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Retirement Assets Total $24.9 Trillion in First Quarter 2015
"Retirement assets accounted for 36 percent of all household financial assets in the United States at the end of the first quarter of 2015.... Assets in individual retirement accounts (IRAs) totaled $7.6 trillion at the end of the first quarter of 2015, an increase of 2.1 percent from the end of the fourth quarter. Defined contribution (DC) plan assets rose 1.8 percent in the first quarter to $6.8 trillion. Government defined benefit (DB) plans-- including federal, state, and local government plans -- held $5.1 trillion in assets as of the end of March, a 0.5 percent decrease from the end of December. Private-sector DB plans held $3.2 trillion in assets at the end of the first quarter of 2015[.]" (Investment Company Institute [ICI])
[Guidance Overview] Summary of DOL Regulatory Package Redefining Fiduciary Advice and Proposing or Amending Prohibited Transaction Class Exemptions (PDF)
6 pages. "There is still a considerable amount of debate over the meaning and impact of the Proposal, and a key area of uncertainty is exactly how the rollover provisions in the proposal are intended to operate. As a high-level summary, this [article] does not address all of the literally hundreds of issues being discussed, but it does provide a general overview of the expanded definition and the key prohibited transaction class exemption, the Best Interest Contract Exemption (BICE)." (U.S. Chamber of Commerce)
[Guidance Overview] Beneficiaries Need to Understand the 'Income in Respect of a Decedent' Deduction
"[T]he Internal Revenue Code allows for an 'Income in Respect of a Decedent' (IRD) deduction under Section 691(c). Claimed by the beneficiary of an inherited IRA to the extent of any estate taxes that were caused by the account, the deduction can be material -- as much as 40% of the value of the account! Yet despite its size, beneficiaries in practice often 'miss' the IRD deduction ... And notably, in the end the IRD deduction applies not only to inherited IRA accounts, but also other employer retirement plans, inherited non-qualified annuities, employer non-qualified stock options, deferred compensation, employer NUA stock, and more!" (Michael Kitces in Nerd's Eye View)
[Opinion] Dear 'Financial Consultant': Do You Really Act in My 'Best Interests'?
['Conflict of interest' questions, in the form of a letter to a financial consultant.] "Can you answer these questions for me? Also, can you put your answers in writing? ... [1] Do you possess the legal obligation to act in my 'best interests'? ... [2] With respect to each conflict of interest you may possess ... please explain to me how you have, in the past, ensured that you have observed [listed] procedures to properly manage each conflict of interest in order to ensure that no harm comes to me: ... [3] With respect to each conflict of interest you may possess ... is each transaction you recommended that I undertake ... also 'substantively fair' to me, as is required under a true fiduciary 'best interests' standard? ... [4] What are the total fees and costs associated with each investment product I have purchased as a result of your recommendations.... [5] Please set forth the compensation received by your firm as a result of any recommendation from you which I have implemented.... [6] Please also set forth whether you received any material compensation as a result of your recommendations to me." (Ron Rhoades)
[Opinion] Statement from Rep. Roe at HELP Subcommittee Hearing on Restricting Access to Financial Advice: Evaluating the Costs and Consequences for Working Families and Retirees
"[We] cannot -- in any way -- make it harder for workers, retirees, and small business owners to receive the financial advice they may need. Yet that is precisely what this regulatory proposal would do. Offering some of the most basic assistance would be prohibited, such as advice on rolling over funds from a 401(k) to an IRA. Financial advisors would no longer be able to assist individuals in how to manage their funds upon retirement. And small business owners would be denied help in selecting the right investment options for their workforce, which will lead to fewer employees enrolled in a retirement plan." (Committee on Education and the Workforce, U.S. House of Representatives)
[Opinion] Perez's Perilous Costs: Eye-Catching Numbers DOL Is Ignoring with Fiduciary Proposal
"Small business owners, through SEP and SIMPLE-type IRA plans, provide roughly $472 billion in retirement savings to their employees. But DOL's proposal does not treat small business retirement plans the same relative to large employer plans, putting them at a disadvantage and making it harder for small business owners to do the right thing for their employees.... Because DOL has included advisors to small businesses in its fiduciary definition, many small business employees trying to save for retirement will no longer enjoy access to low-cost investment assistance.... DOL itself has estimated that access to professional investment advice saves more than $100 billion per year in preventable financial mistakes. That is more than five times the amount that DOL says it will save people by finalizing its new regulation." (U.S. Chamber of Commerce)
Auto-IRAs: How Much Would They Increase the Probability of 'Successful' Retirements and Decrease Retirement Deficits?
