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We have to file form 5310 for the following situation. Employer sponsors a DB and a Profit Sharing 401(k) Plans. Since inception in 2012 plans have been aggregated for testing purposes Employer is terminating the DB plan in 2016 and filing with the IRS for Determination letter (Form 5310) The plans are not safe harbor design and the DB has also non statutory class exclusions. Here are several questions: Must we answer the the questions on 5310 only for the DB (as if the other plan did not exists?. I do not see any question- excepting if the plan is part of an offset arrangement (which is not)- that leads me to think that I should take into consideration the # of participants, the 401k.m provisions, plan assets, employer contributions, etc. for the profit sharing plan. The form asks , though, if the Employer maintains another qualified plan. But the required statement requires only enough info to identify the plan The form asks if "the top heavy minimum accrual or contributions" have been made. They were made in the profit sharing plan. Should the question on form 5310 be answered YES (even though they were made in another plan?) Any help greatly appreciated Thanks in advance

I have a question about the filing of a final Form 5500 after a 401k plan termination. All assets of a 401k Plan Sponsor are being purchased in an asset sale and while the Plan Sponsor legal entity will continue to exist for a period of time, there will be no employees. The Plan Sponsor is terminating all benefit plans, including the 401k, as of the day of the transaction. The Buyer is not assuming any of the Plan Sponsor's benefit plan liabilities in the purchase agreement. Clearly it will take some time for the 401k assets to be distributed after the plan termination date. So who files the Final Form 5500 in a situation like this? I would assume the Plan Sponsor is responsible for the filing as long as the entity is still in existence at that time, right? Would the Buyer have any responsibility? I'm curious how others have seen this handled. Thank you!

Code Section 401(a)(20) permits a terminating defined benefit plan to distribute benefits to active employees "within one year" of the termination date. If the assets aren't distributed within a year, the plan isn't considered "terminated." If all trust assets are distributed (within a year) through the purchase of a deferred annuity contract, can that annuity contract retain the in-service distribution option, so that active employees can receive distributions beyond the one-year period? I can't find any guidance on this question. Cheers.

FACTS: ESOP plan effective 01/01/2012, Cycle D (submission period ending 01/31/2015). This plan is not a "true" ESOP. It has no loans and no shares contributed. The Employer made a cash contribution in 2012 with the intention of buying stock, but never ended up doing so. The only accounts in the plan are cash accounts (profit sharing). The Employer was talked into this plan by their prior TPA and has since terminated their services and has hired us to takeover and terminate this ESOP. In addition, the client has a 401k plan that is effective 11/01/1984 that we are also taking over and this plan will be continuing. The Employer wishes to terminate the ESOP effective 08/01/2014. Concern: I'm concerned that the ESOP document is not updated according to the current cumulative list (2013) since the plan is effective 01/01/2012 (adopted in December 2012). In addition, I do not believe the plan was submitted for Determination Letter off-cycle (new plan exemption). So no DL has ever been issued. My concern is what if the plan were to be audited? Question: Rather than restating to another ESOP document for Cycle D, can we restate the plan to a "profit sharing" plan on a pre-approved PPA Document effective 01/01/2014 and then terminate the plan effective 08/14/2014? Or should I not worry about restating the plan and just do a board resolution to terminate it and be done with it? Any suggestions or thoughts are appreciated. We do not provide document services for ESOP so I am way out of comfort zone here. Thank you!

On the Notice to Interested Parties, if the last date for comments to the IRS falls on a weekend or holiday, what date is the actual due date for the comments? Please also provide a source for that information. If the correct answer is that the due date is the next business day, does it suffice to display the weekend or holiday date as the due date on the Notice, and then put a sentence at the end of that paragraph to the effect “If any of the due dates for receiving comments falls on a Saturday, Sunday or legal holiday, comments shall be considered timely if they are received on the next business day”? Thanks.

We have a plan that terminated with a lost participant. The assets for this participant reverted back to the plan sponsor. The participant was found three years later. The plan sponsor will pay them. We will probably outsource the distribution. Is there any necessary plan reporting?

A plan sponsor was acquired via stock sale. They were told that terminating their plan before the deal closed was advisable to provide more freedom of choice to their plan participants (a distributable event allowing more distribution choices, rather than face a plan merger under the successor plan rules). The acquiring entity also did not want to take on the liabilities present in an active qualified plan with operational defects. I don't have any details on the purchase agreement between the 2 parties, unfortunately, but will guess that not much was stated regarding the retirement plan. So now we have a terminated plan that still has a number of steps to fully shut down, including current and future compliance testing, tax form filings, potential refunds, distributions, etc.. Question 1: Am I correct is thinking the acquiror has every right to insist that those tasks (and costs) be handled by the acquiree? Question 2: Does the acquiror somehow inherently own the liability for the acquired company's plan anyway, absent anything in the purchase agreement specifying that the plan trustees/officers of the acquired co. are personally responsible until the plan is shut down and beyond? Thanks for any comments and observations!

