Elizabeth G

I agree with the tenor of the comments, particularly the appropriateness of humility and value of professional advice. Note that the definition of "nonresident alien" is technical. For example, a US citizen employed in Paris is not a nonresident alien. Similarly, the term "US income" is technically defined.

Have a look at Treasury Regulation 1.401(k)-1(a)(3)(v). A one-time election upon initial eligibility is not considered a cash or deferred arrangement subject to the IRC 401(k) rules. An employer that's not subject to ERISA (for instance, a governmental agency) is not obligated to deliver an SPD, but frequently a similar document is available.

Others have provided you with case law that supports your position. If the judge fails to honor MD law, your remedy might be to take an appeal. Since the ex-spouse is being recalcitrant, you might consider a motion to compel the ex-spouse to sign the QDRO. Both of these approaches seem more about MD civil law and procedure -- not seeing that benefits practitioners are qualified to help with that.

The comments seem to be homing in on the issue -- it may not be discrimination per se, but rather, fiduciary responsibility. In the Q&A, both plans have the same trustee. For the one of the plans, the sole participant is also the trustee. Regardless of how poorly the investments that that trustee selects actually perform, I expect we can agree that a lawsuit against the trustee is unlikely. In contrast, the participants in the other plan are entitled to hold the trustee as the fiduciary responsible for whatever the investment performance turns out to be. After all, those participants were not offered the opportunity (per ERISA 404(c)) to select investments. If the recommendation for "a platform for the employee plan" = using ERISA 404(c), I agree that is a sensible approach. Otherwise, the dentists should be prepared to defend the competency of the decisions made regarding investment of their employees' accounts. (Perhaps taking a pass on the bitcoin futures offering?)

I agree that Form w-7 is the way to obtain a US TIN. While it may not be applicable here, it seems useful to mention the type of situation where a plan can process a distribution for a claimant that lacks a US TIN. If the claimant submits a completed Form W-8BEN listing his/her permanent foreign address and my firm and our client have no reason to suspect that form is inaccurate, a distribution will be processed. Default withholding is at 30%, unless the claimant has specifically identified benefits under a tax treaty.

My understanding is that the document vendors (e.g., Relius, ftwilliam) will not contract directly with a plan sponsor. They contract with retirement professionals who then provide document services to their plan sponsor clients. I'm not sure exactly how the vendors define a "retirement professional," but it's not exclusively attorneys. I would describe their business model as being a "wholesaler" to the "retailer" retirement community. Under this model, the vendors' clients are exclusively those who understand how to use the docs they license. In turn, the "retailers" get to contract with (and manage docs for) plan sponsor clients (and bear the risks that habits like speed reading could present....).

The attorney might explore obtaining an EIN for his plan trust, for example, "401(k) plan trust for [his d/b/a]." I can't say I've done it - my practice does not extend to plans for sole props. But it seems that might do the trick.

Does the record keeper credit the amount of the "negative" fee against the fees due for the following year? The concern I see with reporting a negative number is that it suggests that the record keeper is getting paid more that it is obliged to be paid for the year. That would raise an issue about whether the fees being paid are appropriate (at least as reflected in that Form 5500). Perhaps the information provided to the sponsor and auditor otherwise makes clear that record keeper is being paid only what it is due? Regarding the $5k reporting threshold, I believe that applies to the total direct and indirect. So a negative number wouldn't necessarily mean that reporting is not required.

If the plan is not subject to ERISA, then there would be no ERISA preemption of state law. It sounds like you are dealing with whatever the relevant plan terms say in light of what state law requires. Has the client's counsel been consulted?

You might find this analysis helpful.... https://www.truckerhuss.com/2006/03/dol-provides-new-guidance-regarding-ira-investments-and-the-prohibited-transaction-rules-erisa-opinion-letter-2006-01a/