Paul I

Getting stiffed for providing professional services in good faith almost always ends with a feeling of regret including what you shoulda, woulda, coulda have done differently to have avoided the situation. Your question in particular asks what would be ethical ways to proceed. As an EA, you are subject to the Joint Board for the Enrollment of Actuaries and its Standards of performance of actuarial services which includes guidance on what is considered "records of the client". You also should be aware of the ethical standards of any professional organization to which you belong such as ASEA, SOA, ASPPA, AAA... Generally, while there are differences between each organization's code of ethics, if you delivered work product prior to receiving payment for those services, you cannot withdraw or invalidate a client's reliance on that work product. Generally you do have a right, absent any formal contractual obligation, not to perform future services. You appear to have a direct relationship with the plan sponsors since you have filing authorizations and also because you personally sign the Schedule SB. If ultimately you decide not to perform future services for the client, you should notify them in time for them to find another actuary, but you may find in some of the applicable codes of ethics that you should not disclose the reason is the TPA did not pay your fees. If this is the case, consider offering to continue working directly with the client as a change in your business model. Keep in mind that it is the TPA that is not paying for your services, but it is the plan sponsors who are using and relying on your services. The ways to proceed you listed have an element of vengeance or punishment which commonly is driven more by emotion, and it is the plan sponsors (not the TPA) who would suffer by attempts to remove the SB. Temper the emotion, seek legal counsel about how to proceed about getting paid for services delivered, and get some guidance on the cost of exploring legal paths forward in terms your time and expense against the known cost of writing off uncollected fees. Do take some time to implement, maintain and follow the terms service agreements and engagement letters with the TPAs and clients.

@Bri is correct in pointing to the plan documents - adoption agreement and basic plan document - as a starting point. Conceivably, an amendment that says the spouse is eligible immediately could be simpler approach. This does assume that the spouse has earned income from the company. Be very careful as the employment of a common law employees can become a minefield for owner-only plans (OOPs!) For example: Some pre-approved OOPs documents have provisions that say as on the date there is an eligible common law employee, all contributions to the OOPs stop immediately on that day and the company needs to adopt a traditional plan to provide for any contributions to anyone after that date. If the common law employee becomes eligible to defer as a Long Term Part Time Employee, then the plan will no longer be an OOP.

Stepping back a little, it's important to keep in mind that the purpose of the 5500 is for the agencies to fulfill their obligation to provide oversight of ERISA plans. In the words of the Troubleshooters Guide To Filing ERISA Annual Reports, "The information in the [5500] annual report is carefully reviewed by the DOL, IRS, and PBGC for compliance with applicable reporting requirements and used for enforcement, compliance assistance, research and other purposes." Generally, the DOL, IRS and PBGC each year contribute additions to the form or request removal of existing items depending upon each agency's strategic plans and more specifically each agency's initiatives to assess topics that may require providing additional guidance. The ebb and flow of these areas of focus is reflected in the periodic changes in the forms. That being said, the information collected on the form has value for purposes of enforcement. The agencies commonly announce as part of their annual operating or strategic plans, topics that will be subject to scrutiny. Plan sponsors and service providers need to "read the tea leaves" and anticipate whether a plan likely has a compliance or operational issue that warrants added attention before the plan receives a love letter from an agency. The agencies have published the edits that applied to the information provided on the Form 5500, and most 5500 software developers have integrated these edits into their products. Notably, the edits vary from a full stop or failure of the filing to warnings and observations of possible concerns. The market place also demonstrates the value of the information collected to mine for prospective clients that fit a service provider's targeted profile. Those who sell to fear, or exploiting perceived or even actual weaknesses in a retirement plan’s administration will not hesitate to leverage this information, including sounding alarms over issues that do not exist for a plan. Ideally, reputable service providers will incorporate into their operations and more specifically into the 5500 process a review of key indicators of operational and compliance issues, and inform the plan sponsor and plan administrator. The ability of anyone to download historical 5500s makes it easy to gather information about a plan and identify indicators of operational issues and trends towards noncompliance. One particularly valuable exercise for large plans is to compare the contents of the audit report to the information provided on the form. There are far too many to list in a single post, but here are some examples: Does the description of the plan features in the audit report match the plan characteristic codes? Does the audit report describe events like corporate events that could cause fluctuations in participant counts which in turn could flag a change in audit requirements or possibly a partial plan termination? Are there any assets listed in the audit report that are known to cause operational headaches (real estate, art, life insurance...)? Is the disclosure of late deferrals consistent with the response to the question on the form about late deferrals, and are late deferrals a persistent problem? Is there an indication that the plan sponsor is part of a controlled group, but there is no indication that coverage testing across the controlled group was reviewed? Are there "Other" contributions reported without some explanation of what they are? Was there a a change in service provider that was disclosable on Schedule C, but was not disclosed? .... and the list goes on. All of this having been said, it will not be a reach to have the industry and the agencies dump all of the historical 5500 data files and audit reports into a single data source and use AI to identify the interrelationships among the data elements collected on the forms.

