OEOC Annual Conference ESOP Administration Land Mines and How to
Transcription
OEOC Annual Conference ESOP Administration Land Mines and How to
OEOC Annual Conference ESOP Administration Land Mines and How to Avoid Them April 19, 2013 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Presenter Kristy N. Britsch, Esq. Columbus ^ 614.628.6883 [email protected] © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Plan Qualification Employer deduction for contributions when made Tax deferred retirement savings Trust doesn’t generally pay tax on income Benefits eligible for rollover Benefits of S corporation ESOP structure 3 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Plan Disqualification Employer loses deduction for nonvested contributions Generally, deduction taken by employer when amounts become vested Employees recognize current income as amounts vest Trust recognizes taxable income on earnings (interest, dividends, capital gains) Distribution made during nonqualified years Not eligible for rollover Excise tax may apply for any amounts rolled over that exceed eligible IRA contribution amount Tax deferred retirement savings Termination of S corporation status and related benefits 4 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Plan Disqualification Termination of S corporation status and related benefits Company reverts to C corporation C corporation taxes due 5 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com How to Achieve Plan Qualification Plan Document Compliance Operational Compliance 6 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Plan Document Compliance Timely amendments Process for receiving Determination Letter 7 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Plan Operational Compliance Follow the terms of your plan document Make sure SPD matches plan Compliance with IRS rules and regulations 8 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Correction of Administrative Errors: EPCRS Overview Correction of operational and document through the IRS Employee Plans Compliance Resolution System (“EPCRS”): Self-Correction Program Voluntary Correction Program Audit CAP Revenue Procedure 2008-50 Revenue Procedure 2013-12: Effective April 1, 2013 9 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com EPCRS Correction Principles Full Correction: All taxable years, whether or not closed Restoration: Method should restore plan and participants to the position they would have been in had the failure not occurred Implementation of correction saves plan qualification 10 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com EPCRS: General Features SCP/VCP: Available so long as the plan is not be under examination Audit CAP: Correction for errors discovered in IRS examination; pay sanction SCP: Correct errors without notification of IRS or payment of fee May correct ‘Insignificant’ errors or ‘Significant’ errors with SCP, but may only correct Significant errors if ‘fix’ occurs by close of second plan year following the plan year of the failure. Insignificant vs. Significant is subjective and based on percentage of plan assets involved, number of years involved and percentage of participants involved VCP: Correction of all errors that are not eligible for SCP Submit application and application fee Less than 20 = $750; 21-50 = $1,000; 51-100 = $2,500; 101-500 = $5,000; 501-1,000 = $8,000; 1,001-5,000 = $15,000; 5,001-10,000 = $20,000; over 10,000 = $25,0000 11 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Compensation Errors SCP or VCP Overcontribution: reduction of account balance and reallocation to other participants (SCP or VCP) Amend the plan retroactively to change definition of comp (VCP only) Undercontribution: Reallocation of all account balances (SCP or VCP) Excess Employer Contributions Distribute EDs, plus earnings and Forfeit discretionary contributions (reallocated forfeitures or hold forfeitures in an unallocated account) 12 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Rehires - Corrections Re-entry: Eligible for either SCP or VCP Vesting/Restoration of Forfeitures: Incorrect vesting: correct by either restoration of account balance or reallocation, or, request for return of benefits (SCP or VCP) Restoration of Forfeitures: Not an error if performed timely; simply an administrative procedure 13 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Excess Annual Additions - Correction Place excess amount in unallocated account (employer contributions) Reduces future employer contributions or is reallocated to participants within same plan year Return deferrals and forfeit match (employee deferrals) 14 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Improper Vesting - Correction Contribution or Reallocation Method Contribution Method: Employer makes a corrective contribution on behalf of the affected employee, adjusted for earnings. No reduction in other employee’s accounts. Reallocation Method: Account balance of the affected employee is increased by an amount equal to the amount of the improper forfeiture, adjusted for Earnings. The account balance of each employee who shared in the allocation of the improper forfeiture is reduced by the amount of the improper forfeiture that was allocated to that employee's account. 15 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com Questions? Kristy N. Britsch, Esq. Columbus ^ 614.628.6883 [email protected] © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com