Subscribe (Free) to
Daily or Weekly Newsletters
Post a Job

Featured Jobs

Retirement Plan Relationship Manager – DB or DC Focus

Trinity Pension Consultants
(Remote / Akron OH / AL / IN / KY / MO / TN)

Trinity Pension Consultants logo

Retirement Plan Administrator

Hicks Pension Services
(Remote)

Hicks Pension Services logo

Chief Pension Actuary

Loren D. Stark Company
(Remote)

Loren D. Stark Company logo

Plan Administrator

Aimpoint Pension
(Remote / Pompano Beach FL)

Aimpoint Pension logo

Manager - Defined Contribution Plans

M2B Retirement Consulting LLC
(Remote / Wexford PA)

M2B Retirement Consulting LLC logo

Senior Defined Contribution Account Manager

Nova 401(k) Associates
(Remote)

Nova 401(k) Associates logo

Compliance Specialist II

EPIC RPS
(Remote)

EPIC RPS logo

DB/DC Administrator

Primark Benefits
(Remote / San Mateo CA)

Primark Benefits logo

401(k) Retirement Plan Administrator

Midwest TPA with Remote Workforce
(Remote / Beachwood OH)

DC Administrator

United Benefit Pensions Inc.
(Remote / Melville NY)

United Benefit Pensions Inc. logo

Director of Pension Administration

Primark Benefits
(Remote / San Mateo CA)

Primark Benefits logo

Retirement Plan Administrator

CMC Pension Professionals
(Remote)

CMC Pension Professionals logo

Distribution \ Loan Clerk

Retirement, LLC
(Remote / Oklahoma City OK)

Retirement, LLC logo

Enrolled Actuary

Loren D. Stark Company
(Remote)

Loren D. Stark Company logo

Plan Administrator Consultant

Jocelyn Pension Consulting
(Remote / Boulder CO)

Jocelyn Pension Consulting logo

Site Manager / Senior Administrator

Nicholas Pension Consultants
(Remote / AZ / ID / NM / NV / UT)

Nicholas Pension Consultants logo

Pension Administrator

MGKS
(Remote / Phoenix AZ)

MGKS logo

View More Employee Benefits Jobs

Free Newsletters

“BenefitsLink continues to be the most valuable resource we have at the firm.”

-- An attorney subscriber

Mobile App image LinkedIn icon
Twitter icon
Facebook icon

BenefitsLink > Q&A Columns >

Who's the Employer?

Answers are provided by S. Derrin Watson, JD, APM

Rev. Proc. 2002-21 Relief For Multiple Employer Plans

(Posted May 6, 2002)

Question 173: With regard to a PEO "single employer" plan, does the new revenue procedure provide any relief from possible violaitons of 410(b), ADP/ACP and the like? Most of it deals with the exclusive benefit rule but there is a special rule for terminating plans in Section 4.03; if a single employer PEO plan terminates, does it get a complete pass on all of these other compliance issues?

Answer: This is one of the most awkward parts of Rev. Proc. 2002-21, and I allude to it in Q&A 166.

As part of the relief offered by the Rev. Proc. to PEO Retirement Plans that comply with its provisions, Section 4.03 says:

For the purpose of determining whether a PEO Retirement Plan or Spinoff Retirement Plan satisfies the qualification requirements in § 401(a) upon plan termination (as described in section 5.06), Worksite Employees may be treated as if they were employees of the PEO.
I spoke with the author of the Rev. Proc., and she said that this clause was intended to apply to all compliance issues, not just to the exclusive benefit rule. (Of course, that isn't binding on the IRS, but it is a reasonable interpretation.)

That doesn't amount to a free pass, however. It simply says, in effect, that if you have been testing the plan hitherto as though the Worksite Employees were employees of the PEO, you don't need to rerun those tests for purposes of determining whether a terminating PEO plan or spinoff plan is qualified.

You are correct; there is no comparable clause for a PEO that chooses to convert its plan to a multiple employer plan. I give a detailed example of why this is a problem in a multiple employer plan in Q&A 165. Continuing that example, if that same employer were to terminate its plan instead of converting to a multiple employer plan, there would be no 410(b) issue. The terminating plan would be able to rely on Section 4.03 to insulate it from liability so long as it complied with the Rev. Proc.

What issues would be covered by Section 4.03? Any issue in which it makes a difference whether the PEO or its client is the employer. So it would deal with 410 participation and coverage, 411 vesting, 415 limits, 416 top heavy rules, 401(k) distribution restrictions, the ADP test (both for purposes of determining whether the plan satisfies 401(a)(4) and for purposes of determining whether the 401(k) feature is valid), the ACP test (again, both for nondiscrimination and for testing the validity of the match), safe harbor 401(k) issues, etc.

The lack of any such comprehensive provision for a continuing plan that converts to multiple employer status is a major disincentive for adopting such plans. This is one of many questions and issues the IRS should resolve as it considers future guidance on this issue.


Important notice:

Answers are provided as general guidance on the subjects covered in the question and are not provided as legal advice to the questioner or to readers. Any legal issues should be reviewed by your legal counsel to apply the law to the particular facts of this and similar situations.

The law in this area changes frequently. Answers are believed to be correct as of the posting dates shown. The completeness or accuracy of a particular answer may be affected by changes in the law (statutes, regulations, rulings, court decisions, etc.) that occur after the date on which a particular Q&A is posted.


Copyright 1999-2017 S. Derrin Watson
Related links:

(restricted access)

(restricted access)

© 2022 BenefitsLink.com, Inc.