They look only at the amended return. If the 5558 box is checked, they will see that the original filing was put on extension. The very short version is you don't file an extension for an amended return, but an amended return should disclose that the original filing originally was extended.

Assuming there was a 5558 filed to extend the original filing and the box was checked on the original filing, then check the 5558 box on the amended return. An amended return replaces the original filing in the EFAST2 records.

Read the plan document and the loan promissory note very carefully. There can be a difference between being eligible to take out a new loan while on medical leave versus being able to suspend repayments of an existing loan due to going out on medical leave. This difference may be buried in provisions that say there has to be a reasonable expectation at the time the new loan is taken that the loan will be repaid through payroll deductions. How medical leave plan works also may factor into the decision. Is the participant while on leave receiving pay from the company, a short term leave plan or a long term leave plan, and is any of this considered plan compensation? It may be unlikely but it may be possible for the source of these payments be a factor to consider. Some plan provisions may require a participant to be unable to make the loan repayments in order to qualify for the suspension. There also is the issue whether, by permitting this loan, the plan sponsor is creating a precedent that other participants who are on other types of leave could use to take out new loans. It also would be helpful to clarify the role of the participant versus role of the plan sponsor in invoking the suspension. It would seem the plan would say whether the participant medical lease has the right to suspend repayments, and the plan sponsor just needs to administer the plan's loan provisions.

@Gilmore , is the business being terminated or does the partnership only wish to terminate the plan but the business will continue? If the business is continuing, then you may want to get a clear understanding of the partners' motivation for wanting to terminate the plan, and work with them on how best to attain their overall objectives. For example, do they want to terminate because: they think the cost of contributions for employees is too much? they think the top heavy contribution is "unfair"? they think the cost of plan administration is too much? they think the plan overly complicates their personal tax filings? It also would be worth having a conversation about their view on accumulating tax-privileged assets towards their own retirement. Are they proverbially throwing out the baby with the bath water?

If asked, we recommend 15 years with 20 years being okay but not preferred. We point out that: The maximum plan loan is $50,000 and the mortgage amount typically is considerably higher. The plan loan often helps spread paying off realtor fees, closing costs and moving expenses. A $50,000 loan will have monthly repayment of about $400 for 15 years or $330 for 20 years. Most loans for purchase of a primary residence are considerably lower since the individuals taking the loan commonly do not have a vested balance that exceeds $100,000. For a $10,000 loan, the monthly repayments are about $80 for 15 years or $66 for 20 years. These are small amounts (and even smaller when the payroll period is semimonthly or biweekly). Processing loan repayments for small amounts can become an annoyance for payroll. The longer the loan amortization, the more the participant and/or employer likely will pay in loan administration fees. The longer the loan is outstanding, the more likely the participant will terminate with an outstanding loan balance which always seems to add time to process the distribution.

