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Hi to All, We have a plan drawn up by a local ERISA attorney that is a tribal non-ERISA 401(k) plan. One of the participants routinely exceeds the 402(g) limit by about $1,300 each year. We bring it to the attention of the plan administrator and ask them politely to please monitor this carefully and stop doing it, but we are ignored. If this was a regular corporate 401(k) plan of any of our other clients covered by ERISA, we would get in touch immediately upon the discovery of the error and let them know that the excess plus earnings has to be removed. We haven't done that so far with this client because they are a tribal entity, the plan isn't covered by ERISA, and we don't know to what extent they have to follow the rules. Does anyone else have any experience with this or insight as to how to handle it? Thank you as always.

Hi All - I recently saw 403(b) Plan documents stating that that it is a non-ERISA Plan. I am looking for some clarification related as to whether it is in fact a non-ERISA 403(b) Plan. (The documents were from 12/2008.) The documents state: WITHDRAWAL RESTRICTIONS: Except in the case of hardship, disability & distributions [from a separate account under a TSA for rollover contribution...] no distribution will be made to a Participant under any TSA maintained under the Plan until the Participant has attained age 59 & 1/2 or had severance of employment with Employer ... whichever is earlier. HARDSHIP WITHDRAWALS: As part of its certification, each Provider must agree that it will not approve any hardship withdrawal unless the participant has provided the Provider with specific information to support the existence of an immediate & heavy financial need that qualifies for hardship withdrawal and the amount necessary to meet the financial need. In the absence of information to the contrary, the provider may rely on a Participant's representation that the immediate & heavy financial need may not be reasonably satisfied from other sources. However, the Provider must promptly notify the Employer (or designated representative) of any hardship withdrawal by a Participant. The Employer will notify the Provider if the Employer has information inconsistent with the Participant's hardship request, and the Provider must agree to take corrective action if so notified. A Participant will not allowed to make salary reduction contributions during a 6-month period commencing no later than 30 days after the date such Participant receives a hardship withdrawal under a TSA. DISABILITY: As part of its certification, each Provider must agree that it will not make any distribution to a Participant by reason of disability unless the Provider has received satisfactory evidence that the Participant has become disabled within the meaning of Code section.... While it appears that the language in the documents is statutory in nature, I want to be certain that the Plan document(s) are not violating the rule that "all rights under the contracts & custodial accounts are enforceable only by the participant" as is required for non-ERISA PLans. What do you think? Also, if you think the Plan is non-ERISA, do you believe that no Form 5500 needs to be filed, even if the total PLan assets exceed $250,000 (over $500,000) w/ 15 paticipants? Your comments are appreciated. JD