403(b) documents on ftwilliam.com. By: Aimee Nash September 3, 2008
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1 403(b) documents on ftwilliam.com By: Aimee Nash September 3, 2008
2 Agenda Questions Overview of 403(b) frequently asked questions 403(b) unique features ERISA or not ERISA? Types of churches under 403(b) Nondiscrimination Transfers, exchanges, rollovers Information sharing agreements Plan termination vs. freeze Distribution basics recurring part-year comp (teachers) and 409A/457(f) ftwilliam plan documents Full Scope plan (ftwilliam) Limited Scope plan (ftwilliam) ftwilliam.com software introduction 2
3 403(b) features 3 Plan Sponsor Types Public School (PS) Non-profit, 501(c)3 For the benefit of a minister Special Catch-up for 15 years of service w/ qual org (in addition to age 50 catch-up) Plan Doc requirement No IRS plan doc approval program Post-severance nonelective contributions allowed (up to 5 yrs) 3
4 ERISA 4 Is the Plan subject to ERISA? Governments and Church Plans exempt (Churches can elect to be covered 410(d)) Non-profits must follow safe harbor if not Church or government to be exempt ERISA implications 5500 filing requirement, SPD QJSA, retirement age restrictions, claims requirements, etc. state law preemption
5 Non ERISA option for Nonprofits (that are not govt or church plans) Background If 403(b) is established or maintained by employer subject to ERISA 29 CFR (f) non-erisa 403(b) safe harbor issued in 1979 New final regs (July 2007) does the safe harbor still apply? FAB : yes, with some clarifications 5
6 Non ERISA option for Nonprofits 29 CFR (f) safe harbor Participation completely voluntary for employees Right enforceable solely by employees Employer receives no compensation/consideration for offering plans Employer involvement limited: Permitting vendors to publicize products to employees, Summarizing/compiling info re vendors avail Collecting salary reductions and remitting to vendors Holding group annuity contracts in the employer's name Limiting vendors available to employees (to a number and selection designed to afford employees a reasonable choice in light of all relevant circumstances, listed factors) 6
7 FAB interpretation of 29 CFR (f) 7 Employers can: perform duties as necessary to ensure tax compliance (nondisc, max contrib limits), adopt a 403(b) plan, perform information collection and compilation duties, terminate a plan and still meet the safe harbor
8 FAB interpretation of 29 CFR (f) cont. 8 The employer can not have responsibility for, or make, discretionary determinations in administering the program. This includes (as examples): authorizing plan-to-plan transfers, processing distributions, satisfying applicable joint and survivor annuity requirements, making determinations regarding hardship distributions, making determinations regarding QDROs, and eligibility for or enforcement of loans Negotiate with vendors to change the terms of their products... such as setting conditions for hardship withdrawals Allocation of discretion permitted: The documents should correctly describe the employer s limited role and allocate discretionary determinations to the annuity provider or other third party 1.403(b) 3: plan is permitted to assign admin functions to third party for whom a substantial portion of their duties are admin of the plan.
9 Church plans under 403(b) ERISA Church Plan Churchrelated org FICA Church definition ERISA (3(33)) Code 414(e)(3) Code 3121(w)(3) 9 Implications for 403(b) Exempt from ERISA 403(b)(9) RIAs; qualified org - special 403(b) catch-ups Exempt from: Univ Avail and nondisc
10 403(b) Nondiscrimination 10 Depends on type of plan sponsor Elective deferrals NO ADP test Universal Availability applies (except FICA Churches) Employer contributions No nondiscrimination applies if FICA Church No nondiscrimination (except 401(a)(17)) if govt plan Otherwise: 401(a)(4), (5), (17), (26); 401(m) (ACP); 410(b) apply
11 Universal Availability Notice given at least once per year of right to elective deferral limited exclusions allowed: Employees eligible for another 403(b), 457(b) or 401(k) plan NRAs students performing 3121(b)(10) services (school, college, university) less than 20 hours per week (employer reasonably expects less than 1,000 HOS in 12 months) 11
12 transfers, exchanges, rollovers 12 Transfer: Participant is an Employee or former Employee of the Plan Sponsor with/without the consent of the affected Employees distribution restrictions as stringent as those in the transferor plan both plans must allow for transfer permissive service credit transfers - gov t DB plan only Exchange: fund not specifically approved by the Employer distribution restrictions as stringent as those in the transferor plan information sharing agreement required Rollover in/out: rollovers in need not be allowed under the plan at option of Participant at distributable event rollovers in: eligible plans can be restricted (403b, IRAs, all eligible plans) Direct/mandatory rollover rules apply (out)
13 Information Sharing Agreements Term information sharing agreement (ISA) never used in final regs - Rev Proc When is ISA required? Regulations require ISA for contract exchange on/after 9/24/07 Rev Proc covers exchanges before 9/24/07 (Section 8) 13
14 ISAs continued 14 contracts issued after December 31, 2004 and before January 1, 2009 for active employees: employer must make reasonable, good faith effort" to arrange ISA Vendor should make attempts to contact the employer before making a distribution or loan and exchange any information that may be necessary to meet 403(b) if the employer has not contacted the vendor/issuer. for former employees or beneficiaries: vendor required to make "reasonable efforts" before making a distribution / loan. Employer is not required to make a reasonable, good faith effort to include the contract as part of the employer's plan.
15 ISAs continued Contracts issued before January 1, 2005 or before September 24, 2007 pursuant to Revenue Ruling (issued to vendors that were not specifically approved under the plan): Employers and vendors with both of these types of contracts are not required to exchange information. Grandfathering rule takes into account employers will not have adequate information about these contracts' existence. These grandfathered contracts are not required to be maintained pursuant to a plan. 15
16 ISAs continued When is ISA not required? contracts under the plan transfers These situations may realistically require ISAlike arrangements 16
17 Plan Termination vs. plan freeze Plan Termination Must distribute accumulated benefits under the plan as soon as administratively practicable All of the contracts issued under the plan must satisfy the requirements of final regulations (other than plan doc) May immediately/concurrently start 401(k) plan Freezing a plan must still maintain a document must still file 5500s if subject to ERISA 17
18 Distribution basics Elective deferrals / Custodial Accounts Severance from Employment, death, disability, age 59 1/2 Annuity contracts Severance from Employment, other event (stated age, disability, fixed number of years) Required minimum distribution rules apply 18
19 Notice (f) and 409A: recurring part-year compensation No 457(f) or 409A deferred compensation if: no pay deferred beyond the last day of the 13th month following the beginning of service period Pay deferred from one taxable year to another is not greater than 402(g) limit ($15, ) must agree to defer before the service period begins Example: 8/1/08-5/31/09 school year w/ $186,000 salary Earn: $93,000 in 2008 and 2009 (5 months in each year) Pay: $77,500 in 2008 and $108,500 in 2009 $15,500 paid in 2009 that is earned in
20 ftwilliam.com 403(b) documents Full Scope Limited Scope ftwilliam.com software
21 Full Scope Plan 21 ERISA or non-erisa (govt/churches) option Elective deferrals (including Roth) Voluntary contributions Matching contributions Nonelective Contributions Loans, Hardship and other in-service withdrawals Other features: QACA / traditional automatic enrollment EACA Uses model language and 401k volume submitter language (fav letter) whenever possible/appropriate
22 Limited Scope Plan Non-ERISA only Elective deferrals (including Roth) Loans, Hardship and other in-service withdrawals Individual Agreement btw vendor and plan State law rules Other features: Traditional automatic enrollment EACA Based very closely on IRS model document 22
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