Paul I

The LTPT rules are designed to create an opportunity for them to defer, and a selling point for this is the LTPTs can be excluded from all of the other requirements to provide benefits and for compliance testing. My understanding is for LTPT employees, once you move beyond providing the opportunity to defer, they will be treated as any other employees eligible for those other benefits.

It is possible, but there should be a good explanation. For example, a 401(k) profit-sharing plan adopted late in the year (deferrals aren't available until the start of the next plan year), and only a profit-sharing contribution is made and it is funded after plan year end. If the 5500 is done on a cash basis, then the ending balance for the first year would be $0. Given the lack of attention to the plan, it would seem very likely that the notices required for the "maybe" safe harbor were mishandled or just not done. The company needs to have a plan of action not only to file the 2024 5500 on time, but have a plan of action to file all of past due forms asap using DFVCP. This plan of action would include making sure participants have gotten all allocations of all of the benefits due to them.

Was the plan communicated to employees and for 21 years no one elected to defer? I hope the plan has all of the elections over the years not to defer, or there is the possibility the plan is due 21 years of missed deferral opportunity for each eligible employee! Is there really a firm out there representing itself as a TPA that let 21 years go by without raising alarms? The plan sponsor may want to entertain making an argument that with no trust assets, the plan never was fully established. Dealing with no reporting since 2020 by itself is enough of a nightmare, not to mention all of the missed plan document restatement cycles.

Beg for mercy! The company would have to document fully that their intent was to establish the plan and had decided on a specific set of plan provisions. They would have to show the plan was communicated to all eligible employees, and the account was in fact a trust account. They also would have to get all of the work done that should have been done including the actuarial work and 5500, and then attempt to convince the IRS to accept this body of evidence that the company fully intended for the plan to exist. There is no guarantee that the the IRS will buy it, but sometimes the IRS in open to a company having made an honest effort. Definitely work with legal counsel who sincerely embraces this strategy. The alternative is to restate their 2023 tax return, pay taxes and associated penalties and interest, and put in the plan now retroactively to 1/1/2024.

For this particular case, @david rigby is correct to point out that the total value of all of the real estate exceeds the total value of the deceased owner's account and we all agree that transferring all of the real estate as part of the distribution to the deceased owner is not appropriate. It would be a step forward if the plan's participants, working with independent fiduciaries, could at least transfer one of the properties as part of the distribution. This would require having an independent appraisal of the fair market value of the property. The remaining property would remain in the trust until such time as the trustees and independent fiduciaries can arrange for the sale of the property to put the plan in the position of being fully liquid. This likely should be done sooner than later in the event the death of the owner puts the company on a path that leads to the termination of the plan. The key element for this piece to work is also to document that the sale of the real estate is an arms-length transaction price fair market value. This can be a challenge when dealing with real estate, and is yet another reason to engage legal counsel. It is worth noting that this scenario comes up with other non-traditional assets such as gold bullion, art work, certain private placements and limited partnerships, and other similar investments that can only be liquidated in a single transaction.

We worked with a client in a very similar situation and their ERISA legal counsel. The assets of the plan were not participant-directed and there were no ties between the real estate and any of the plan fiduciaries. The appreciation on the property was included each year in the allocation of trust income to all participants. The facts including a current appraisal of the property were communicated to each participant to get their concurrence with allowing an in-kind distribution of the real estate. We understood the participants essentially did not want their retirement accounts tied up with an illiquid investment and they signed off on the transaction. This was all worked out with legal counsel guiding the process and drafting the related communications and agreements. Definitely, do not try this without active involvement of legal counsel at every step.

