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August 3, 2021

Here are the most recently added topics on the BenefitsLink Message Boards:

WHMIII created a topic in Continuing Professional Education

Practice Tests for CPC Exam?

"I've completed all the required modules and have registered for the exam in November. I can't find any practice tests anywhere and I understand the essay format. Are there any recent test takers out there that can shed light on their preparation and what to expect as far as the actual exam goes? Thanks!"

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Luke Bailey created a topic in Retirement Plans in General

Does a controlled group member need to adopt the group's plan if the plan document says that it includes controlled group members automatically?

"Standardized preapproved plans are required to cover all controlled group members, but their adoption agreements usually provide for each controlled group member to execute the plan document, typically by using a page called a "Participating Employer Addendum." Having the "non-lead" employer sign an addendum to make clear its agreement to be included in the plan makes a lot of sense for collateral reasons (e.g., having a state law basis for requiring the controlled group member to pay its share of the plan's costs, including contributions other than elective deferrals; deductibility under Section 404 of contributions made by the controlled group member), but is it necessary to satisfy the Code? IRC secs. 414(b) and (c) state that the controlled group members are considered a single employer for purposes of Section "401" of the Code, thus seeming to forestall any argument that separate adoption by each controlled group member is necessary to satisfy the exclusive benefit rule. Derrin Watson in Q 10:2 of the 6th Edition of "Who's the Employer" states unequivocally, I think, his conviction that adoption of the plan by the controlled group member is not required, and I'm inclined to agree with him, but because he cites no direct authority for this conclusion, I'm trying to gauge whether others have experience in the marketplace with IRS or other practitioners that would push back on this conclusion. If separate adoption by the controlled group member is not required, then it would appear that an employer in a controlled group can potentially solve a 2020 410(b) problem created by a missed controlled group situation through the adoption in 2021 of a 1.401(a)(4)-11(g) amendment, I think."
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Luke Bailey created a topic in Retirement Plans in General

What Is a 'Disposition or Acquisition' for Purposes of 410(b)(6)(C)?

"For many years, individuals A, B, and C own Corp. X 1/3, 1/3, 1/3, while A and B own Corp. Y 50-50. Also for many years, Corp. Y has a 401(a) plan that has not been adopted by Corp. A. Assume no affiliated service group has ever existed among X and Y. In 2020, C retires and Corp. X redeems C's stock. For remainder of 2020, through today, A and B each own 50% of both Corp. A and Corp. B, so Corp. A and Corp. B comprise a brother-sister controlled group of corporations under IRC sec. 414(b). The text of IRC sec. 410(b)(6)(C) says that the 1- to 2-year grace period rule applies when a company "becomes, or ceases to be" a member of a controlled or affiliated service group, which would literally cover the above fact situation, especially when one considers that in the redemption Corp. X acquired C's stock. However, the caption of IRC sec. 410(b)(6)(C), which could be used by a court in interpreting the provision, says that the rule applies to "CERTAIN DISPOSITIONS OR ACQUISITIONS," and Treas. Reg. 1.410(b)-2(f) says that for purposes of the rule, "the terms 'acquisition' and 'disposition' refer to an asset or stock acquisition, merger, or other similar transaction involving a change in employer of the employees of the trade or business." Thus, at least arguably, the provision's caption and the reg narrow the application of the rule to only those situations in which an employer becomes or ceases to be a member of a controlled group as part of what we would otherwise refer to as a "merger or acquisition." Moreover, the legislative history (at least the TRA '86 Blue Book) of 410(b)(6)(C) would seem to support such a narrow(er) interpretation, because the first sentence of its discussion of the change to 410(b) is, "The Act contains a special transition rule for certain acquisitions or dispositions of a business." I reviewed Q 11:2 of the 6th Edition of Derrin Watson's "Who's the Employer," and I think it quite reasonably punts on this question, so I am looking to see whether others have had experience with this issue in the marketplace or have experience with arguing the issue with IRS."

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TMcfall created a topic in 401(k) Plans

Can Foreign Employees Participate in Us 401(k)?

"We have a company that is a US based company with the majority of their employees residents of the US. However, they have a number of employees that are residents of the Philippines. Are the employees located in the Philippines able to participate in the 401(k) plan?"

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Lou81 created a topic in Retirement Plans in General

Required Minimum Distribution Calculation for Beneficiaries

"hello! I have a participant over age 72 that passed away in 2020. The RMD was waived in 2020 His spouse (beneficiary) passed away in 2021. She was over age 72 as well. The 3 children are the beneficaries. RMD is required for 2021, based on 12/31/2020 value. Whose date of birth would the RMD be based on? I appreciate your help!"

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