Paul I

Given the additional facts, the full vesting of participant accounts due to a discontinuance of contributions does not alter the plan's vesting schedule for future profit sharing contributions if there is a separate accounting for the resumed contributions. The prior contributions that became fully vested must remain fully vested. If any new contributions are credited into that account, then the account with the commingled contributions are fully vested. If a participant does not have prior contributions that became fully vested, then the plan is not obligated to fully vest new contribution for that participant.

@david rigby is correct to begin by saying it is ambiguous. A participant's vesting percentage is based on the rules in the plan document. If the plan document was amended to specify that all employees with an account balance on a specific date are 100% vested, and the preexisting rules at the time of the amendment remain in place for all other employees. Under the preexisting rules, all participants would still accrue vesting service regardless of whether they did or did not receive a contribution., and if and when a participant is given an employer contribution, the participant's accumulated vesting service determines the participant's vested percentage. If the plan previously was not amended, then review any documentation like committee decisions or ongoing communications to participants that would support the full vesting being applicable as of a specific time. You may want to seek the opinion of the plan legal counsel if the documentation is sufficient to then memorialize the decision in a current plan amendment. Carefully read the language of the plan document to determine the vesting rules currently in place. If the language does not align with the company's expectations, then amend the plan with clear language while taking care not to reduce anyone's vesting under the current provisions. One concept that can trip up plan sponsors is that a plan's eligibility service, vesting service, and service-related allocation conditions can each have their own set of rules, and a calculation of a participant's service at any specific point in time yield a different result for purposes of eligibility, vesting or allocation.

The details in the 5500 instructions about beginning of year counts can make for a more lively debate in the office: There are three lines on the 5500 that ask for a count at the beginning of the plan year: Line 5 Total number of participants at the beginning of the plan year Line 6a(1) Total number of active participants at the beginning of the plan year Line 6g(1) Number of participants with account balances as of the beginning of the plan year (only defined contribution plans complete this item) There are some wrinkles. Alternate payees entitled to benefits under a QDRO are not counted. For Line 5, include active participants, retired or separated participants who are receiving benefits, other retired or separated participants entitled to future benefits, and deceased individuals who have one or more beneficiaries who are receiving benefits or are entitled to receive benefits (e.g., a deceased individual counts as 1 even though there may be 2 or more beneficiaries receiving benefits.) For Line 6a(1), include only participants are active (currently employed and have or are entitled to have a benefit . For Line 6g(1), include only participants who are in a defined contribution plan, who are counted for purposes of Line 5, and who have an account balance on the beginning of the plan year. None of these reference a prior year count. That being said, Line 6g(1) will almost always equal the prior year's Line 6g(2) - end of year count of participants with balances.

This situation is not uncommon when a plan termination is effective with little or no advanced notice, and as @Bri comments, there are transactions related to the termination that will take time to be processed properly. Consider, for example, that a lot of activity may occur after the official plan termination date such as: contributions due to the plan may be deposited after the plan termination, distributions require giving a participant 30-day notice to decide on a rollover (unless the participant waives the notice period). there may be missing or lost participants that need to be found to be able to close out the plan, and, in this case if the plan document permits, participants with loans may wish to pay off the loan. Keep in mind that a terminated plan will continue to have responsibilities until the assets go to zero.

I, too, agree with the information provided to you by our BenefitsLink colleagues. I will add a word of caution. If the client does not know the answer to the question about whether the sale is an asset sale or a stock sale, then you should encourage the client to find out asap. If the attorneys on the buyer's and seller's side of the transaction have not provided information about the type of sale, whether the seller will continue to exist after closing, whether the seller's plan will continue to exist after closing, and other similar information needed for the seller's plan to chart its path forward, then point out to the client that they need a clear road map of steps to take regarding the termination or possibly the continuation of the their plan. All too often, sellers, buyers, and M&A attorneys focus on the closing without regard to the decisions and details needed to have an orderly transition of the plan. This lack of planning can trigger unintended consequences for the buyer, the seller and the seller's employees that could require expensive remedial actions and override any goodwill that may have existed among the parties involved. An ounce of prevention...