This may help. See the last paragraph. https://www.irs.gov/businesses/small-businesses-self-employed/s-corporation-compensation-and-medical-insurance-issues The bottom line is the insurance is taxable to the the employee shareholder. This begs the question of is the spouse is a more-than-2% shareholder? It does not answer the question about the plan definition of compensation and in particular what compensation is used to calculate deferrals and contributions. This begs the question of who turned payroll into plan experts? Maybe payroll should read this: https://www.irs.gov/retirement-plans/avoiding-compensation-errors-in-retirement-plans

Compensation is among the most vexing topics for us all. Part of the challenge starts with asking about "W-2 Comp". Some adoption agreements use this term to refer to all income reportable on Form W-2 which can include items that are reportable under Code sections 6041(d), 6051(a)(3), and 6052. Other adoption agreements call this "Wages, tips and other compensation on Form W-2" or just "6041 and 6051 Compensation". The another common term is "Section 3401(a) wages" or just "3401(a) Wages" which basically is wages that are paid to the employee in that paycheck. Which brings us to the question of what does "Health Insurance Expense of $20,000" refer to? This is a term that is a label used by this particular payroll for a payment made by the employer that is related to health insurance for the employee. Given that the $20,000 is not included in Box 3 and Box 5 (and is such a large, round number), it was not subject to payroll taxes, and likely would not be included as 3401(a) compensation but would be included in 6041/6051 compensation. It is worth asking the client or payroll provider for a description of that payroll item, reviewing the description against the plan definition of compensation, and confirming with the client and payroll how the amount should or should not used in administering the plan. It is this type of situation the plan may, for example, include the amount in the definition of compensation for purposes of making elective deferrals, and everyone now finds out that payroll has never done so. May you have the good fortune that, even though no one may have asked the question before, everything has been done according to the plan document.

Were it that simple. The starting point is to explore the requirements of 1.410(b)-7(c) regarding mandatory disaggregation and 1.410(b)-7(d) regarding permissive aggregation. Browsing some IRS training material at https://www.irs.gov/pub/irs-tege/epch1302.pdf provide a flavor for how these rules apply. At a very high level, mandatory disaggregation is about when plans cannot be tested together, and permissive aggregation is about when plans can be - but are not required to be - tested together. The rules can also get into how a plan's participants may be separated into groups that can be tested separately which is about permissive disaggregation. One thing in particular that catches some practitioners off guard is when in a 401(k) plan elective deferrals, matching contributions and employer nonelective contributions are tested as if each is a separate plan. Be keenly aware of what you know you don't know. Hopefully you have access to an experienced practitioner who can guide you through how to apply these rules to a specific situation. Welcome to the wonderful world of coverage and testing!

The Roth account by definition was 100% vested when the participant terminated. Any forfeiture would have come from an employer source (match and/or nonelective employer contribution). If the amount distributed from the partially employer sources are repaid, then the associated forfeitures should be reinstated.

I agree with @Bill Presson since the company had the opportunity to review the calculations and it was the company that wrote the checks and took the deduction on their tax return. The only possibility that this was done in error would be if the plan document has a fixed allocation formula and with no discretion to decide each year how the contribution should be allocated. This is pretty rare these days. Take a close look at the plan document. The comment that only "certain HCEs" were not going to get the same rate as the owners implies that there different allocation groups among the HCEs, and there is no mention of what NHCEs (if any) received as an allocation. Has the CFO thought about the employee relations aspect of taking contributions away from participants? One would think that HCEs in general are making substantial contributions to the success of the company, so why create a disincentive by saying the company made a mistake and wants to take back part of their contributions (probably including related earnings)? Any change from past practice is a decision that should be made by the owners.

I admire your initiative, thirst for knowledge, appreciation for the complexity, and desire to be efficient productive. Certainly the time and effort to build out the chart is requires a lot of focus and is itself an learning experience. Here are things to consider as you build out your chart: Ask questions about the environment in which the plan lives: Is there only one employer or are there other related employers who are or are not participating employers in the plan? Does any employer sponsor another qualified retirement plan? What is the type of the business of each employer (C-corp, S-corp, Sole Proprietor, Partnership, LLC, LLP...)? Is this the first year that the plan is in existence? Does the plan specify using Current Year ADP testing or Prior Year ADP testing? Does the plan specify using Current Year ACP testing or Prior Year ACP testing? Note that Top Heavy is a status of the plan and is determined as of the end of the preceding plan year, so ask if the plan is Top Heavy for this year before launching into allocations and compliance testing for this year. Yes, you will want to determine the Top Heavy as of the end of this year so you will have the starting point for next year. Check whether census data is complete and accurate. There's nothing like doing all the work and finding out the census data is incomplete or inaccurate. In many ways, the rules look at a plan not as a single plan but rather as three separate plans - elective deferrals, match, and non-elective employer contributions. Each of these can have their eligibility, entry and allocation provisions. Having a top-down hierarchy may not be the best work flow. Complete the determination of HCEs up front. You will need this for just about everything. You may want to have a separate procedure just for this. If there are other related employers, check 410(b) coverage across all of the employers. (A failed test needs fixing and will have an impact on everything else.) Keep in mind that forfeiture reallocations are annual additions that can impact the 415 limit. These are just some random thoughts that may help you progress further. Good luck!

