Table of Adjusted Penalties for Violations of Select ERISA Requirements

The below table reflects the DOL's 2019 annual inflation adjustments to the civil money penalties for violations of certain requirements under ERISA, effective January 23, 2019.

ERISA Provision	Description of Violation	Maximum 2019 Penalty (As Adjusted)
ERISA § 209(b) (29 U.S.C. §1059(b))	Failure to furnish certain reports (such as pension benefit statements) or to maintain records	$30
ERISA § 502(c)(2) (29 U.S.C. § 1132(c)(2))	Failure or refusal to properly file a plan's annual report (Form 5500)	$2,194
ERISA § 502(c)(4) (29 U.S.C. § 1132(c)(4))	Failure to (i) notify participants of certain benefit restrictions or limitations under Internal Revenue Code (Code) Section 436(f); (ii) for multiemployer plans, (A) provide certain financial and actuarial reports and (B) provide estimates of withdrawal liability; and (iii) furnish automatic contribution arrangement notices (QACA notices) (see Standard Document, Safe Harbor Notice for Qualified Retirement Plans with Optional QACA Provisions)	$1,736
ERISA § 502(c)(5) (29 U.S.C. § 1132(c)(5))	Failure of a multiple employer welfare arrangement (MEWA) to file an annual report	$1,597
ERISA § 502(c)(6) (29 U.S.C. § 1132(c)(6))	Failure to provide information requested by the Secretary of Labor under ERISA Section 104(a)(6)	$156 per day, not to exceed $1,566 per request
ERISA § 502(c)(7) (29 U.S.C. § 1132(c)(7))	Failure to provide a required blackout notice and notice of right to divest employer securities (see Standard Document, Blackout Notice)	$139
ERISA § 502(c)(8) (29 U.S.C. § 1132(c)(8))	Failure of multiemployer plan in endangered status to adopt a funding improvement plan (or if in critical status, a rehabilitation plan) Failure also applies to an endangered status plan (that is not a seriously endangered status plan) that fails to meet its benchmark by end of funding improvement period (see Practice Note, Multiemployer Pension Plans)	$1,378
ERISA § 502(c)(9)(A) (29 U.S.C. § 1132(c)(9)(A))	Per day failure by an employer to inform employees of CHIPcoverage opportunities under ERISA Section 701(f)(3)(B)(i)(l) (each employee a separate violation)	$117
ERISA § 502(c)(9)(B) (29 U.S.C. § 1132(c)(9)(B))	Per day failure by a plan to timely provide to any state information required to be disclosed under ERISA Section 701(f)(3(B)(ii) (each participant or beneficiary a separate violation)	$117
ERISA § 502(c)(10) (29 U.S.C. § 1132(c)(10))	Failure by any plan sponsor of a group health plan, or any health insurer offering coverage in connection with the plan, to satisfy ERISA's requirements regarding genetic information (multiple subparts) (see Practice Note, GINA Compliance for Health and Welfare Plans)	$117 $2,919 $17,515 $583,830
ERISA § 502(c)(12) (29 U.S.C. § 1132(c)(12))	Failure of a Cooperative and Small Employer Charity (CSEC) plan sponsor to establish or update a funding restoration plan	$107
ERISA § 502(m) (29 U.S.C. § 1132(m))	Prohibited distribution under ERISA Section 206(e)	$16,915
ERISA § 715 (29 U.S.C. § 1185dand 42 U.S.C. § 300gg-15)	Failure to provide required Affordable Care Act (ACA) summaries of benefits and coverage (SBCs) (Section 2715 of the Public Health Service Act; 42 U.S.C. § 300gg-15) (see Practice Note, Summaries of Benefits and Coverage Under the ACA)	$1,156

Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

New IRS Fees for Private Letter Rulings, Plan Terminations, EPCRS -VCP submissions

New Fees

Internal Revenue Service ("IRS") issued Revenue Procedure 2019-1, Revenue Procedure 2019-2, Revenue Procedure 2019-3, Revenue Procedure 2019-4, Revenue Procedure 2019-5 and Revenue Procedure 2019-7.

