I have written often of the large impact of the small, the concept of "minimum necessary change" to accomplish what needs to be done, and have noted a number of regulatory instances where this has been-and not-accomplished.
This whole idea of small rules meaning much also has relevance in the Multiple Employer Plan world, in some very key ways. Some meaningful MEP minutiae:
Employer responsibility. One of the ongoing concerns related to MEPs which has garnered much discussion is the level of responsibility which remains with the adopting employer, an issue noted by Ass’t Sec’y Borzi in her recent testimony before the Senate Aging Committee. Interestingly enough, the IRS Form 5330 also speaks to this point. This form, which s used to report and file prohibited transaction penalties related to the late deposit of elective deferrals into a 401(k) plan, is required to be filed and signed by the offending participating employer in the MEP, not the Lead Sponsor (though it must be reported on the 5500 by the Lead Sponsor). The 4975 penalty tax is on that participating employer which is mishandling the deferrals.
An employee. One of the more lively discussions had always been whether the lead plan sponsor of the MEP needs to have an employee covered by the plan. Though some have legitimately taken the position that it should be possible under current law to not have an employee, a small rule seems to get in the way. A note on page 3 of the Form 5300 (used to file for an IRS determination letter for the plan) Instructions states "if an employer has no employees, the taxpayer cannot submit as the sponsor of the plan." This seems to require the Lead Sponsor of a MEP requesting the letter to have an employee as a condition of filing for the letter.
One bad apple. One of the risks in adopting a MEP is that, under IRS rules, a single bad plan can disqualify the entire MEP. What minutiae is critical here, though, is Section 10.12 of EPCRS (the IRS’s correction programs): a MEP which has a violating plan sponsor is fixed by fixing only the broken portion of the MEP (of course), but the Plan Administrator may elect to have the compliance fee or sanction based only upon the offending plan, not based on the entire arrangement; while 14.03 permits similar treatment for "tainted" assets transferred into the plan from an offending plan (if the offense does not continue). As a practical matter, this means the risk of an economic catastrophe from a single employer disqualifying an entire MEP can be cost effectively managed.
On a personal note, an important milestone. The Toth Ft. Wayne Sourdough Starter had its 10th anniversary this past week, being cultivated from the wild yeast in our kitchen and first used by our daughter and I on April 11, 2002. Looking, eventually, for it to be passed onto the grandkids for their eventual baking pleasure as well. Life is good….
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