I came across this article from Verrill about implementing Roth Catch Ups when a plan has a provision to spillover deferrals to a NQDC once the 401(k) limits are reached. The article in particular highlights a potential conflict between giving the participant an effective opportunity to elect out of a deemed Roth election and a requirement to make deferral elections before the start of the year for the NQDC. https://www.verrill-law.com/blog/consider-nonqualified-plans-when-implementing-new-roth-catch-up-contribution-rules/ The article makes suggestions on steps to take now to be sure the operation and administration of plans with the spillover/link to a NQDC is reviewed before 2026 starts, and that everyone involved with the plan - plan administrator, plan sponsor, service providers, participants - are all informed. This wasn't on my radar screen when discussing implementing Roth Catch Ups, so I am sharing it in case others also have plans that use these features.

The plan administrator and its service providers will make separate payments of the Roth and non-Roth accounts. In addition to the fact that IRA providers will not take on the responsibility of splitting a distribution into Roth and non-Roth accounts, the plan has to report the distribution to the participant on a 1099R, and there is not enough room on one 1099R for all of distribution codes needed to report the distribution correctly if it was made in a single payment. In short, no IRA provider would accept a check with co-mingled amounts, and the plan would have no way to properly report the distribution to the participant.

@casey72's question essentially asks whether the identity of the buyer changes as a result of the acquisition, i.e., is the buyer after acquisition not the same as the buyer before the acquisition. In a stock acquisition, the buyer after the acquisition is the same as the buyer before the acquisition. The first place to look for confirmation is whether the buyer's EIN changed as a result of the acquisition. Going back to the OP and @CuseFan's first comment, you can get to where you want to go by completing the stock acquisition and the buyer can merge the two plans without violating any successor plan rules. Why keep harping on a termination of either plan unless for some reason the buyer wants to use the acquisition as an excuse to take distributions now from the buyer's plan? The successor plan rules are there to discourage plans trying to skirt distribution and withdrawal restrictions by using a terminate-distribute-reestablish strategy. Some things are clever, and some things are too clever.

I agree with @Peter Gulia. It takes far more time to file on paper than to file electronically. This is the practical business reason to file electronically. The biggest exposure is a plan that is eligible to file on paper can choose to file electronically, but a plan that is not eligible to file on paper but does file on paper is considered by the IRS not to have filed. Why risk being subject to penalties, particularly if the plan sponsor cannot accurately count all of the forms that they filed with the IRS during the year? This is the practical penalty avoidance reason to file electronically. Can the IRS count the number of forms a filer submitted during the year? Yes, they can. The IRS has Entity Control Units in Kansas City, MO and Ogden, UT that manage EINs across all filings. Betting that the IRS cannot easily get a count of forms is not a good bet. Just some thoughts.

Your scenario certainly presents a trap, and potentially and especially for the plan administrator. Extending the scenario, assume the plan engages a financial advisor as a 3(21) or 3(38) fiduciary, and the financial advisor prepares or reviews and approves the content of the 404a-5 disclosure. Assume further that the lawyer is asked by the plan administrator to review the appropriateness of the benchmarks in the disclosure and the lawyer's comments that the benchmarks are questionable or maybe even inappropriate. Where does this leave the plan administrator, the financial advisor and the lawyer?

Frankly, the vast majority of recordkeepers pick a data source (like Morningstar) and use whatever the data source provides. Recordkeepers take the path of least resistance to assemble the disclosure just to be able to say it was done. In today's markets, the investment information in the disclosure is ancient history by the time it is made available to the participant. The vast majority of printed 404a-5 disclosures make the long trip from the recordkeeper's mail room to the participant's trash bin. Any 404a-5 disclosure available online likely only gets opened by accident. There are far better formats for communicating investment information having greater value to participants.

The lack of explicit guidance makes this subject to individual interpretation. Here are some approaches I have seen used where the benchmark is one of these: identified in each Fund Fact Sheet (readily retrieved with an online search using the fund symbol) published by Morningstar published on the mutual fund family's web site available from an investment analysis that a financial advisor made available Notably for target date funds, it is not uncommon for a mutual fund to provide a benchmark that is a blend of other benchmarks (e.g., 60% S&P 500 + 40% Russell 2000). It also is not uncommon for a mutual fund family to define its own benchmarks (which somehow happen to wind up presenting the fund performance in a better light than other published indices).