"Assuming no opt-outs, this analysis finds that the introduction of an auto-IRA for households currently ages 35-39 working for small employers, would increase the probability of a 'successful' retirement (as measured by the Retirement Readiness Ratings, or RRR) by 8.4 percent, declining as employer size increases. Even in the worst-case scenario (75 percent opt out) there was an increase in RRR, albeit only 2.2 percent for those working for small employers and 1.1 percent for those with large employers." (Employee Benefit Research Institute [EBRI])
Using Your IRA to Buy a Business: Still a Risky Strategy
"The court said that the wages could not be justified as reasonable compensation, which is an exception to the prohibited transaction rules, because the reasonable compensation exception is available only for services performed for the IRA or qualified plan. In this case, the services were performed for the business, not for the IRA itself, so the exception did not apply. Note that the salary amounts were modest ($9,754 in 2005 and $29,263 in 2006); it was the act of directing the salary payments, not the amount of those payments, that was the prohibited transaction." [Ellis v. Comm'r of Internal Revenue, No. 14-1310 (8th Cir. June 5, 2015)] (Stinson Leonard Street)
[Official Guidance] Text of DOL Notice of Hearing and Extension of Comment Period for Proposed Conflict of Interest (Fiduciary) Regs and Prohibited Transaction Exemptions
"Notice is hereby given that [EBSA] will hold a public hearing on August 10, 11, and 12, and continuing through August 13, 2015 (if necessary) to consider issues attendant to adopting a regulation concerning its proposed conflict of interest rule and related proposed prohibited transaction exemptions. The Department also is extending the date by which comments may be submitted on the proposed rule and proposed new and amended exemptions. Public comments on the proposals may now be submitted to the Department on or before July 21, 2015." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
[Opinion] AARP's David Certner on DOL's Proposed Fiduciary Rule: 'Disclosure Alone Not Enough'
"Given the confusion and lack of understanding in the marketplace, it is clear that disclosure alone is not enough.... The current rules were basically adopted before individual account plans like 401k-type plans and IRAs were in existence. Most Americans with retirement savings now rely on individual account plans, and therefore the responsibility for investing the plan assets falls on the individual. The rules must be updated to respond to this change, and to ensure that all retirement plan advisers act in the 'best interest' of the individual investor. Failure to act will continue to cost Americans billions of dollars each year out of their retirement savings -- money that they cannot afford to lose." (Fiduciary News)
Money Flows Out of 401(k) Plans as Baby Boomers Age
"Withdrawals from 401(k) plans are now exceeding new contributions as baby boomers age, a shift that could have profound implications for the U.S. retirement industry. Investors pulled a net $11.4 billion from tax-deferred savings plans in 2013 ... ending decades of expansion.... The movement out of 401(k)s is expected to accelerate in the coming decade as more baby boomers retire, squeezing large money-management firms that rely on fees charged to employers and investors as a chief profit engine ... Asset managers hope they can replace the outflows with a new surge from millennials ... One industry data provider said most funds leaving 401(k)-style plans are migrating to IRAs." (The Wall Street Journal; subscription may be required)
A Way Around the Once-per-Year Restriction on IRA Rollovers
"[B]egin by taking money out of [the] IRA ... But rather than putting $50,000 back into the IRA within 60 days, this client would create a Roth IRA and fund the new account with $50,000.... [T]he final step is to recharacterize that conversion on or before the due date of the tax return for the year of the conversion. That effectively undoes the Roth conversation and transfers the $50,000 (plus any growth accumulated during that year) back into the traditional IRA. From a tax perspective, it is as if the money never left the account." (The Wall Street Journal; subscription may be required)
Are Your Investment Fees Deductible?
