HCE calculation following a merger

[Guest Hadden2001]

In the year following a merger, do you look back to the income of the individuals at the acquired company. Or, do you only look at current year's income and don not consider the income earned at the acquired

[Guest earthy]

Can't say for certain after reading the legislative history that followed TRA '86. Without doubt, the new "highly compensated employee" definition applied to all of the following code sections after December 31, 1988: 79, 89, 106, 117(d), 120, 127, 129, 132, 274, 401(a)(4), 401(a)(5), 401(k)(3), 401(m), 406(B), 407(h), 408(k), 410(B), 411(d), 414(m), 415©, 423(B), 501©(17), 501©(18), 505, and 4975.

Generally, code section 414(l) relates to mergers. Code Section 414(l) was not incorporated into the legislative history for purposes of plan mergers/consolidations with respect to HCE's. Why? I have no clue. 414(m) was but it applies to related employers and not Plans in merger or acquisition.

Anyone else know. This is an interesting question.

[Tom Poje]

the ERISA Outline Book says it is reasonable to

'treat any employee in the determination year whose compensation for the lookback year exceeded the applicable dollar amount with any related group member, would be treated as an HCE with repsect to all members of the related group"

see 1.156 of the 2001 edition.

there is also a discussion on two approaches to using the 20% test as well.

the book also points out there are no guidelines to your question, that the IRS is still taking comments in regards to this questions