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June 10, 2024

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

youngbenefitslawyer created a topic in 401(k) Plans

401(k) Plan Operating Like an ESOP and Stock Unfunded / No ESOP Provisions: VCP?

"Plan has been operating like an ESOP by issuing participants employer stock (not publicly traded) that is not funded. When an employee terminates his / her employment, the stock is not returned to the company but is reallocated to remaining participants. No written procedures on how the stock is managed. Now having trouble paying distributions. Can such issues be corrected although not specifically contemplated under the VCP or DOL VFCP?"

1 reply so far   |    Click Here to Add a Reply

AlbanyConsultant created a topic in 401(k) Plans

Two 'Owner Only 401(k) Plans' in the Same Business?

"Business (don't know yet if it's a partnership or an S-corp) is owned by two brothers. Maybe 50/50. They have no other employees. The financial advisor set each one of them up with an 'owner only 401k plan' from a brokerage house, each in one brother's individual name. My first thought was 'Hey, that's not right.' And, sure, it isn't. But.... is there a way that it COULD have been done correctly? A business can sponsor more than one plan. Each plan excludes.... the other brother, an HCE. If they had set up the plans as Business Plan One and Business Plan Two, there's no coverage issue, no matter what kind of [defined contribution] contributions are done. And then you have.... two legit one-person plans? This sounds crazy. Sure, you'd have to start filing two 5500-EZs when the combined total is $250K+, but can you really get away with this for a few years? Is it worth it? Whoa. Of course, it wasn't set up correctly, and each brother has $400K+ in their 'own plan' and no 5500-EZs (or -SFs) have ever been filed, so we've got a bunch of things to look at and fix, but.... is this a legit strategy if done correctly?"

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CFP created a topic in 401(k) Plans

Should Disabled But Working Employee Enroll in the 401(k)?

"Long term permanently disabled since childhood, on SSI, full time worker for client company. We just installed a new 401k plan at the company. Should the disabled employee participate? Our fear is that participation could end up costing the employee on his SSI benefits. That would be a bad deal for the employee, even with a very generous match. But I can't find anything saying that for sure. Anyone ever deal with this before?"

3 replies so far   |    Click Here to Add a Reply

pwitt created a topic in Defined Benefit Plans, Including Cash Balance

Can Payment of a 'Benefit' Be Rescinded/Revoked/Voided If a Beneficiary Makes a Material Misrepresentation to Plan Admin?

"Can a primary beneficiary, or for that matter ANY beneficiary have their right to a 'benefit' voided/rescinded/revoked/etc. if said beneficiary makes a material misrepresentation (signed written statement/assertion under penalty of perjury) to the Plan Administrator AFTER the original Plan Participant has passed (died) and before a 'payout' has been made by the Plan/Plan's Administrator under the terms of said (ERISA-covered) Defined Benefit Plan? Any thoughts and especially legal case citation would be IMMENSELY appreciated!"

3 replies so far   |    Click Here to Add a Reply

Mark Va created a topic in 403(b) Plans, Accounts or Annuities

403(b) Plan Irrevocable Election

"As a resident physician of a NYS hospital, making only 75k per and loaded with 500k of debt, my son-in-law made a one-time only, irrevocable election on the 403(b) plan of just 5% during the first day of orientation, without realizing what the future consequences could be. Now 5 years later, after finishing a one year fellowship in Vanderbilt Univ Hospital in TN, the same NYS Hospital has offered him a lucrative contract as a board certified physician. However, he didn't even recall signing the original irrevocable 403(b) form on his first day 5 years before, nor did anyone explain what the loss consequence could be if he later took a full position after residency. (He was obviously very poor, struggling and loaded with debt at the time he signed.) Is there any way, or is there any precedent in altering this one-time only election."

1 reply so far   |    Click Here to Add a Reply

ERISA-Bubs created a topic in 409A Issues

Performance-Based Compensation

"Does it matter if performance-based compensation is substantially certain to be paid at the time of the deferral election? I know the regulations only state that it cannot be considered performance-based compensation if the performance criteria are substantially certain to be met at the time the criteria is established. Does it matter if the criteria is substantially certain be met at the time of the election? For example, if the criteria is not substantially certain to be met at the time the criteria is established, but all the criteria is met by the time the election is made (i.e. 6 months prior to the end of the performance period), is the compensation still performance-based at that time?"

2 replies so far   |    Click Here to Add a Reply

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