I am not aware of a formally stated "order of compliance", but practically speaking there is an order of compliance to make sure that the correction for each individual is accurate. The correction of a 415 excess after-tax contribution is an EPCRS 5.01(3)(a) excess amount and is corrected by issuing a refund to the participant who made the excess contribution. This refund is not included as a contribution in performing the ACP test. There is a two step process for correcting ADP/ACP test failures. The first step is to determine how much needs to be removed from HCE accounts based on the reductions in contributions in descending order of the average ADP or ACP percentages. The second step is to remove the dollar amount of these reductions in descending order of the dollar amount of contributions made by each HCE. The effect is an HCE who contributes a higher than average dollar amount but has a low ADP or ACP percentage because the HCE has a high compensation has the refund taken from their account even though they did not have a high ADP or ACP percentage. If this HCE happened to be a participant who exceeded the 415 limit, the ADP/ACP refund should not reduce the amount of their 415 excess.

Back to the original question, any match formula that is based on any deferrals in excess of 6% is not a safe harbor formula and is subject to ACP testing. A formula that does match deferrals greater than 6% likely is also subject to coverage testing and BRF testing to confirm that the match on the deferrals greater than 6% do not discriminate.

The IRS is proposing a 5-step rollover process that goes back and forth between a Receiving Plan and a Distributing Plan. The process proposes four Forms that pass between providers to document the rollover. Here is the header for Form 3 Form 3: Distributing Plan’s Rollover Certification On behalf of the plan participant or IRA owner named below (Participant), the plan or IRA named below (Distributing Plan) has received a request from the plan or IRA named below (Receiving Plan) to roll over amounts held in the Distributing Plan, as requested by the Participant. This form confirms that the Distributing Plan is tax-qualified and that the amounts are eligible for rollover, using a rollover method selected below. The last sentence - and elsewhere on the form - the Distributing Plan is certifying that the plan is tax-qualified. There are some plans that already balk at providing a certification that the plan is tax-qualified because they don't know what they don't know about possible failures which could disqualify the plan. While the vast majority of plans are tax-qualified, there are instances where a plan is not due to operational, compliance or document issues. In most of these cases, the plan continues to be tax-qualified as the plan takes remedial actions. Frankly, money talks. I have never encountered a situation where a receiving plan refuses to accept a rollover from another plan because the distributing plan refuses to certify the plan was tax-qualified. I think it is worth pointing out in any comments sent to the IRS about the process that a representation that the plan is intended to be qualified should suffice, or possibly with an added caveat that there are remedial actions being taken to continue the plan's tax-qualified status.

You guess correctly that the IRS does not approve or issue opinion letters for interim amendments. Generally, a mass submitter submits their plan (Adoption Agreement and Basic Plan Document) for each restatement cycle to the IRS for IRS approval. Once approved, the mass submitter submits to the IRS a list of plan providers who will use the mass submitter's document. The IRS then issues an opinion letter for the plan provider (with a Letter Serial Number that is now reported on the 5500 series). The plan provider can then have their client adopt the plan. The plan provider is required to give to each employer who adopts the plan: A copy of the plan provider's IRS letter. A copy of the IRS approved plan documents. Copies of any subsequent amendments including the date the amendments are adopted. Contact information for the plan provider. Further, the IRS says an employer who adopts the plan may not rely on this letter when the plan is not identical to the pre-approved plan (that is, the employer made amendments that cause the plan not to be considered identical to the pre-approved plan) [this language is from the IRS opinion letter noted above]. In response to IRS LRMs, mass providers prepare amendments to their documents. Some amendments are intended to be adopted by all users of the mass provider's clients. Other amendments may add or subtract choices that a plan provider may choose for its clients, or choices that an employer may choose. None of these amendments are reviewed and approved by the IRS. If a plan provider or employer do not adopt these interim amendments, or the language of the interim amendments is modified, then the IRS considers the plan to no longer be a pre-approved plan. The plan can be submitted to the IRS for approval as an individually designed plan.

The proposed process has 5 steps and involves 4 "forms" (read exchanges of information between the distributing plan and the receiving plan). The process also encourages an electronic transfer of funds and disallows sending a rollover check directly to the participant to forward to the receiving plan. I agree with @Bri that the process likely will flow relatively smoothly for common plan designs on larger recordkeeping platforms. The first step of the process is for the participant to notify the receiving plan on the intent to make a rollover. This first step is an exchange of information between the participant who often has incomplete knowledge of about the provisions in their plan, and the receiving plan who has no knowledge about the distributing plan's provisions. Let's just say incorrect assumptions likely will be made about the features and administrative procedures of the distributing plan. @Bri's observation about the valuation frequency certainly is an issue. Here are some examples of a few more potential issues: The distributing plan has a graded vesting schedule and uses an hours rule for crediting vesting service. Hours worked in the vesting computation period will need to be collected from the plan sponsor. The distributing plan has a match or nonelective employer contribution without a last day allocation requirement (or waives it for retirement, death or disability) and the participant is eligible for an NEC which will not be made until after year end. The distributing plan has employer stock which is not publicly traded or other assets which valued less frequently than daily, and the valuation of these assets is not available daily. The individual who notifies the receiving plan about a rollover may assume they are a beneficiary or alternate payee entitled to a benefit when, in fact, they are not based on the terms of beneficiary elections or a QDRO. The participant who notifies the receiving plan has an outstanding loan and has not provided information to the distributing plan about whether the participant intends to payoff the loan prior to the distribution being paid (so it can be included in the rollover), or intends to let the loan default. The distributing plan may allow for in-kind distributions which will require much more coordination with the receiving plan than is contemplated in the proposed process. The participant is an HCE who tends routinely tends to receive refunds because the plan fails nondiscrimination testing. I expect our BenefitsLink neighbors easily can add many more examples a lack of familiarity with the operation of the distributing plan (both by the participant and the receiving plan) can cause chaos.

