FORMER ESQ.

Niceguymike: What definition of compensation does the plan currently use for calculating allocations? What type of plan is this (e.g., individually designed PS, etc...)?

No. DFVC filing fees are settlor expenses. They must be paid by the plan sponsor.

Agree that a calendar year 2020 plan for B (e.g., effective 1/1/2020) would require aggregation of A and B's plans for coverage and non-discrimination testing. Agree that an effective date of 10/1/2020 for plan B would not result in aggregation. As far as 1.401(a)(4)-5 timing issues, a 10/1/2020 effective date for plan B, when A and B are no longer part of the same CG should not cause a problem, assuming that the sale to the PE is a legitimate business transaction (i.e., not a subterfuge to avoid 401(a)(4)).

First look at the plan document to determine who and how the plan may be amended. Argue that the agreement fails to meet the plan's requirements for making an amendment. Once you pass that hurdle, which I think is achievable with some creativity, the bigger issue you have is what now? The promise to provide benefits to the employee (e.g., the 5% match) does not go away. You now have a stand-alone promise to an employee to provide future compensation for services performed, and that's subject to 409A.

As an attorney, I am a bit shocked as to what the agent's attorney conveyed to you. Maybe she/he is not an ERISA attorney. Anyway, given the language in your plan document, such as proposed modification would clearly violate 411(d)(6) for any employee with even 1 hour of service in 2020.

Your analysis is correct. Assuming your plan/agreement explicitly provides that the payment date for the specified employee is after 6 months following the separation from service (which it should), the subsequent deferral election as you state above would be timely made.

Not a 409(A) issue.

I agree with Luke. Unless the resolutions are explicit on this point, I think the better argument is that the termination means termination. You cannot make a contribution under an instrument that does not validly exist.

Yes, unless the effect is to somehow benefit HCEs in violation of 401(a)(4).

Use Code 4R. The plan has not terminated. Only the funding method has changed. Huge distinction. For what it's worth, I practiced employee benefits law for 15 years.