"With the rise of comprehensive wealth management, it is increasingly common for clients to pay a single bundled AUM fee that covers not only deductible investment management services but also non-deductible planning expenses. Technically, though, those clients should probably only be deducting a portion of the AUM fee, not the entire amount -- at least where the AUM fee covers a material amount of planning services. The issue is especially concerning when it comes to retirement accounts such as IRAs, where paying a personal financial planning fee with retirement assets could trigger a taxable deemed distribution, or even disqualify the entire IRA as a prohibited transaction.... [F]or some firms, unbundling fees can present challenges in communicating the value of their services." (On Wall Street)
Text of Eighth Circuit Opinion Affirming Disqualification of IRA to Used to Fund Business Startup; Taxpayer Owes Ordinary Income Tax on Entire Amount (PDF)
"[A]n attorney for Mr. Ellis formed CST Investments, LLC (CST), to engage in the business of used automobile sales ... The operating agreement contemplated that Mr. Ellis's IRA would provide an initial capital contribution of $319,500 in exchange for a 98 percent ownership in CST ... Mr. Ellis's IRA did not exist at the time CST was formed.... [H]e received [the funds] from a 401(k) that he had established with his previous employer, and he deposited the amount in his IRA.... To compensate him for his services as general manager, CST paid Mr. Ellis a salary of $9,754 in 2005 and $29,263 in 2006.... If a disqualified person engages in a prohibited transaction with an IRA, the plan loses its status as an individual retirement account under Section 408(a), and its fair market value as of the first day of the taxable year is deemed distributed and included in the disqualified person's gross income.... The tax court properly found that Mr. Ellis engaged in a prohibited transaction by directing CST to pay him a salary[.]" [Ellis v. Comm'r of Internal Revenue, No. 14-1310 (8th Cir. June 5 2015)] (U.S. Court of Appeals for the Eighth Circuit)
DOL Web Page: Public Comments on Conflict of Interest Prohibited Transaction Exemptions
Web page includes links to comment letters submitted on the Prohibited Transaction Exemptions proposed on April 14, 2015, including the new Best Interest Contract Exemption and Principal Transactions in Debt Securities Exemption, and proposed changes to existing exemptions. Page is updated as new comments are submitted. (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
DOL Web Page: Public Comments on Conflict of Interest Proposed Rule
Web page includes links to comment letters submitted on regulations proposed on April 14, 2015: Definition of the Term 'Fiduciary'; Conflict of Interest Rule-Retirement Investment Advice; page is updated as new comments are submitted. (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
[Guidance Overview] DOL Has Many Questions About Its Fiduciary Reproposal
"[In its fiduciary reproposal package, the DOL included] more than 170 questions concerning its proposal or matters left open in that proposal.... [T]hat approach both: [1] Constructively solicits input from the regulated community, and [2] Makes that input less informed and useful because significant elements of the proposal are open ended. Because many of the questions involve key issues, particularly under the expanded fiduciary definition and the proposed Best Interest Contract Exemption, they are collected [in a single comprehensive list in this article]." (Sutherland Asbill & Brennan LLP)
Examining the New Income Measures in the Census Bureau's Current Population Survey
"Compared with the estimated amount of income under the traditional income questions for 2013, the redesigned questions resulted in an estimated total annual income 9.1 percent larger for those ages 65 or older, an aggregate amount of almost an additional $133 billion. Furthermore, annual retirement income was 27.9 percent larger, an aggregate difference of almost $71 billion annually. Income from IRAs and 401(k)-type plans was an important component of this higher amount of annual retirement income found in the new questions, which overall was more than 250 percent higher than that found by the traditional measure." (Employee Benefit Research Institute [EBRI])
IRA Balances, Contributions and Rollovers, 2013 (PDF)
36 pages. "The average account balance decreased from $91,864 in 2010 to $87,668 in 2011 before increasing to $119,804 in 2013 -- an increase of 30.4 percent from 2010 to 2013, and 14.1 percent from 2012 to 2013.... The percentage of individuals who contributed to their IRA was relatively consistent ranging from 12.1 percent in 2010 to 13.8 percent in 2013.... The percentage of contributors who contributed the maximum rose from 43.5 percent in 2010 to 53.5 percent in 2012.... When examining the same individuals that were in the database each year from 2010 to 2013, the median percentage change in these individuals' account balances was a 33.6 percent increase." (Employee Benefit Research Institute [EBRI])
[Guidance Overview] Analysis of the DOL Fiduciary Proposal's Impact on Independent Registered Investment Advisers