My understanding is any compensation paid by the employer to an employee who is or was on active duty for more than 30 days (e.g., differential pay or a continuation of the compensation) is considered in making the determination of the employee's status as an HCE, but the employer can elect to exclude this pay from the definition of Plan Compensation for purposes of determining contributions. This is based on the elections available in the pre-approved plan adoption agreement and the associated basic plan document that we use for our clients.

Managing plan documentation of related employers is one of those tasks that too often is not done correctly. Congratulations on suggesting that the plan proverbially "dots the i's and crosses the t's". If the physicians received contributions under the plan, then there definitely is a gap in the documentation. If the physicians are not participating in the plan, then it is possible that they intentionally excluded themselves and are accumulating retirement benefits elsewhere. @Peter Gulia 's suggestion to get a lawyer's advice from the business and each of the physician's will provide needed documentation both for now and for when, in the future, a service provider sees the disconnect in the plan documentation. On a different but possibly a related topic, the arrangement sounds very much like there may be an affiliated service group. This, too, should be documented.

I agree with your comment about best practice. There is no explicit notice requirement for removing an EACA. There may be a restriction in the text of the plan document. Check any notes in the Adoption Agreement (those pesky, fine print, italicized, parenthetical comments), and check the Basic Plan Document. Remember come next year's testing cycle that removing the EACA mid-year takes away the special withdrawal and testing deadline for the entire year.

Treasury Reg Section 1.401(k)-3(e)(2) says a new salary deferral feature must be adopted no later than September 30th (for a calendar year plan). The OP say the plan was adopted in December 2025 so any deferral the owner made for 2025 must be removed from the plan, and there is no issue with missed deferrals for employees for 2025. The issue remains for the employees beginning January 1, 2026, going forward. Since the plan is within the 3-year period but beyond the 3-month, the QNEC is 25%. The plan should immediately get deferral elections from all eligible employees (including any who need to be added to pass coverage) to stop the clock ticking on the MDO.

Make sure you are communicating with individuals who are plan fiduciaries. This particularly is true for smaller plans where the owners sign the documents saying the company is the Plan Administrator, and then the owners abdicate responsibility and rely on payroll or clerical employee to run the plan. Telling the plan fiduciaries that they personally are accountable for a failure to operate the plan in compliance (including filing accurate 5500s) sometimes gets push back where they say "no one told me, so it's not my fault". In this case, definitely put an explanation of the issue in writing. If they refuse to clean up their act, resign and make it clear in the resignation letter the reasons why. Fortunately, things rarely escalate to this level of stubbornness.

There is only one set of hours rules and they are from the DOL. Most pre-approved plans do not offer explicit choices about using pay date versus pay periods versus daily tracking (with the exception of using a first few weeks rule which more often than not is a ridiculous choice). A plan administrator can decide on a policy and then apply consistently and uniformly.

@Christine Oliver Consistency is key.