These Revenue Procedures became effective January 2, 2019, and update the annual Revenue Procedures, which set forth the procedures for Determination Letter requests and Private Letter Ruling requests.

• ·        User fee to submit a request for a Private Letter Ruling, under the jurisdiction of the Associate Chief Counsel, will be increased from $28,300 to $30,000,
• ·        Effective July 1, 2019, the user fee to submit an Application for Determination for a Terminating Plan (IRS Form 5310) will be increased from $2,300 to $3,000.
• ·        User fee to submit a request for a Private Letter Ruling, under the jurisdiction of the Employee Plans Office, remains at $10,000;
• ·        User fee to submit a request for a determination letter for an individually designed plan remains at $2,500;
• ·        User fee for regular submissions, under the Voluntary Correction Program ("VCP") under the Employee Plans Compliance Resolution System ("EPCRS"), remains the same ($1,500 for plans with assets of $500,000 or less.
If you need assistance with these procedures, please do not hesitate to contact our offices


Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

The "Fake IRS" Approved IRA Investments

 Fraudulent “IRA Approved” Sales Pitch
“This investment has been approved for your IRA. You can use your IRA for this investment by filling out the forms in the attached information package, and our agent will take care of the rest. This has been reviewed by the government (or IRS).
This investment is so safe you can use it for your IRA. Only certain investments are approved for IRAs.”

The IRS ONLY issues letters to IRA sponsors, trustees, or custodians  to certify they are complying with requirements concerning investor rights, account administration, and standards for documents that allow deductible contributions.
The IRS does not:
„ review or approve investments.
„ endorse any investments.
„ advise people on how to invest their IRAs.

 North American Securities Administrators Association recommends:"
„ Exercise extra caution during the tax season when it comes to making IRA investments.
„ Avoid any investment touted as “IRA Approved” or otherwise endorsed by the IRS.
„ Don’t buy an investment on the basis of a television “infomercial” or radio advertisement.
„ Beware of promises of no-risk, sky-high returns on exotic investments for your retirement account.
„ Never transfer or rollover your IRA or other retirement funds directly to an investment promoter.
„ Proceed with caution when you are encouraged to invest in a “general partnership” or “limited liability company.”
„ Don’t be swayed by the fact that a bank or trust department is serving as an IRA custodian.
„ Always check out an investment and promoter before you turn over your money."


Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

Relief from 401k Loan, Contribution and Distribution Regulations

Relief for Plan Sponsors and Participants Affected by Hurricane Harvey

 The IRS issued Announcement 2017-11 for participants and plan sponsors affected by Hurricane Harvey.

Specifically: 

LOANS AND WITHDRAWALS

Plans that do not have the language may grant loans and/or hardship withdrawals between August 23, 2017 and January 31, 2018.
The plan administrator can grant the loan or hardship withdrawal before the normal document and procedure requirements are satisfied.  If applicable, normal spousal consent rules continue to apply.
The 6-month employee deferral suspension normally required for hardship withdrawals are not applicable.

CONTRIBUTIONS
The Dept Of Labor will not consider it a violation if the contribution / loan repayment deposit is delayed solely due to Hurricane Harvey, provided the employer and payroll provider act prudently to deposit the funds as soon as practicable.

NOTICES
The DOL will not treat a violation for failure to give notice of blackout periods related to Hurricane Harvey.



The IRS and Dept of Labor encourage employers to make reasonable accommodations for employees to avert the loss of benefits, and they will give grace periods where appropriate when it is not possible to be in compliance with the plan’s pre-established time frames under the plan’s normal claim and appeal procedures due to Hurricane Harvey.




Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

Hardship Withdrawals and Excess Contributions- The Error and Correction

Solo 401k

 A participant takes a Solo 401k hardship withdrawal and salary deferrals continue. The error is an operational failure, meaning the plan is failing to operate within the terms of the plan document. Treasury Regulation 1.401(k)-1(d)(3) requires that participants wait six months from receiving a distribution to resume contributions.

The correction rules concerning excess allocations apply. Under the excess contribution rules, the plan returns the deferrals, plus any earnings, from the day they were contributed to the day they are distributed. Use Code E on the 1099R, meaning the money is taxed in the year it is distributed. There’s no pre age 59 1/2 10% tax penalty for early distributions.