What is notable about this situation is the relative informal approach the DOL is taking. It seems as if they are going out of their way to avoid opening an investigation of the plan. Here is a well-done article the provides an in-depth description of what can be involved in an investigation: https://www.groom.com/wp-content/uploads/2022/12/Guide-to-Dealing-with-Department-of-Labor-Investigations-of-Retirement-Plans.pdf Regarding the circumstances in this posting, the guide clearly states on the first page: "The DOL does not have the authority to compel the plan or any service provider to create materials or analyze issues on the DOL’s behalf." The guide also notes that: "The DOL has broad authority under the statute to: Require the submission of reports, books, and records of the plan. Enter places to inspect books and records. Question persons deemed necessary to determine the facts relative to an investigation." Given this authority, it begs the question in this case why, after all other attempts to contact the plan fiduciaries, hasn't the DOL sent an agent to the plan sponsor's (or any other fiduciary's) last known physical address? They DOL loves to harp about finding missing participants. They may wish, in this case, to try to find a plan sponsor that is MIA,

My understanding is the DOL Delinquent Filer VCP is used for when no filing was made. If a filing was made without the audit report, that is a deficient filing, but nonetheless a filing which can be amended. With respect to the DOL, as long as the plan has not received the dreaded NOR letter (Notice of Rejection), the they will accept the amended form.

I can appreciate that documents, procedures and regulations often are written to say the rules are black and white, right or wrong, good or bad... which makes it easy to obsess with being perfect. But we live in the real world where stuff happens and there is a need to be practical. Even the IRS has guidelines for rounding to the nearest dollar on tax forms. Yes, distributing $0.02 is very costly relative to the amount. If you ask the payee about it and they want the $0.02, then send them a letter with two pennies taped to it. Even that is disproportionate to the amount, but that's okay if it makes everyone feel better. The same suggestion applies to adding $0.02 to next year's payment. I appreciate your understanding of the situation and seeking input for a pragmatic approach resolution. These are my thoughts, but others may feel differently.

I assume this has to do with how the Form 5500 is completed. It is an annoyance. If should be using full accrual accounting which would get the plan to zero no matter which date is used for the plan year. Technically, the plan year ended on the merger date but the trust continued. If the trust also was considered merged on the merger date, then the assets belonged to the new plan. If not, then the trust persisted after the merger date. What really matters is that if the Form 5500 has the Final Return box checked, then the ending balance on the Schedule H must be zero. The transfer of assets also is disclosed on Schedule H. Whether the plan year is entered as 10/2 or 10/15 is not a big deal, nor is the cost of professional time that the client could get charged for "discussing" the issue. And, by the way, the client can decide since they are signing the form under penalty of perjury (and it is okay if the audit report differs from the form as long as the difference is explainable).

Roth Deferrals are Elective Deferrals. The IRS now calls them Roth Elective Deferrals. The issue with the correction rules is they specify that the corrective contribution is a QNEC, which is a pre-tax employer contribution, but there is no Roth QNEC. The challenge is how to try to get the QNEC into a Roth source which is what the participant originally wished to do. The IRS possibly could have come up with some Roth QNEC rules, but I suspect their focus was elsewhere and Roth transfers seem to be a reasonable solution. I don't expect any clarification on this anytime soon given everyone in the IRS is probably wondering if they will still be employed at the end of this year (or if they are shut down come the March 14th deadline to fund the government).