The rule is fair, and also highly subjective since it addresses making judgement calls for when there is a "reason to believe" work product may be altered, and for when to take "reasonable steps to ensure the material is presented fairly and that the sources of the material are identified". Our profession often deals with highly technical and highly regulated plans, and we serve clients and other service providers who often have much less knowledge about the subject matter. The motivation sometimes for HR/payroll is to give the boss the answer they think the boss wants to hear, and the motivation for brokers/financial advisers sometimes is to give the client the answer they think the client wants to hear. If only these individuals would repeat to themselves advice from Dirty Harry that "a man has got to know his limitations." Many firms require both peer review and mandatory disclaimers for written materials produced by an engagement, and this provides the opportunity to create boundaries for the use of the material. This is more or less a protective measure for the firm. We prefer take steps to identify who is asking for information, attempt to be able to work directly with them to understand the request, and prefer to have a conversation with them to review written deliverables. This approach at times has revealed misrepresentations of our work, and in those situations we now have "reason to believe" certain individuals will misrepresent our work. In this case, we inform the client (assuming they are not the one making misrepresentations) that we will only work directly with them and why this is the case. If it is a third party who made the misrepresentations, we will no longer work with them. It is worth noting that some of the discussions on BenefitsLink appear to be fishing expeditions for support for a desired answer. While there is a standard disclaimer about the postings, I applaud all of our colleagues to make an effort to educate, document, reference and note the limitations of their postings, as well as being willing to correct or clarify any postings that may be off track.

It is fairly common to see an uptick in IRS audits after the start of the third year before the current year. In §6501. Limitations on assessment and collection, the IRS generally cannot assess taxes for closed years (more than three years ago). There are exceptions, so do not assume three years is any kind of safe harbor. Consider that in the latter part of the current calendar year, the plan files a 5500 for the prior year. The IRS then uses the 5500 information as part of its process to select plans to audit. In the following year (and based on availability of resources and focused on any strategic initiatives), the IRS begins sending notices to plans of their selection for an audit.

Since the facts about what happened are known and relatively recent, I recommend working with the client to document everything and to make sure that at least the plan accounting and reporting (5500) is correct, and preferably to issue corrected W-2. (You are correct that this should no affect the individual's tax return.) Otherwise, there may be unintended consequences that emerge after the passage of time. For example, should this participant in the future use Roth features, the participant may believe the 5 year period to make earnings on Roth accounts nontaxable started in 2025. Or, the participant (or payroll) may count up the number of loan repayments and exclude the mislabeled amounts, and then conclude that the loan was not paid in full. An ounce of prevention...

I agree with @Bri that the IRS is more likely to issue. The DOL's rationale behind their late deposit rules is the company's having control of the money withheld from participants' accounts for more than a reasonable time essentially means the company had use of those funds and could have earned income on those funds. That is a prohibited transaction and there is a tax on prohibited transactions. An unanswered question is how did the plan sponsor reconcile their payroll and checking accounts without discovering that the funds had not been withdrawn? There likely is no credible argument that the plan sponsor did not know this for more than 8 months. Neither the plan sponsor or recordkeeper is totally innocent. What is missing from the actions taken to date is a at least a Form 5330 to pay the excise tax on the late deposit and the associated lost earnings. The plan sponsor can decide if it wants to file a VFCP, but if the IRS gets involved, the 5330 penalties will compound year over year until paid.

Since the business is a medical practice, I doubt they could be considered statutory employees.

If the $35 was not deposited, then the employer still has the deferral. If funding the plan and lost earnings would result in the recordkeeper pocketing the amount funded as a payment processing fee, then the former participant still loses. The company should not keep the $35. They could consider writing a check to the former participant for the $35 plus lost earnings plus a gross up for taxes, and report it on a 1099-MISC. If the former participant did not rollover their distribution, then they are kept whole plus a little bit. If the former participant did rollover their distribution to an IRA, they may be able to make a contribution to the IRA, and they are kept whole plus a little bit more. Document the whole transaction and I cannot imagine any agent or investigator having a problem with it.

It is not an employee's choice whether or not they are a common law employee or an independent contractor, and the designation of an individual as an independent contractor is not at the total discretion of the employer. There are several tests that the IRS will consider in determining whether an individual is or in not an independent contractor. This includes things like who controls what the individual's work assignments and work schedule, how much work does the individual perform for other unrelated employers. This very likely is a situation where the individual cannot be a 1099 employee even if the individual and the employer agreed to it. One wonders if the individual has considered that as a 1099 worker, the individual will have to pay both the employee and employer payroll taxes. Since the employee and employer payroll taxes are equal, this is a pretty big hit on income. There also may be other benefits provided by the employer (including health benefits) for which the individual would no longer be eligible if the individual is no longer an employee. As far as excluding the individual as employee who is excluded from the plan, this could be done by naming the individual in the plan as excludable. The employer would not want to do this mid-year and risk breaking the safe harbor. Excluding all of the Associates would deny other employees the privilege of participating in the plan. Any exclusion by name or by category will require the excluded individuals who meet the plan's age and service requirements to be included in the 410 coverage testing as otherwise non-excludable employees and the test would fail To sum it up in plain language, don't do it.

The 5330 has its own deadline.