"A recommendation to a participant to take a distribution, and advice regarding the investment of assets to be rolled over to an IRA, are fiduciary investment advice under the proposed regulation. This is in contrast to existing guidance in DOL Advisory Opinion 2005-23A ... In other words, the proposal applies to a recommendation, regardless of whether the adviser already is a fiduciary to the plan and regardless of whether the adviser is otherwise providing services to the plan or participant.... For an RIA who is not already serving as a fiduciary to a plan, the proposal could be significant." (Drinker Biddle)
Missouri Rep. Ann Wagner Wages 'War' Against DOL Fiduciary
"A leading opponent of a Department of Labor proposal to raise investment-advice standards for brokers working with retirement accounts is pursuing an aggressive strategy -- that includes denying the agency funds to implement it -- to stop the rule.... Ms. Wagner argues that the rule would significantly raise regulatory and liability costs for brokers and price them out of serving the middle-income market of retirement savers." (Investment News)
[Opinion] New Fiduciary Regs Proposal, Part 3: People Are Talking (PDF)
"When all is said and done, the average person must judge his or her personal and retirement plan investments using tools that they can handle. The rules and disclosures of the Proposal are just too complex to do participants or plan fiduciaries any good. Of course, we all know that there are bad actors out there, and yes, we need to get them out of the business, but there has to be an easier, more effective way." (Ferenczy Benefits Law Center LLP)
[Opinion] U.S. Chamber of Commerce Comment Letter to EBSA on Proposed Information Collection Requests and Burden Estimates Associated with the DOL Conflict of Interest Proposed Rule and PTE Notices (PDF)
10 pages. "The potential magnitude of these burdens raises serious concern that the costs of the proposed regulation's information collection strategy may outweigh the benefits that the proposed regulation is likely to achieve. Rather than proceeding down a too-costly regulatory path, the government should consider more carefully whether there may exist prudent alternatives to achieve the desired protections and benefits." (U.S. Chamber of Commerce)
[Guidance Overview] DOL's Proposal to Expand Fiduciary Definition Would Bring Many Service Providers Into Scope
10 pages. "The reproposed definition of 'fiduciary' is intended to expand the scope of activities that will result in fiduciary status and application of the prohibited transaction rules, particularly covering many services that broker-dealers and other financial advisers provide to plans, plan participants, and Individual Retirement Account (IRA) owners. The DOL has provided exceptions for certain activities that, in its view, should not result in fiduciary status. The reproposal leaves ope n questions about what types of investment-related activities or communications may still be viewed as nonfiduciary even though they do not fall within one of the six carve-outs." (Morgan Lewis)
[Guidance Overview] The Impact of the DOL's Fiduciary Proposal on Independent Registered Investment Advisers
"The [Best Interest Contract Exemption (BICE)] conditions are so difficult to satisfy in the context of distribution recommendations that [the authors] believe most RIAs will provide distribution education, rather than recommendations.... If the RIA is providing advice at the plan level but not to participants, this may be impractical. But for RIAs that are providing advice to participants, they could avoid engaging in a prohibited transaction by maintaining the same fee in the IRA as they charged in the plan." (Bruce Ashton and Fred Reish, of Drinker Biddle)
[Guidance Overview] DOL Reproposed Rules Governing the Definition of 'Fiduciary,' Part 2: The 'Best Interest Contract' Exemption
"[The Best Interest Contract (BIC)] exemption does not apply to advisers who advise on the selection on a menu of investment options.... The exemption exposes advisers and financial institutions to class action claims based on required warranties, which may involve an unacceptable level of risk.... The BIC exemption does not bar arbitration provisions as potential plaintiffs might have hoped, but it does ensure access to the courts for class actions. In the case of ERISA-covered retirement plans, this will likely mean access to federal court with limits on remedies.... The adviser must acknowledge, and will be subject to, fiduciary status. Accordingly, the adviser will be subject to ERISA-like standards, but remedies will not be limited in the case of IRAs." (Mintz Levin)
[Guidance Overview] Top Points from the DOL Proposal to Expand the Definition of Fiduciary
"[A]dvice does not have to be provided on a regular basis to result in fiduciary status. Thus, one-time contacts with a plan or IRA may result in fiduciary status.... The most restrictive provision of the best interest contract exemption is the definition of the 'assets' that qualify for the exemption.... Excluded from this definition is any equity security that is a security future or a put, call, straddle or other option or privilege of buying an equity security from or selling an equity security to another without being bound to do so." (DLA Piper)
[Guidance Overview] DOL Reproposed Rules Governing the Definition of 'Fiduciary', Part 1: The Rule and Its Exceptions
