401(k) PSP deferral deposit question

[doombuggy]

Plan covers 100% owners and the employees of her small office. There were 4 people eligible for 2010 and only the owner and another employee/participant made deferrals. My concern is regarding the deposit of owner's deferrals. I have a W-2 for her, so should I assume that she is paid with some regularity?

My real question is do the safe harbor deposit rules on deferral deposits apply to her? Regardless of whether she is paid with regularity or takes draws? My problem is that all of their deposits made to the pooled account for 2010 are listed as "EE Contributions" (plan has safe harbor match) and while there was a large deposit made in January 2010, it was not large enough to cover the deferral receivable from 2009. In fact, when I add up the deposits, it takes until May 2010 to cover that receivable. While I do not have a breakdown of the deposits, you can tell that the small deposits are for the employee, and the larger ones are for the owner, due to their annual deferral reported on the W-2.

So would owner's deferrals be considered late? Thanks for your help in this argument.

[Bird]

It sounds like there's no question they are late. I don't think the DOL cares too much about owners, but there's really no excuse for someone not understanding that if they take a paycheck, and deferred money out of it, then that money out to go somewhere. And they are supposed to answer the Qs on the 5500 honestly (under penalty of perjury). On the other hand, as the TPA, a little bit of blissful ignorance about the exact contribution dates is sometimes handy if they have otherwise told you everything was deposited in a timely manner.

[K2retire]

I have always heard that an employee is an employee in the eyes of the government. The corporation is considered to be a separate entity from the owners.

[John Feldt ERPA CPC QPA]

If a deferral election was on file for the owner and the amounts did not get sent timely, then the DOL will consider it as a PT (late deferral deposit). Did the owner truly have a deferral election in place for the deferral amounts that were believed to have been late?

[doombuggy]

This client doesn't send us copies of their deferral election forms.

I have sent out the report for their 2010 safe harbor match contributions, and we have addressed the deposit topic in the letter. I think their accountant has to step in and tell us what's going on with these deposits. I obtained a list of deposits made in 2011and they are looking a little more consistant for 2011...