Investment no longer offered to staff, but HCE contributes; BRF issue?

[BG5150]

Plan at one time offered an annuity product as an investment to all.  After a while, they stopped offering to participants.

At the moment, the owner is the only one in the investment and he is making contributions therein.

Is this a BRF issue in that he's the only one allowed in the investment?  Or is it ok, because at one time it was offered to everyone and is now, for the plan, closed to new investors?

[ERISAAPPLE]

It has been a while since I looked at issues like this.  My recollection is that if the restriction is imposed by the investment vehicle, it is OK.  If the restriction is imposed by the plan, I think you may have a problem.  It would be different if nobody were to allowed to invest new money.  If I recall correctly, when you eliminate a BRF, but some feature of that eliminated BRF continues to apply to the already-accrued benefit, you meet the BRF rules if that feature only applies to the already-accrued benefit.  Consider a different BRF.  If you eliminated a different BRF, such as a plan loan, but allowed the owner to get a loan on new money, it seems to me that would clearly be an issue.  Look in the BRF regs.  I'm pretty sure they discuss how to address the elimination of BRFs.    

[Peter Gulia]

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