If the excess deferrals are matched by the employer, it gets more involved. If the match is fixed, the employer deducts the match contribution and any earnings and puts the money into  a forfeiture account for future contributions.

What to do..
Payroll services, unaware of the solo 401k plan provisions, are usually the cause of continued excess deferrals. Solo-k sponsors should establish payroll procedures and see that they are followed.


Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

Exception to the IRA Pro-Rata-Rule

Solo 401k

Usually, when you take an IRA distribution, all of your IRAs are considered one big IRA
 ( except Roth IRAs).
You may rollover just your taxable IRA funds to your solo-k plan as the solo-k plan allows for it.

You can only fund each of these distribution with the taxable part of your IRA. The pro-rata rule will not apply. Instead, the distribution will consist only of taxable IRA funds.

Example:
Sam has $250,000 in his only IRA. His IRA includes $150,000 in after-tax funds. Sam’s solo-k plan allows rollovers from IRAs. Sam rolls over $100,000 to his solo-k plan. The pro-rata formula does not apply. Instead, the entire $100,000 amount will be pre tax. This means that the $150,000 left in Sam’s IRA is considered to be after-tax funds. Sam will not have a tax bill when he takes any of these funds from his IRA.

Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

IRS Clarifies Missing Participant Form 5500 Reporting

Solo 401k

The Internal Revenue Service (IRS) announced that filers who have made a concerted effort to locate missing participants due benefit payments will enjoy a lower reporting burden associated with the missing individuals.

Plan sponsors, going forward, until further guidance guidance, “do not need to report on Lines 4I of the Schedule H and I to the Form 5500 and 10f of the Form 5500-SF unpaid required minimum distribution (RMD) amounts for participants who have retired or separated from service, or their beneficiaries, who cannot be located after reasonable efforts or where the plan is in the process of making reasonable contacting efforts at the end of the plan year reporting period.”





Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

Correct Employer Matches with True Up Conributions.

Solo 401k

 When employers match employee deferrals each payroll throughout the year, each employer contribution is based on the participant deferral for that payroll. 

Any contribution changes an employee makes during the year could change the match amount, even if the  contributions are enough to receive the full amount that year. 

The true-up match additional contribution is how the employer's contributions are adjusted out so participants receive the accurate value from the employer match.

Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

What You Need to Know if You Stop all Contributions to the 401k Plan

Solo 401k 

While plan sponsors aren’t required to make contributions to their 401(k) plan every year, contributions must be “recurring and substantial” for a plan to be considered ongoing.

IRS Audit guidelines state that if the employer hasn’t made contributions in three of the past five consecutive years, the plan may have incurred a complete discontinuance of contributions.

When this occurs, the plan sponsor must treat the plan as a terminated plan and fully vest all participant accounts for the plan to remain qualified.

Determining if there’s been a complete discontinuance of contributions is based on facts and circumstances, for example, the plan sponsor’s history of profitability, and the probability of future contributions from the sponsor.

If you haven’t made contributions to your 401k plan for three of the past five years, consider

1. Your history of profitability/ability to make contributions.
2. Whether you’ll be able to make contributions in the future.

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Consequences of RMD distribution failure

When plan sponsors don’t pay and a participant doesn’t receive a RMD:

• The plan sponsor faces the potential disqualification of the plan which ultimately affects all plan participants.
• The plan participant who should’ve received the RMD may be liable for an excise tax under IRC Section 4974 equal to 50% of the amount of the RMD not received.

Plan Sponsors should review their files and make sure those employees  subject to the RMD rules receive the distributon.

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Consultant Not an ERISA Fiduciary

Solo 401k

The Tenth Circuit dismissed the complaint because the petitioner failed to sufficiently allege that the consultant had fiduciary status.  

The Court explained that “fiduciary status requires authority or responsibility that is discretionary, which entails ‘the freedom to decide what should be done in a particular situation’” and that conducting a routine computation, as required by one’s job, does not require discretion.  The Court also relied on the Department of Labor’s regulations, 29 C.F.R. §§ 2509.75-8 and 2509.75-5, which explain that “a person who performs administrative functions, such as calculating benefits, does not automatically have discretionary authority.”  Because the Court concluded that the consultant was not a plan fiduciary, it determined that it need not decide whether the fiduciary status could support liability of the other defendants.