"In one camp are those who would impose an impossibly high fiduciary standard on the financial services industry without regard to the consequences to plan participants and investors; there are others who think the status quo is fine, despite transformative changes in the retirement investing environment over the past 40 years. [The authors] believe that there is a middle ground between the competing constituencies, and that the proposed regulations strike an appropriate conceptual balance of completing interests. However, [they] also believe that the proposal, as currently drafted, falls short in some important, practical respects. This post explains the proposed regulations and the context in which they arise." (Mintz Levin)
[Guidance Overview] Proposed Fiduciary Definition Would Impact Investment Adviser Practices
"The broader definition of investment advice fiduciaries, combined with the exclusion of communications to IRA owners from the carve-outs for seller transactions, platform providers and selection and monitoring assistance, would sweep more relationships with IRA owners into exposure to prohibited transaction excise taxes. The proposed amendments to current prohibited transaction exemptions would drive advisers to IRA owners toward reliance on the new proposed Best Interest Contract Exemption, which makes investment advisers agree to the same fiduciary standards as apply under ERISA and gives IRA owners enforceable rights ... Thus, under the proposed DOL scheme, what is not required by statute will be imposed by contract." (Faegre Baker Daniels LLP)
Age 70-1/2? Think Through Your RMD Choices
"The person who thinks that postponing is always a good idea because you defer the taxes a little longer should remember that postponing actually increases the amount of the second year's RMD -- because the age 70-1/2 year RMD that you did not take in the age 70-1/2 year is still part of the account balance at the end of the year! ... If the first year's RMD is postponed, two RMDs are required in the second year, and the two RMDs in the second year will have different deadlines, be based on different account balances, and use different divisors!" (Natalie Choate, via Morningstar Advisor)
[Opinion] What Retirement Savers Need to Know About the Fiduciary Rule
"According to the Labor Department: 'As baby boomers retire, they are increasingly moving money from ERISA-covered plans, where their employer has both the incentive and the fiduciary duty to facilitate sound investment choices, to IRAs (which are mentioned no less than 65 times in the Labor Department's proposed rule) where both good and bad investment choices are myriad and advice that is conflicted is commonplace.' And because of that, the Labor Department wants those providing 'investment advice' to IRA account owners to be 'fiduciaries' as well. And because of that, critics say IRA account owners, especially those with small accounts, will either get less advice or pay more for it if the proposed rule goes into effect as proposed." (MarketWatch)
[Opinion] What Retirement Savers Need to Know About the Fiduciary Rule
"According to the Labor Department: 'As baby boomers retire, they are increasingly moving money from ERISA-covered plans, where their employer has both the incentive and the fiduciary duty to facilitate sound investment choices, to IRAs (which are mentioned no less than 65 times in the Labor Department's proposed rule) where both good and bad investment choices are myriad and advice that is conflicted is commonplace.' And because of that, the Labor Department wants those providing 'investment advice' to IRA account owners to be 'fiduciaries' as well. And because of that, critics say IRA account owners, especially those with small accounts, will either get less advice or pay more for it if the proposed rule goes into effect as proposed." (MarketWatch)
[Opinion] What Retirement Savers Need to Know About the Fiduciary Rule
"According to the Labor Department: 'As baby boomers retire, they are increasingly moving money from ERISA-covered plans, where their employer has both the incentive and the fiduciary duty to facilitate sound investment choices, to IRAs (which are mentioned no less than 65 times in the Labor Department's proposed rule) where both good and bad investment choices are myriad and advice that is conflicted is commonplace.' And because of that, the Labor Department wants those providing 'investment advice' to IRA account owners to be 'fiduciaries' as well. And because of that, critics say IRA account owners, especially those with small accounts, will either get less advice or pay more for it if the proposed rule goes into effect as proposed." (MarketWatch)
[Opinion] The Hidden Provision in the DOL's Proposed Fiduciary Rule
"The DOL believes advisors who recommend portfolios consisting of low-management-fee index funds, passively managed funds or exchange-traded funds presumptively could be deemed to be 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 (though by no means universal) 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.' " (U.S. News & World Report)
[Opinion] It's Time to Raise IRA Contribution Limits
"One straightforward solution would be to adopt a uniform annual maximum contribution to tax-advantaged retirement plans. From the perspective of the government, it is more important that people save an adequate amount for retirement, rather than that they save in a particular type of tax-favored vehicle." (Morningstar)