The terminology we use sometimes invites interpretations that are logical but can be misleading. For instance, the title of the Form 5500-EZ is "Annual Return of A One-Participant (Owners/Partners and Their Spouses) Retirement Plan or A Foreign Plan" which starts out indicating it is for one participant, but then lists several instances when there will be more than one participant - owner's spouse, multiple owners and partners, or a foreign plan. The title doesn't mention that more-than-2% owners of an S-corp are treated as partners. On a different topic, the instructions say the Form 5500-EZ must be filed on EFAST2 (unless the filer files less that 10 forms with the IRS) and then says "Information filed on Form 5500-EZ is required to be made available to the public." It follows this statement with "However, the information for a one-participant plan or a foreign plan, whether filed electronically with EFAST2 or filed on paper, will not be published on the internet." It doesn't say where the information is available to the public, but does say that won't be on the internet. While elsewhere, the IRS has expressed a concern that reporting a plan that has only one participant could reveal private information, the IRS does not prohibit it. (It does prohibit reporting an individual's SSN as a plan number.) For example, when a plan that files a 5500 or 5500-SF has only one remaining participant terminates, it still must file the form. As @Peter Gulia noted, the instructions do not say what to do if there was a common law employee other than the owner-employees at the start, during or end of the plan year. One place to consider looking to for guidance is - drum roll - the plan document. Some pre-approved plan documents designed specifically as an owners-only plan have a provision that says as soon as a common law employee other than an owner employee meets the entry requirements, all elective deferrals and employer contributions will cease immediately and the plan sponsor will need to a plan that will cover the common law employee. This language support the concept that Form 5500-EZ reports only when the plan had no common law employees. Should another plan be adopted that covers the common law employee, this newly adopted plan will file a Form-SF for the part of the plan year it was in existence.

It is possible that you are clicking on something and getting an error message because of how the software vendor is editing your entries. Are you using EFAST2-approved vendor software or IFILE? If you are using a vendor, then I suggest calling their support group. They may have implemented edits beyond what is required by EFAST2 that are giving you the error message, and your issue may have to do with their edits and have nothing to do with the form or instructions. I've worked with multiple vendors and marvel at how well their systems handle the complexities of 5500s. but they, like us, are not perfect.

You remember correctly. The Form 5500 Preparer's Manual says: "Enter Code 4Q. If an ERISA welfare benefit is provided that does not have a specific code—for example, employer-provided Medicare supplements, longterm care, accidental death and dismemberment, an employee assistance program (EAP), or health reimbursement arrangements (HRA)—enter code 4Q and explain the benefit as a footnote at the bottom of the page. The DOL states that an EAP is a welfare plan, whether or not it is part of a medical or disability plan. [DOL Adv. Ops. 88-04A, 92-12A] However, if the EAP only provides referrals for counseling, it is not a welfare plan. [DOL Adv. Op. 91-26A] Wellness plans can fall into the same category as EAPs."

Consider working out the steps that will be taken to correct the issue including what needs to be corrected, how will it be corrected and who will calculate the correction. With a work plan in place, have a discussion with the current auditor about to add getting the audit or audits done. They may suggest some paths forward such as they will expand the 2024 audit engagement to include 2023. They also can discuss whether they will issue a report with a disclaimer (which almost certainly will trigger a call from the DOL). Having a plan, or having an active engagement to make corrections and restate the audit will go a long way to getting some time to clean things up. This will not be cheap, but the goal is to make a good faith effort to do what is right.

