"[1] Under the provisions and requirements enacted by the SECURE Act for 2020 and beyond, if an IRA owner dies in 2020 or after, and was past their RBD at the time of their death, must a designated beneficiary (who does not qualify as an eligible designated beneficiary) continue to take an annual RMD beginning by 12/31 of the year following the death of the owner, but then also deplete the account by the end of the 10th year after the death of the owner? Internal discussions in my workplace differ, some saying the RMDs are suspended at the owners death, and that the beneficiary can let the balance sit untouched for the 10 year period. Others, believe RMDs must continue but account must be depleted at 10 years. [2] If an eligible designated beneficiary or designated beneficiary (if the answer to Q1 is yes) fails to take an RMD before the owner's death, is it merely a failed RMD subject to the 50% excise tax/penalty for the shortfall, or do their payout options default to something else, like the 10 year rule?"

"409A DEFERRED income is not included in W-2 compensation for 401(k) plan purposes, right? We've got a payroll company including these deferred wages as eligible income. I could understand it if the employee was receiving taxable PAYMENTS of 409A amounts previously deferred, but this makes no sense at all for income currently being deferred."

"A client of ours filed a Form 10 with the PBGC because of a failure to meet a MRC. Basically, the client opened 2 new locations and is having a cash flow issue, but intends to make up the minimum within the next year. The client has provided all required items on the Form 10 including financial information for the company. The PBGC representative is asking for personal tax returns for the owners of the company. Have you ran across this? What was your response?"

"We have a client where a partner wants to deposit his $63k 415 limit in January of 2020. His comp will be way more than the max and we'll for sure pass all testing when the year end arrives. Because he is a HCE, can we 'fund' his employer contributions before the NHCEs are funded? Or is the only requirement that all employees be funded by the tax return due date?"

"I'm generally aware of the IRS position on 'linked' nonqualified plans, where a formula benefit under one NQDC plan would offset another NQDC plan, i.e., that they generally view any formula under a 409A-covered plan that can offset or change the amount, time, or form of payments under another 409A-covered plan as impermissible. What about where one plan is (or both plans are) exempt from 409A? For example, an employee has a short-term deferral exempt from 409A that provides a lump sum of 10 times his current base salary of $250,000 if he is still working at age 65. The payment is reduced dollar-for-dollar by the amount of any other vested nonqualified plan benefits payable to the employee. Say the employee is age 64 when the employer gives the employee a fully vested 409A-covered plan that provides 10 annual installments of $225,000 each starting at age 65. The employee would receive a payment of $250,000 upon reaching age 65, then $225,000 a year for 10 years. I don't see this as falling under the IRS's prohibition on 'linking' nonqualified deferred compensation plans. For example, Section XI.B of Notice 2010-6, generally addressing the issue, speaks only in terms of a 'nonqualified deferred compensation plan' linked to 'another' 'nonqualified deferred compensation plan.' There's only one 409A-covered 'nonqualified deferred compensation plan' that is not impacted by another one. Alternatively, say you have the same lump sum agreement but it's offset by the value of any vested 409A-exempt stock options outstanding at age 65. The options can be exercised for 10 years following termination. In that case, neither one is subject to 409A, but the parties may arguably in a sense 'defer' the lump sum by allowing the employer to give the employee options before reaching age 65 that the employee can exercise any time over the 10-year period. Apart from the linking, any argument that this is a change to the time/form of payment of the lump-sum benefit? Or an initial deferral of a short-term deferral? I don't see any explicit authority for this, except maybe general anti-abuse."

"It seems very strange to me that a sale of all assets requires a pass through vote, but a sale of all stock that accomplishes effectively the same thing does not. Is there a good reason for this? Another question: is there any law clarifying which plan participants a trustee is expected to act in the best interest of, and the meaning of best interest? A sale that multiplies the stock value is obviously in the financial interest of those close to retirement that likely have the most shares. The further from retirement an employee is, the more uncertain this is. The sale will certainly provide a short term financial benefit, but the long term effects depends on what the future growth of the company would have been without a sale. I saw a claim that in a situation where an offer was made for 10 times the ESOP's value where the purchaser built in a plan to lay off all of the employees (who are plan participants), a trustee is required to ignore the layoff aspect because they are only acting in the best interest of plan participants, not employees. I can see the logic, but this seems like a very peculiar definition of "best interest" and "plan participant" that stretches credulity."

"I am an employee in a 401(k) plan and borrowed money from the plan. I had $250,000 in plan, took a $25,000 loan and later prior to making any payments I changed jobs. I did not repay the loan and it was offset against the plan assets. The net amount of $225,000 was rolled into a new employer's 401(k). I received a Form 1099 showing the net rollover amount, coded as 'G'. I received a Form 1099 for $25,000 as both the distribution amount and the taxable amount, meaning the loan, is now taxable to me in 2019. I understand I have until the due date of my 2019 Form 1040, including extensions, to come up with $25,000 and put it into the new plan or into an IRA, and that in effect the entire $250,000 would be deemed rolled over and no taxable income would result because all of the plan had been rolled over. My broker said I could take another loan from the new 401(k) plan (which received the net amount of $225,000) for $25,000 and put that $25,000 into another 'Rollover IRA' and that it would qualify as a repayment of the loan or would be considered as part of the original rollover preventing tax due on the plan loan. This doesn't seem correct because the original plan loan was not repaid, the plan was not put back into its original position of $250,000, the 2nd $25,000 was borrowed from the net rollover, and the net rollover is pre-tax income (which I read cannot be used to repay a plan loan). Will it be considered as a complete rollover, even if the $25,000 came from pre-tax net rollover funds?"

"I understand that the IRS position is that amounts are not subject to a substantial risk of forfeiture if the future service is less than 2 years. So let's say all contriubtions made between 2020 and 2025 will vest on 12/31/2025. What about contributions that accrued during 2024 and 2025? Obviously there is a significant risk of forfeiture with this arrangement. But is there a significant risk with respect to the 2024 and 2025 contributions? I think in practice this is quite common because 'cliff vesting' is quite common."

"I have a client with a closely held C-corporation who is deferring most/all of his income into a NQDC plan. The earning that are put aside/'invested' for him are put into an index fund. He would like to have the NQDC fund lend him money. I don't believe this would work in an audit. His tax attorney states that the NQDC plan would be making a loan with interest/principal to be paid as lump sum in the future (20 years from now), similar to a mortgage. This sounds like a scheme to me that would not be in the best interest of the client. Your thoughts?"