Looking for thoughts on an issue of first impression for me. Company A is the parent of Company B. Employees of Company B participate in a nonqualified deferred compensation plan maintained by Company A. Company A spins off Company B and, for business reasons, does not terminate the NQDC plan as to the employees of Company B (as would be permitted under Section 409A's termination rules in connection with a change in control). Employees of Company B have not undergone a separation from service because of the spin off because they still work for Company B. Company A retains the pre-spin liabilities relating to the NQDC plan and arranges for Company B to notify Company A when an employee separates from service with Company B (and all the post-spin entities in Company B's new controlled group) so Company A can commence payment under the NQDC plan. Following the spin-off, for business reasons, Company A and Company B want to allow employees of Company B to continue to participate in the NQDC plan maintained by Company A for a period of years. Can employees of Company B participate in the NQDC plan maintained by Company A once Company B is no longer in Company A's controlled group of corporations? If Company B wants to provide the same benefit post closing, does Company B need to set up its own NQDC plan that "mirrors" Company A's? What about funding - If Company B sets up its own NQDC plan, can Company B send the contributions to Company A to administer and not result in income inclusion under a constructive receipt/economic benefit theory because the contributions are no longer subject to the claims of the creditors of Company B? It seems to me that Company B can leave behind with Company A the pre-spin liabilities relating to the NQDC plan without issue. Keeping any assets related to those liabilities with Company A makes sense because Company A is responsible for payment. Post-spin participation of Company B employees in Company A's NQDC plan seems problematic but can't nail down exactly why. It also seems that if Company B sets up its own mirror plan, any funding must be left with Company B or be put in a rabbi trust that is subject to the claims of Company B's creditors. Sending contributions for post-spin obligations to Company A, or putting in the rabbi trust for the NQDC plan maintained by Company A (which is subject to claims by Company A's creditors) seems problematic because the amounts are no longer reachable by Company B's creditors.

We're a registered investment advisor to a credit union (credit union A) acquiring another (credit union B). A is acquiring B on 10/1 and plans to terminated B's 401k plan effective 10/1 as well. Since A currently maintains a 401k plan, is A's plan considered an alternative defined contribution plan to B's participants? If A moves the termination date up to 9/30, would A's 401k plan still be considered an alternative DC? Any help is appreciated!

My wife's employer is currently in the process of terminating their money purchase plan. They have schedule "meetings" for all plan participants to attend with the investment vendor. My wife's work schedule is part time and as such all of these "meetings" they have scheduled are on the days she does not work. So being a person who works in the pension industry I advised her to simply request the distribution election forms so we could fill them out and get her money rolled over to an IRA as I suspect these meetings were set up as an opportunity for the vendor to sit down with the plan participants and potentially retain the assets via the participant rollovers to the 403b plan that will remain in existence. Recently she recieved notice from her HR director stating that if she did not attend one of these meetings with the vendor, that they would suspend her and withhold her pay. Immediately I said, that is right. I am looking for some help in identifying the specific section of ERISA or DOL regulations that would constitute this action as a violation.

Initially, our client indicated they were about to be acquired (transaction date TBD in the near future). The client had asked my firm to conduct a "force-out" distribution mailing to thin out the plan before merging it to the Acquirer, and also to give some large-balance terminees an early head's up changes were brewing and to consider moving their retirement assets more directly under their individual control. Thus far into the force-out process, one partially-vested participant voluntarily took a rollover distribution of her net account balance. Now, the decision has been made to Terminate the plan prior to the corporate merger taking place. In my mind, this sort of nullifies the force-out process, and I'm sure the client would be okay, in effect, not forcing anyone out under the original force-out time frame (3/15/2013), and allowing the full vesting and plan termination distributions to occur somewhat later. My question is: Do we make whole the one participant that received a partiallly-vested distribution by reversing the forfeiture and distributing it to her IRA? That seems like the conservative thing to do, given 1. it coincides with the plan termination and would give the appearance of an ill-intended maneuvering of the plan sponsor (not their intent) and 2. people talk and so many other terminees that chose not to do anything will become fully vested it may lead to a complaint. Or, in general, what is the guidance or regulation regarding forcing out partially-vested terminated participants with a pending plan termination? Thanks!