415(m) Excess Plans

[Guest gaham]

Has anyone worked much with 415(m) excess plans? There doesn't seem to be much guidance out there on the topic but with no worries now about nondiscrimination rules applying to governmental plans, they seem to be useful for purposes of laying on top of a discriminatory 403(b) or 401(a) plans. I have two specific questions:

1. 415(m)(3)(B) prohibits a direct or indirect election to defer with respect to the 415(m) excess plan. Does this rule apply only to the excess plan? For example, if the underlying plan permits elective deferrals, is this a prohibited indirect election to defer with respect to the excess plan? What if the amounts that are to be contributed under the floor plan and the excess plan are subject to periodic negotiations? Do you avoid any problem by utilizing an irrevocable election to participate in the plans?

2. We have been advised by reputable consultants that tax free rollovers can be made to and from 415(m) plans. We can find no authority for this. Does anyone have any thoughts on this issue?