Message Boards Digest

November 2, 2023

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

AlbanyConsultant created a topic in 401(k) Plans

Is the Ability to Roll Loans from the Plan a Protected Benefit?

"We generally write our plans' loan policies to say that in the event of a participant termination, the loan can be rolled out of the plan -- this way, if the participant finds a new plan that will take it (which is a big 'if' in its own right), they can transfer the loan to the new plan, establish payments, and not have to deal with the extra taxation. ... [We] just learned that one recordkeeping platform that we work with will not play nicely with this -- their policy is to default the loan due to non-payment and then 1099-R it. They claim it is due to a system limitation. Obviously, we have to issue new loan policies to all these plans to say that they cannot do this. So.... could this be a protected benefit and therefore not allowed to be cut back?"

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pcbenefits007 created a topic in 409A Issues

Affiliated Service Groups, 409A and ERISA

"There is a segment of a business that that is being spun-off and a new company will be the employer. The employees in the new company are being transferred as part of the transaction. The business selling off will retain 9.9% ownership in the new company and an affiliated service group relationship will exist post sale. We've settled that under 409A a bonafide separation of service will occur under the NQDC (they can get a distribution). But is it true that companies in the same service group may be treated as a single employer under the Code, but not as a single employer under ERISA? Meaning no termination of employment under the qualified plans or health plans? Should also mention that it is intended that the 'significant portion' test regarding the provided services under the 414(m) rules is met, in that threshold is 5% so we shouldn't have to aggregate employees."

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EPCRSGuru created a topic in Form 5500

Missing Auditors Report

"An employer of my acquaintance, who uses a well-respected 5500 software product, filed a number of 5500s timely. Upon checking on the government web site they discovered that the auditors' report was missing for one of their many plans--the remaining are fine. On further examination it looks as though it might have been omitted when everything was uploaded to the vendor's web site for filing. Don't know if this is system error or human error but obviously needs to be corrected. Any advice to avoid a penalty for an incomplete filing? Do they file an amended return even though none of the numbers changed? Should they contact the vendor? Other?"

3 replies so far   |    Click Here to Add a Reply

R. Butler created a topic in Form 5500

Can You Change from 5500-SF to 5500-EZ for Final Filing

"Sole owner dies in 2022. Business had participants other than the owner so 5500-SF had been filed in all years. By the end of 2022 all assets had been distributed except for the deceased owner's. They have a final filing for 2023, do they file a 5500-EZ or continue with the 5500-SF?"

1 reply so far   |    Click Here to Add a Reply

Lois Baker created a topic in Retirement Plans in General

DOL Proposed Investment Advice Package Now Scheduled for Publication in the Federal Register

"Scheduled publication date is November 3, 2023 -- which would put the close of the 60-day comment period at January 2, 2024. Links to Federal Register:

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Lauren0507 created a topic in 401(k) Plans

Optional Match True-Up Permitted by Language of Plan Document?

"A client whose safe harbor match is based on the pay period and funded each pay period would like to make a true-up this year although it is not required. The FtWilliam PPA document contained ... language which appears to allow a discretionary true-up ... The Cycle 3 document does not contain this language (at least that I can find) and only addresses required true-ups ... Does the absence of language specifically addressing a discretionary true-up preclude the client from making one? Or, can the language in the document be interpreted as the bare minimum an employer must do, but it does not preclude something more?"

4 replies so far   |    Click Here to Add a Reply

401 Chaos created a topic in 401(k) Plans

Robs Company Issuing Preferred Stock

"Company recently established using a ROBS (not our client and we aren't directly involved) is doing well and has potential investor. The investor would like to invest in exchange for issuance of preferred stock. The ROBS company has apparently told investor that because the ROBS 401(k) holds shares in the company, the company cannot issue preferred stock. Instead, they have proposed a temporary workaround whereby they will issue a debt instrument (loan agreement with de minimis interest) that will convert to preferred stock within 180 days. Investor has asked us generally if that makes sense. We don't work with ROBS and have suggested they need to find experienced counsel if they want to proceed but just curious with all of this but, in interim, just curious if this is a common ROBS issue. And, if so, does the work-around really solve for it?"

No replies yet   |    Click Here to Add a Reply

401Karina created a topic in 401(k) Plans


"If a participant's last day of service is 12/31/2022 and as of 01/01/2023 does not return to work, will a 2022 RMD be required?"

6 replies so far   |    Click Here to Add a Reply

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