First, confirm what the plan documents has to say about the use of forfeitures, and be aware that forfeiture provisions may scattered around in the document in sections dealing with contributions, forfeitures, allocations, expenses and plan termination. Also pay attention forfeiture provisions where the plan may require forfeited amounts to be reinstated for terminated participants who were not fully vested. These rules can be particularly tricky if the plan uses hours of service rules, or has been aggressive in making cash-out distributions of small balances. A lot of Cycle 3 pre-approved plan documents have a provision that says the plan sponsor can choose what to do with the forfeitures. Be mindful that this happens to be at the center of a lot of recent law suits against the plan sponsors. Let's assume that the decision is made to use available forfeitures to pay for plan expenses. Frankly, this is common. Best practice is to make sure that the plan expenses will equal or exceed the amount of available forfeitures. The plan does not want to be in the position that all participants are paid out and all expenses have been paid, and there is still money left in the plan. It can be a nightmare trying to get rid of what likely would be a small amount by reallocating it to participants who already have been paid, or by reverting funds to the employer (just don't do this). Also keep in mind that the plan really isn't terminated until the trust assets equal zero, and Form 5500s need to be filed for each year until the year in which that happens. If the trust persists for more than 12 months from the date of the plan was terminated, then the plan may be considered as no longer terminated. This really is not onerous. Read the document, fully vest current participants, check for any required restoration of accounts, decide on the use of the forfeitures, get a good estimate of the expenses, write the checks, close out the trust and file the final Form 5500.

I am not aware of anything in EPCRS that provides an explicit correction method for missed Roth deferral. (This is different from when a pre-tax deferral is made when it should have been Roth,which is addressed in the IRS article for which you provided the link.) The IRS article does provide a suggested approach which get the participant close to where they wish to be. Assuming the plan allows transfers from pre-tax to Roth, make the appropriate QNEC correction and then have the participant elect a transfer from the amount of the QNEC to Roth. This would be taxable to the participant in the year the transfer is made. Note that the IRS proposed using a similar transfer in the recently released rules for allowing participants to elect to have an employer contribution made to their Roth account (and a QNEC is an employer contribution). Absent specific guidance, think through the correction steps and any associated plan provisions needed to implement the correction, and discuss all of the implications with the client. The rapid proliferation of Roth throughout the plan easily may have unintended consequences.

Daily valuation uses end of day market values or end of day asset positions (as appropriate for the transaction). When we recordkeep SDBAs, we use end of day market values or end of day asset positions (as appropriate for the transaction) in the participant's account. It all works if the brokerage account is readily available to us via the financial advisor, participant or read-only online access. @Bri does raise an interesting point about plan provisions that provide check boxes to choose the plan's Valuation Dates. Typically the document has an annual Valuation Date be default and then allow choices like daily, monthly or quarterly and maybe an option to describe other dates. These choices may also be made for each contribution source. I am curious: Does anyone use the describe line to identify the SDBA as a real-time Valuation Date? Does anyone with a daily plan that holds assets that are not valued daily (e.g., real estate, LPs) use the describe line to disclose that some assets are not valued daily?

If I understand the situation correctly, we can look at as Companies A, B and C are in a controlled group. Company A sponsors a plan and Companies B and C are participating employers in Company A's plan. There is a Buyer who wants to buy Company A, and does not want to buy Companies B and C. You do not say if the acquisition of Company A by the Buyer is an asset sale or a stock sale. If it is an asset sale, the employees of Company A will be considered to have terminated employment from Company A and been hired as new employees of the Buyer. Company A will continue to exist until it goes out of business. A scenario under these circumstances may be to have either Company B or Company C assume sponsorship of Company A's plan. After the acquisition, the former employees of Company A could take a distribution the former Company A plan (now the B or C plan) including making a rollover their balances into the Buyer's plan. If it is a stock sale, the employees of Company A will not be considered to have terminated employment from Company A. If the goal is not to have a multiple employer plan, then action will need to be taken before closing on the sale. A scenario under these circumstances may be to have either Company B or Company C assume sponsorship of Company A's plan, and to make Company A's employees ineligible to participate in the plan as Bri commented. After the acquisition, the Buyer could arrange a trust-to-trust transfer of the Company A participants' accounts in the former Company A plan (now the B or C plan), into the Buyer's plan. These are just two scenarios out of many. Some key points to keep in mind are: there are more scenarios available before closing than are available after closing. treatment of plans in asset sales generally are simpler that in stock sales. in the chosen path forward for the plan(s), be mindful of the need to coordinate the structure of the associated trust or trusts .

