Transfer of plan assets from 414(h) to 401(k)

[Guest Scott Holechek]

A hospital with a 414(h) pick-up provision has now been bought by a for-profit organization that has a 401(k). Can the assets be transferred to the 401(k)? Is so, are there any rulings or IRS guidance supporting this?

[Carol V. Calhoun]

If the defined benefit plan is being terminated, employees could be given a chance to take their benefits in the form of either cash or annuity contracts. Under Code section 401(a)(31), employees could then choose to have the cash directly rolled over to any qualified plan or IRA which permitted rollovers. Provided that the 401(k) plan permitted (or was amended to permit) rollovers, the employees could elect to have the money transferred there.

However, a direct transfer without the employee's consent could raise some issues. In a nongovernmental context, the right to receive a defined benefit rather than an account balance is treated as a protected benefit under the section 411 regulations. That is not true with respect to governmental plans (since they are exempt from most of section 411 under section 411(e)(2)). However, you indicate that the hospital has already been bought by the for-profit. If the for-profit has taken over the plan, it would presumably have become subject to section 411. Even if it has not, the rules for what happens if a governmental plan transfers to a nongovernmental plan are murky indeed.