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Good afternoon, If a private non-profit entity sponsors an ERISA 403(b) plan with an employer match, and then discontinues the match, can the plan be reclassified as a Non-ERISA 403(b) plan and stop filing Form 5500-SF? Would the plan need to be amended and restated into a Non-ERISA document? Would the mere presence of old account balances derived from employer matching in previous years make the plan continue to be covered by ERISA? Thanks as always for your help.

We took on a client - 403(b) plan - that never filed Form 5500. The plan was in existence since 2004. We are filing the late returns under the DFVC program. Since 5500-SF is not available for years prior to 2009, is it ok to file Form 5500 from 2004-2008 and Form 5500-SF for 2009-2019 or should we use the same Form for all open years? Thank you.

Hi! First-time poster, ERISA-newbie here. Here's the situation: Parent Non-Profit Company sponsors a 403(b) plan and Subsidiary For-Profit Company sponsors a 401(k) plan. The company wants to transfer a group of employees from the Subsidiary to the Parent (i.e., within the same controlled group). My question is this: What are the options for transferring assets from the 401(k) plan to the 403(b) plan? I realize that the IRS generally does not allow mergers or transfers of assets between 401(k) and 403(b) plans. I also conclude that transferring employees to the Parent would not automatically create a distributable event in order to rollover assets from the 401(k) to the 403(b) plan, as they are transferring employment to a member within the same controlled group. Thus, there is no severance of employment that would allow for the distribution. I'm exploring other options, including a complete termination of the 401(k) plan, but I'm having trouble finding a viable solution. Any ideas?

Prior plan is an non-ERISA 403b effective from 2009 and terminated prior to 2015. They only had employee contributions, never any employer contributions. The new ERISA 403b is effective 1/1/2015. The plan excludes vesting service prior to plan's effective date. Can the new plan exclude vesting prior to 1/1/2015 even though they had another plan during that time?

Client has 26 pay periods per year, resulting in two months (Mar & Aug) having three pay dates. The clients payroll system is unable to process voluntary benefits, including 401(k) deferrals on a 26 pay period basis (not sure why, just what I've been told). As such, although there are 26 pay periods per year, deferrals for the retirement plan are pulled from only 24. This fact has been widely communicated and is standard knowledge to employees. Question: has anyone seen anything in the code that would prohibit this arrangement? I'm slightly concerned for those employees who elect a % deferral, as their total deferrals for the year will be slightly less than the % they've selected due to the two additional pay periods not receiving any deferral withholding. Thanks in advance for the assistance.

It appears that Roth 403(b) contributions in included in the W2 Box 1 calculation of wages and also noted with code BB in box 12. Can the employee Roth 403(b) contribution be used to satisfy the earned income test associated with making contributions to a outside traditional or Roth IRA. Said another way... Assuming no other earned income, if MFJ, can a $13K after tax employee contribution to a Roth 403(b) be used to meet the earned income test to allow additional 2x6.5k contributions to a couple's Roth IRAs?

Client took a loan, which subsequently was deemed. Five years later, he paid it back so he could take another loan. The client is 59 ½ and tried to take an in-service distribution of the remaining account value. He was denied the full distribution amount due to the deemed amount that was paid back not being eligible for in-service withdrawal. Has anyone heard of this before?

New client with a plan document which is on a 403(b) Adoption Agreement and the plan's name is "403(b) DC Plan" but the plan only permits a nonelective employer contribution: no deferrals. Is this a 403(b) plan? (Why do I care? Because it is not a PPA document. If it is a 403(b), then I can restate now; if it is not a 403(b) but a DC plan, it is a problem.)

The instructions for form 5310 say to use the form for plans exempt under §401(a) and §403(a). The form, however, makes no mention of 403(b) and further (in item 6) does not include 403(b) plans as a type of plan. While the instructions mention §403(a), the form, itself does not--only referencing 401(a) Note that this form was last revised in 2013, so the question of 403(b) plans could be reflected in a new form. On the other hand, the IRS has upped its fee for filing a 5310,. So why not review the form, itself? The question is whether a terminating 403(b) plan should file form 5310 or is there another option for a determination letter upon termination?