The case is Lebahn v. Nat’l Farmers Union Unif. Pension Plan, et al., No. 15-3201, 2016 BL 221313 (10th Cir. July 11, 2016).

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New Changes for Small Plan Filers Not Using the Form 5500-SF

Solo 401k

The Proposed 5500 Revisions also make significant changes for small plans that are not eligible to file a Form 5500-SF. For
these plans, the Proposed Revisions –

1. Eliminate the Schedule I, the schedule currently used by small plans to report financial information;
2. Require that the Schedule H be completed, including the schedules of assets, though small plans that arecurrently exempt from the audit requirement will continue to be exempt under the Proposed Revisions;
3.  Revise the Form 5500 to add a new question asking defined contribution pension plans to report the number of participants with account balances at the beginning of the plan year; and
4.  Revise the audit exemption to be based on the number of participants with account balances as of the beginning of the plan year, rather than on the total number of participants at the beginning of the plan year.

Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

Use QLAC's to Reduce Your RMD Distribution

Reduce your Required Minimum Distributions with a Qualified Longevity Annuity  Contract

You can invest up to 25% , up to $125, 000, of your Solo 401(k) account balance in an annuity called a qualified longevity annuity contract. Funds in a Qualified Longevity Annuity Contract are disregarded for Required Minimum Distribution purposes. A Qualified Longevity Annuity  Contract is a deferred-income annuity that begins payments some years after your investment. Check this--- a 70-year-old woman who invests $125,000 in a Qualified Longevity Annuity  Contract will get an estimated $23,750 per year starting at age 80, or $46,500 per year if payments start at age 85 . That will reduce the Required Minimum Distribution at age 71 by an estimated more than $4,750.

Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

The Surface Transportation and Veterans Health Care Choice Improvement Act of 2015

Solo 401k Plan

The Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 (H.R. 3236), signed by President Obama on July 31, 2015, extends the due date for many tax returns.

Among those of importance to retirement plans, the bill provides that the maximum extension for the returns of employee benefit plans filing Form 5500 shall be an automatic 3 1⁄2-month period ending on November 15 for calendar year plans. (edit-- new dates reverted back to original Oct 15th)In addition, the maximum extension for the returns of organizations exempt from income tax filing Form 990 (series) shall be an automatic 6-month period ending on November 15 for calendar year filers.

Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

Solo-k Plan

After December 31, 2016, the rules in Treasury Regulation 1.401(b)-1 will determine the deadline for adopting legally required plan amendments. 

The extended deadline to adopt plan amendments required to maintain a retirement plan’s tax qualified status no longer applies.  This means that plan sponsors no longer have until the end of the remedial amendment cycle to adopt an amendment to correct a legally required plan provision. 

  Instead, for single-employer plans, Treasury Regulation 1.401(b)-1 generally  requires a plan to be amended for a legally required provision by the later of:

          A.   the last day of the plan year in which the legally required provision became effective with respect to the plan, or  

          B.   the plan sponsor’s income tax return filing deadline (including extensions) for the tax year in which the legally required provision became effective with respect to the plan. 

Plan sponsors should ensure that any amendments required in connection with determination letters recently issued by the IRS have been adopted timely and dated accordingly.

Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

IRS Finalizes 5500 EZ Tax Relief

Rev. Proc. 2015-32 provides a new permanent procedure for Solo 401k plans to receive penalty relief for late filed 5500 EZ returns without having to demonstrate reasonable cause for the late filing. Eligible plans include plans covering only the business owner and their spouse or one or more partners and their spouses that have not received a notice from the IRS regarding late returns. The permanent relief does include a filing fee of $500 per delinquent return, up to a maximum of $1,500 per plan. In addition, Rev. Proc. 2015-32 requires a Form 14704, Transmittal Schedule, be submitted with the late returns.

In case you need it, a good practice is to file for an extension each year to give yourself an extra 6 months to file each year.