I observe that if the client has no clue where to find a resource on which to base their investment decisions, they should not be making any investment decisions for the plan. You may want to point the client to articles about their fiduciary responsibilities and the risk they are taking by doing a task for which they are not qualified to do. Here is an example: https://www.employeefiduciary.com/blog/meeting-401k-fiduciary-responsibility Good luck!

As @Bill Presson noted, plan accounting for SDBAs for individual participants existed many years before than daily valuations applied across the entire plan. The plan accounting methods used for those SDBAs are fully compliant with all requirements for any defined contribution plans. Note that there are multiple approaches to the accounting techniques so the math may differ, and the results may vary slightly, but all are compliant. This also happens to be true about daily valuations. Not all recordkeepers use exactly the same plan accounting math and the results do vary slightly, but each recordkeepers' results are compliant. There are many variables that come into play. Some are related to plan design like, as @Gadgetfreak notes, includes vesting, administrative fees, Roth tax basis, investment in contract from other already taxed amounts, prior partial distributions, and loan accounting to name a few. Others are related to the type of investment that may be permitted in the SDBA like employer securities, limited partnerships, private placements, periodically valued investments, certificates of deposit, non-benefit responsive GICs and gold bullion to name a few. There also may be a need to accommodate securities that will only trade in whole shares. I have seen and done plan accounting for all of the above, and all of that plan accounting is and was fully compliant. Timing of transactions is not an issue. Distributions from fully or partially vested sources, could be made daily (if the assets were liquid). Practically, SDBAs that have several complicating features require can require individual attention and that comes at a cost, and the plan can have that cost paid by the participant's SDBA. That added cost should factor into the plan sponsor's decision whether to have SDBA's and, if allowed, whether there will be restrictions placed on the sources that can be in the SDBA and the types of investments that can be held in the SDBA. As an industry, we all are obsessed with being 100% accurate, but what we really are obsessed with is being 100% compliant. An the often unrecognized beauty of the laws and regulations that govern the plans we work is the flexibility to creatively design and recordkeep a plan that meets the objectives of the plan sponsor.

I have not had any clients offer incentives. If I may add a question, has anyone seen a plan with an auto-enrollment feature provide an incentive either for making an affirmative election to elect deferrals, or for not opting out of the default election by the end of the plan's opt-out time period?

The facts and circumstances that @Peter Gulia points out are relevant, but it may take a significant effort to get the information needed to make a decision. I suggest starting with asking the bundled service provider to give you for the due diligence they did to be able to assure clients that this is acceptable. Further, you may want to ask them to answer questions that you can anticipate receiving from participants like: If I have an existing rollover account, will the entire account have no fee? If not, how will the new rollover contribution be accounted for? If I take a distribution from the new rollover account before the end of the 6 month period, will I be charged an asset-based fee? If I take a loan from the new rollover account before the end of the 6 month period, will I be charged an asset-based fee? If I take rollover a distribution from my existing rollover account and then subsequently decide to roll it back into the plan, will that be eligible for this offer? Does this offer apply to all asset-based fees such as including fees that may be associated with the plan's investment options such as 12b-1 fees, commissions, sub-TA fees, redemption fees and other similar fees? You also may want to ask: If the bundled service provider's fee schedule is based in part of total assets of the plan, will the new rollover contributions be included in determining the provider's fee applicable to all participant in the plan? If a Schedule C of the Form 5500 is required, will the amount of the fee that is not charged to the participants be reported on Schedule C? As a colleague always liked to say, the devil is in the details.