We have a pre-approved plan document that requires participating employers to adopt the plan by signing a Participation Agreement, which is also signed by the signatory employer. Participating Employer X and the signatory employer signed a Participation Agreement properly in 2012, and again to mark Participating Employer X's cessation of participation in 2015. During the restatement process, it has been discovered that Participating Employer X is now totally out of business. Participating Employers are supposed to sign a Participation Agreement for the plan right now, in order to adopt the terms of the restated, pre-approved plan. But Participating Employer X does not exist. The pre-approved plan does not address this situation. Do others think that it would be sufficient for the signatory employer to add a note to the restated plan indicating that the Participating Employer cannot be found, and attach the old Participation Agreement that was originally signed? Thanks.

Would anyone have a copy of the basic plan document that MetLife used in its RetireServe program pre-2009? In May 2007, my client executed the MetLife 403(b) Adoption Agreement, but was not given a copy of the basic plan document. The Adoption Agreement contains a footer indicated that it is an "ERISA/January 2007" document and a 2004 copy write by MetLife. I would not be asking the question, but for the fact that the client was really late in signing MetLife's 2009 restatement. Just wanted to know what the plan provides, and if there is an argument that the 2007 document qualifies as a good faith written document as of 2009 under guidance issued by the IRS.

I have a 403(b) with elective deferrals, discretionary matching and profit-sharing contributions. The plan meets the universal availability requirements while excluding student employees and employees who regularly work less than 20 hrs per week. Question is: are these employees also considered excludable for purposes of applying the coverage and discrimination tests. I haven't found specific guidance in the regulations as it relates to 403(b)s specifically. It would seem intuitively that these employees would also qualify as 'excludable' for coverage and discrimination testing purposes as for matching purposes they would never receive a match as a result of being excluded under UA rules. Welcome any thoughts.

I'm not sure whether this issue is better placed in EPCRS 403(b) or Form 5500 because it applies to all. A client has a 403(b) plan that is now a large plan requiring an audit. The auditor uncovered several operational errors and a lack of adequate procedures to make sure the plan is compliant. The client has investigated the 3 prior plan years and has found similar errors. These are pretty typical errors: the employees may not have been made aware that they were eligible to defer upon hire, some employer contributions didn't start as soon as the participant became eligible for them, some late deferral deposits, contributions weren't always calculated using the correct compensation definition, some investment directions were not followed and contributions were invested in a default fund. The client will be correcting operational failures under EPCRS with a VCP application, with assistance of counsel. They expect to correct the late deposit of deferrals by calculating interest and depositing in participant accounts, without a VFCP application. But here's the more immediate issue. The 5500 is now overdue because the auditor will not issue a report. So a new late filing error has occurred and the penalty amount will continue to increase. The auditor wants all of the failures quantified, and won't proceed until the entire 30 year history of the plan has been investigated to uncover all errors. This appears to be unique to the first audit year because opening balances have to be verified. But when corrections are made, aren't they deposited and credited to the account in the current year? I have submitted many VCP applications that correct for multiple years (for large plans) and have never heard that the 5500 should be redone for prior years because the errors mean that the opening balances aren't correct. Is an auditor able to issue a qualified opinion in these circumstances - stating the types of errors that were found and indicating that the sponsor is working with counsel to make appropriate corrections? May be a separate question whether the DOL/IRS would accept this. There has to be a way to move forward and get the 5500 in (even if it needs to be corrected later) before the investigation is completed for prior years, the VCP application filed and a compliance statement received.

A county government has dual status. Their "403(b)" was in place prior to ERISA. They provide matching contributions, but claim the 403(b) plan is a non-ERISA plan. Is there a grandfather rule that would allow a 403(b) to be non-ERISA even if employer contributions occur? Would it have to be established before ERISA was enacted?

Does anyone know of guidance that says the rule that requires pre-break service to count for post-break vesting if the participant has pre-break 401(k) elective deferrals also applies to 403(b) elective deferrals?

I have a client with a defined contribution 403(b) with deferrals and match, on a 2008 Ascensus 403(b) document provided through TIAA-CREF - considered a large plan and requires an audit. Qualified plans were required to restate their plan documents for PPA by April 30, 2016. Is there a similar restatement requirement for 403(b) plans? If so, what is the restatement deadline?

