"Any payroll based deposit program is subject to the vagaries of an employer's cash flow, and this will be a particularly acute problem in the small employer marketplace ... [Will] auto-IRA participants then would be left unprotected if ERISA doesn't apply? ... There is a variety of state law criminal and civil causes of actions which can be taken against bad acting employers who don't make timely deposit of auto-IRA [contributions]. But, almost surprisingly, there is the possibility that the DOL and the IRS still may have jurisdiction over these deposits under (of all things) the Tax Code's prohibited transaction rules-even if ERISA does not apply."

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