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" Optimal Investment Strategy" According to Dept of Labor

In their most recent proposed regulation the Dept of Labor is suggesting the following investment options. If adopted by the Plan sponsor these options would provide an exception for the  plan advisor of further liability:

 The DOL believes advisors who recommend portfolios consisting of low-management-fee index funds, passively managed funds or exchange-traded funds presumptively could be treated as acting in a manner consistent with their fiduciary obligation, since these investment options “present minimal risk of abuse.”

 The DOL justifies this position by noting it is “consistent with the prevailing view in the academic literature that posits that the optimal investment strategy is often to buy and hold a diversified portfolio of assets calibrated to track the overall performance of financial markets.”

Solo 401k Plan: Your Opportunity for Checkbook Control of Your Future

What is IRS Form 3115?

Solo 401k

WHAAAAAT?

IRS Form 3115 is an Application for Change in Accounting Method. The IRS recent final regulations  require every landlord owning rental property prior to 2014 to change their accounting treatment of classifying expenses for repairs or improvements. Changing the accounting treatment requires changing the accounting method, and hence we are brought to Form 3115.

The IRS  has streamlined the process for acceptance. When you file Form 3115, your application will be automatically approved by the IRS. You  file Form 3115 with your timely prepared tax returns for this year, at the latest being October 15, 2015. 

You only need to file one 3115 for each legal entity owning property prior to 2014. If you have several properties under one legal entity, you still only need to file one Form 3115. However, if you placed properties in separate entities, each entity will need to file Form 3115 which is going to be a costly headache. 

Check with your tax professional to see how the Form 3115 affects your real estate investments.

Solo 401k plan:Your Opportunity for Checkbook control of your future

solo 401k

The IRS has recently announced answers to the questions for Notice 2014-54.

Can I roll over just the after-tax amounts in my Solo 401k account to a Roth IRA and leave the remaining amounts in the plan (i.e., take a partial distribution of just the after-tax amounts)? 

No. Notice 2014-54 provides that each distribution from a solo 401k plan must include a proportional share of both the pre-tax and after-tax amounts in the account. You cannot take a distribution of only the after-tax amounts and leave the pre-tax amounts in the plan. In order to roll over all of your after-tax contributions, you could take a distribution of the full amount (all pre-tax and after-tax amounts) in your account, roll over all the pre-tax amounts in a direct rollover to a traditional IRA or another eligible retirement plan, and roll over all the after-tax amounts in a direct rollover to a Roth IRA. 

In addition to Roth contributions, I have after-tax voluntary contributions. I want to roll over my after-tax contributions to a Roth IRA and roll over earnings on my after-tax contributions to a traditional IRA. Can I do that? 

Yes. Earnings associated with after-tax contributions are pre-tax amounts in your account. Thus, solo 401k after-tax contributions can be rolled over to a Roth IRA without also including earnings. Under Notice 2014-54, all distribution pre-tax amounts may be rolled over to a traditional IRA and, will not be included in income until distributed from the IRA.

Solo 401k plan:Your Opportunity for Checkbook control of your future

Increasing Employer Contributions in 2015

Solo 401k

With the 2015 annual compensation limit increasing to $265,000 from $260,000, the limit on the maximum amount of employer matching contributions participants can receive will also increase.

Employer Matching Contribution Limits
Maximum  Matching Percentage	Maximum   Matching Contribution in 2015	Maximum   Matching Contribution in 2014
3.00%	$7,950	$7,800
3.50%	$9,275	$9,100
4.00%	$10,600	$10,400
4.50%	$11,925	$11,700
5.00%	$13,250	$13,000
5.50%	$14,575	$14,300
6.00%	$15,900	$15,600
7.00%	$18,550	$18,200
8.00%	$21,200	$20,800
9.00%	$23,850	$23,400
10.00%	$26,500	$26,000
11.00%	$29,150	$28,600
12.00%	$31,800	$31,200
13.00%	$34,450	$33,800
14.00%	$37,100	$36,400
15.00%	$39,750	$39,000

The maximum matching contribution is calculated by multiplying the maximum matching percentage by the annual compensation limit. Employer matching contributions can make up a large portion of a participant’s retirement savings

Solo 401k plan:Your Opportunity for Checkbook control of your future