you must aggregate compensation from all "employers," which in this case is all members of the CG. For 414(s) comp (used for nondiscrimination tests, which includes the denominator of the ADP/ACP tests, and as pointed out, only matters if someone is getting comp from both companies), you must use 414(s) compensation. 414(s) comp starts with 415 comp and you can make certain adjustments, some are deemed to be nondiscriminatory and others must be tested. Excluding comp from an employer that is part of the CG, regardless of whether that ER adopted the plan, is not a safe harbor adjustment. Therefore, if you exclude the comp for the nonparticipating ER, then it's subject to annual 414(s) testing. This is generally operational in all plans - pre-approved plans aren't required to define 414(s) compensation. Last is compensation used to actually determine benefits. This must be defined in the plan. If you exclude comp from the nonparticipating member of the CG, then you can't have a designed based safe harbor allocation or benefit formula (because it's not a safe harbor method when comp doesn't automatically satisfy 414(s)). But as a practical matter, if you test the comp and it passes 414(s) then no problem. If you fail 414(s) then your benefit or allocation formula would be subject to general testing (and you'd have to use 414(s) in that testing).

FWIW, here's my take on it. The SECURE Act (Section 403(b)(1)) increased the penalties under IRC 6652(d). IRC 6652(d) are the penalties for failure to file pursuant to the requirements of IRC 6057(a) and 6057(b). 6057(a) is reported using Form 8955-SSA. 6057(b) is the requirement to notify a change in status for those who were required to file the 8955-SSA. The reporting is only required when there has been: A change in the name of the plan, a change in the name or address of the PA, or, a termination/merger. So the question is what form do you use to satisfy the reporting requirement of 6057(b)? Is it Form 8955-SSA, 8822-B, or 5500? Also, what must be reported under 6057(b)? A change in the name of the plan, a change in the name or address of the PA, and terminations/mergers. The instructions to the 8955-SSA provide: Reporting requirement. Under section 6057(b), plan administrators must notify the Secretary of the Treasury of certain changes to the plan and the plan administrator. These changes are reported on the plan’s Form 5500 return/report. Plan administrators should report these changes on the Form 5500 return/report for the plan year in which the change occurs as indicated in the Form 5500 instructions. The Form 5500 instructions at Question 2a, which is plan sponsor information, provides: Note. Use the IRS Form 8822-B, Change of Address – Business, to notify the IRS if the address provided here is a change in your business mailing address or your business location. One interpretation: The legal filing is handled through the 5500 (and this would be the basis for any penalties). The note on the 5500 only applies to changes in the employer's information. A change in the plan sponsor's address is not required to be reported under 6057(b) (it only requires notification if the plan name or the name/address of the PA have changed). Granted, in most cases the ER is the PA. The 5500 includes a way to indicate there has been a change to the plan name or name/EIN of the employer. It doesn't have a way to indicate if the administrator info changed (you put the current info on the form, but there's no box to select pointing out that this info differs from the prior year's 5500). Alternative interpretation: The 8822-B is mandatory. I can see an argument that it's mandatory for a change in the employer's address. But since that's not required to be reported pursuant to 6057(b), then the penalty doesn't apply if you fail to file. This would explain why the current 8822-B states there are no penalties. Again, SECURE didn't change who is or is not subject to a penalty. It just changed the amount. I'm only looking at the penalty provisions. I'm not suggesting you don't file the Form 8822-B for other reasons (such as ensuring the IRS sends notices to the current contact/address). If the IRS tries to assess penalties, then maybe the above pointing out how vague it is could be used as reasonable cause for getting the penalty waived. ?

As Luke pointed out, there is no requirement that a plan have a determination letter or reliance on a pre-approved plan. If it's a leveraged ESOP, then the lendor might require IRS approval. Regardless, it's standard practice to get IRS approval. Also note that there are no pre-approved ESOPs yet. Those were only recently allowed - submisstions were made by 12/31/18 and we don't know how long it will take for the IRS to approve them. Best guess is in 2020 based on some informal comments from the IRS.

jpod is correct. You must provide the participant with a 402(f) notice. If the participant makes no election for a direct rollover, then you can either make a distribution (and withhold 20%) or the plan can do a direct rollover to an IRA. It depends on the plan terms - and if the plan is silent, then it's a procedural issue as to which way to go. Many find that cutting the check is a problem because you can't force someone to cash a check.

If you never received a determination letter on the plan, I'd suggest using a retroactive effective date because you have no reliance on the prior terms. I agree with the current effective date approach when you are restating a plan that already has reliance (either a determination letter or reliance on pre-approved plan).

Just one point of clarification on this. They can still sponsor a MEP under IRC 413(c). But for ERISA purposes it won't be treated as a single plan (e.g., separate 5500s would be required).