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Posted

Plan A is an ESOP. Pursuant to § 401(a)(28), assets derived from a "qualified participant's" diversification of employer stock is distributable immediately, i.e., in-service, but remain subject to the § 72(t) 10% tax on early distributions for participants under 59½. For administrative reasons (namely, because of its contract with Plan A's custodian), Employer wants to handle all Plan A distributions by first transfering the assets to Plan B (its 401(k) plan), then distributing them from Plan B. I see no problem with that when the event is a distributable event under both Plans, but can Plan B provide for an immediate in-service distribution of amounts that were distributable only because of the ESOP rules applicable to Plan A? As I read the in-service distriubution restrictions under § 401(k), they apply only to elective deferrals. So, the general question is, does the "distributableness" of the diversification proceeds continue to apply to the assets post-transfer? Here's an example:

Participant is age 55. She diversifies her Employer stock. The proceeds are immediately distributable, and she wants to roll them over to an IRA, despite the 10% penalty. Can Employer accomplish the rollover by transfering the proceeds from Plan A to Plan B and then rolling them over from Plan B to the IRA?

Thanks for any ideas.

Guest hussac
Posted

When money is transferred (or rolled over) from one plan to another, such money becomes subject to all of the rules of the receiving plan. Does the 401(k) plan permit in-service withdrawal of non-elective deferral contributions "at any time, in any amount, and for any reason"? If so, there is no problen with distributing the transferred money. (There is no early distribution penalty tax, however, on distributions that are rolled over to an IRA.)

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