A doctor has a few people working in his office at a hospital who are paid by the hospital and have access to a 403(b) plan with the hospital, of which at least one employee contributes. The doctor operates under his own business entity and does not have any direct employees paid by that entity. The doctor also maintains a 401(k) Profit Sharing Plan and Defined Benefit Plan sponsored by his entity. Does the doctor need to make contributions to the people who work in his office, if he accrues benefits in and contributes to both plans? I believe they qualify as employees under the common law definition but I'm not clear on the effect of their eligibility for the 403(b). Also not sure if I am asking the right questions? Any opinions from this community are greatly appreciated.

Client has two 403(b) adoption agreements - a TDA for the employee contribution (Plan 002), and what they call their DC plan for the employer match (Plan 001). Recordkeeper is TIAA. Client filed two 5500s in 2009, and then TIAA "linked" the account balances in 2010 and the employer started filing a single 5500 using the Plan 001 designation. No formal plan merger was completed, and no final 5500 was filed for Plan 002. They take the position that both plans are subject to ERISA. The employer changed auditors, and the new auditor is recommending a clean-up. Option 1: Take the position that the plans merged in 2010 when the accounts were linked (even though no formal corporate action was taken to merge the documents, and they continue to have two Adoption Agreements and two SPDs). Explore filing a delinquent final 5500 through DFVCP. Prepare a single plan and SPD going forward. Option 2: Take the position that they currently have two plans, and two 5500s should have been filed. Use DFVCP to file the missing 5500s for Plan 002, and amend the exiting 5500s to remove references to the assets from Plan 002. Then perhaps merge the plans formally and move forward with a single 5500. I understand from a plan adviser contact that this issue is pretty common with TIAA plans following the finalization of the 403(b) regs, so I would love to hear if anyone has encountered it before. Thanks much!

I've inherited a 403(b) plan that was intended to terminate in 2012. For reasons that are unclear, the annuity contracts in the plan were never distributed to participants in accordance with Rev. Rul. 2011-7. Instead, participants were contacted and asked to elect to withdraw their balances. Unsurprisingly, not all of the participants did so in a timely fashion. The plan was effectively forgotten until this summer, when 5500s were filed for 2013 and 2014 because the plan retained assets during those years. After this TIAA-CREF was finally contacted and a termination/distributions of the annuities was requested. TIAA-CREF went forward with the termination and distributed the annuities, but backdated the termination to the date of the original resolutions in 2012. So now the question is how and for what year do we file a final 5500 if TIAA-CREF is treating 2012 as the year of termination and a full 5500 has already been filed for 2012, 2013, and 2014? Obviously this also raises questions of whether or not the assets were distributed as soon as administratively practicable. Will the termination be deemed invalid, and, if so, what then? My understanding is that some of the assets were withdrawn by participants back in 2012. Thanks for your help.

On October 21, 2015, the IRS issued IRS News release 2015-118, announcing the changes in pensions and benefits limits for 2016. Most limits were unchanged. An updated chart, showing these limits for 1996 to 2016, is available by clicking here.

Can a private school allow the 15 year catch-up provision in a 403(b) document? I have seen information that says only public schools can use the 15 year catch up, but other sources say both private and public schools can allow this provision. Does anyone know for sure? Thanks.

We have a non-ERISA 403(b) plan that wants to add a match. We would like to add a 4% enhanced safe harbor match, thereby making it subject to ERISA. The question is, can this be done mid-year?

We have a former employee that has submitted paperwork from a 403(b) providor, to move her Ohio Deferred Comp funds (457)to the 403(b) providor. Wouldn’t she need to contact Ohio Deferred Comp to start the process to move funds from her 457 to that providor? I am not sure what role we as an employer would have for her moving funds from OHDEF to a 403(b) account. Are there IRS regulations that require the employer to be involved in distributions of a governmental 457? Thank you,

Hi, the 403(b) Lifetime catch-up definition states "To qualify...plan participant must also have contributed an average of less than $5,000.00 a year to the plan." Does this mean an average over their time of employment? Does this mean an average over the length of their contributions? Ex: Dave Smith began his employment in 1990. He has 24 years of service, so he qualifies. He has contributed $9,000 the past 6 years for a total of $54,000. Would he qualify for the lifetime catch-up? Thanks -John