It would seem that the withdrawal could be considered an overpayment from the plan, and the rules of EPCRS procedures for overpayments would allow plan administrator to ask for the return of the withdrawal. A hardship withdrawal cannot be rolled over, so the withdrawal when originally paid would have been treated as a taxable distribution reported on a 1099R with a code that indicates if it was subject to an early distribution penalty. If the 1099R was not yet sent out, it would take communicating with the 1099R preparer on what gets reported. If the 1099R was sent or if the preparer refuses to cooperate, then the participant will have to file a request with the IRS to recoup the taxes and penalty. If the funds aren't paid back, the plan administrator can choose not to recoup the amount. The plan administrator should work with the recordkeeper/TPA to take steps to prevent this participant from taking a hardship withdrawal with out an approval from the plan administrator. The employer also may wish to have a discussion with the participant about possible disciplinary action for lying and taking money out of the plan under false pretense. Just some thoughts.

@MD-Benefits Guy , note that the link in your post to the IRS page also includes: The IRS is pointing out your plan document could specify that deferrals and match would stop when someone reaches the comp maximum, but the IRS is not saying that the plan document must stop deferrals and match when someone reaches the comp limit. The example in your post illustrates that for a plan year, a participant cannot make deferrals or receive an associated match that exceeds the terms of the plan. The IRS noted early on in the life of 401(k)s that high paid individuals who were not eligible to participate until later in the year would be disadvantaged by putting a hard stop on deferrals and match based on a plan year-to-date comp limit.

The issue of reimbursing participants affected by a Market Value Adjustment (MVA) triggered by an early termination of an insurance contract was address in Private Letter Ruling 200404050. The conclusion was the MVA reimbursement is not a contribution and is not considered 401(a)(4) or 415. This interpretation also is consistent with Revenue Ruling 2002-45 which addressed "restorative payments" and concludes these are not contributions or considered for 401(a)(4) or 415. Whether or not forfeitures can be used top reimburse participants depends upon the terms of the plan document regarding the use of forfeitures. The plan's ability to use of forfeitures increasingly has come under scrutiny, and we have seen an increasing need for the plan to specify possible uses of forfeitures. In other words, since the MVA reimbursement is not a contribution, having a plan provision that says it can be used as a contribution likely will not permit the use of forfeitures here. None of the pre-approved documents that I have seen do not have language that explicitly says forfeitures can be used to make corrective allocations. I suggest consulting ERISA legal counsel for advice before the plan moves forward with using forfeitures to cover the MVA.

There is a distinction between late deposits and crediting contributions to the wrong participant. Late deposits are tied to the company not timely transferring participant money to the trust. When looking at the payroll-by-payroll funding, if at anytime there was a shortfall, then that is a late deposit. If there were crediting of contributions to participants so that at times some participants were underfunded and and at times some participants were overfunded, then not only should the correct total contributions be credited correctly, but also that related investment earnings should be credited correctly. This may require funding if there is a net shortfall. Don't forget to look at participants who were affected by this mess and who have taken distributions from the plan. This definitely is not a trivial exercise and consider having the client sign an engagement letter prior to starting work.

I, too, was wondering about Overnight Expert's credentials. Not only was the "A Year in the Life of a TPA: Retirement planning fundamentals for people getting started in a TPA role" - 48 pages - released on September 8th (yes, less than 3 weeks ago), but also Overnight Expert released "Retirement Plan Fundamentals: A Practical Guide for Aspiring TPAs, Compliance Professionals, and Exam Candidates" - 75 pages - on September 10th. The paperback versions are relatively expensive. The sample available in the Retirement Plan Fundamentals is on point, avoids jargon and is readable by a novice. I would not be surprised if the author is someone with a depth of experience who saw a need for a layman's version of "how do you describe to your relatives at Thanksgiving dinner what you do for a living", and then used AI to bring it all together.

The reason for my suggestion to use the current limits along with a comment that the limits will be adjusted when the updated limits are available is to decrease the possibility of operational errors. None of the limits are going down without some legislative action. All of the limits currently announced late in each year are effective in the next year. Almost every participant will have an effective opportunity in that next year to take advantage of any increase in limits. If, in the very unlikely event an estimated limit is used and it turns out that limit is not adjusted upwards, then there is the possibility for having excess amounts/benefits in the plan which would require a correction. There is a distinction between predicting the limits in communications (which is fine if they are labeled as estimates) and using predicted limits in operating the plan (which can cause problems).