Investor Confusion About Fiduciary Duty Not Likely to Be Resolved by Proposed DOL Rule
"Investors remain confused about whether their financial advisers are fiduciaries and about the fees they pay for advice ... [A new report] shows that more than four out of five investors believe that their adviser is a fiduciary or acts in their best interests. Yet most investors use a full service broker -- who must sell investments that are suitable for their clients but not necessarily the lowest cost or commission -- and a much smaller percentage use investment advisers, who already must meet the best-interests standard." (Investment News)
For Advisors: The Essence of the Fiduciary Proposal
"[A]lmost every person who makes an investment recommendation to a plan, a participant or an IRA owner will be considered a fiduciary. For 'pure' level-fee advisors (which are typically RIAs), there won't be any change for their services to plans, participants or IRAs -- with one exception. The exception is 'capturing' rollovers." (
Five Fast Facts Regarding the New DOL Proposed Fiduciary Rule
"[1] There appears to be no need to take any immediate action ... [2] It appears that the proposed rule will NOT affect non-ERISA plans ... [3] Conversely, IRAs appear to be significantly affected by the rules ... [4] The proposed rule primarily affects service providers as opposed to plan sponsors ... [5] There are a lot of unknowns, at least at present." (Cammack Retirement Group)
[Guidance Overview] DOL's New Proposed Fiduciary Definition: Start Preparing Now
"This alert is not intended to fully explain the extensive Proposal, but instead it suggests what an employer, pension consultant, insurance salesman or investment advisor should consider doing now to prepare for the date the final regulations and prohibited transaction exemptions are issued.... The Proposal is not minor and will require many changes in operations of many parties dealing with retirement plans and IRAs. While the DOL has indicated there will be 8 months following the effective date (which will be 60 days post issuance of the final regulation) in which to bring your plan or entity into compliance, even this almost 10 month period may not be sufficient to accomplish full compliance for all regulated parties. In addition, each party's compliance will depends on the compliance of the other parties with which it interacts." (Winstead PC)
[Guidance Overview] The Likely Impact on Investment Advisors of the Proposed Fiduciary Regulation
"[T]he DOL has adopted the FINRA position that a recommendation to a participant to take a distribution from a plan is a recommendation to sell the investments in the participant's account. Thus, a recommendation to take a distribution is fiduciary advice, implicating both the fiduciary standard of care and prohibited transaction rules. As a result, fiduciary advisors will need to prudently analyze the participant's best interests, considering factors such as services and fees in both the plan and an IRA. There may be cases where a fiduciary advisor would need to recommend that the participant stay in the plan (where, e.g., the advantages of the plan outweigh the advantages of an IRA).... While the prohibited transaction relief in [the 'best interest contract exemption] also applies to recommendations to take distributions and rollover to an IRA, it will be difficult to satisfy the conditions." (Fred Reish, for Hartford Funds)
[Guidance Overview] DOL Proposes Expanded Definition of Fiduciary
"One area that plan sponsors will need to review is investment education which is provided to participants, ensure that the materials used and topics covered do not go beyond that which is permitted under the regulations, thus inadvertently making an 'educator' a fiduciary. The greater impact of the 2015 Proposal will fall on those persons (e.g., broker-dealers) who provide direct investment advisory services to plan participants and IRA holders; or who try to market to participants who are considering taking distributions from plans and rolling over these distributions to IRAs." (Seyfarth Shaw LLP)
[Guidance Overview] The DOL's Re-proposed Redefinition of Fiduciary (PDF)
26 pages. "The 250-page 'Regulatory Impact Analysis' that accompanies the proposal argues that the current definition of 'fiduciary,' promulgated in 1975, has left the door open to pervasive conflicts of interest that cost plans, plan participants and IRA owners billions of dollars a year, as a result of excessive fees and unsuitable investment choices. This [article] will discuss ... exactly what the proposal says and what it may mean to broker-dealers, insurance companies and other parties that market investments to ERISA-covered retirement plans, welfare plans and individual retirement accounts ... [and] the new proposed prohibited transaction class exemptions and the proposed amendments to existing class exemptions." (Steptoe & Johnson LLP)
Roth: Breaking Down the Buzzword in Defined Contribution Plans (PDF)
5 pages. "Many participants (and even plan sponsors) are also not aware of some of the unique similarities and differences between Roth when offered in a Defined Contribution Plan versus an Individual Retirement Account (IRA). Our objective is to provide a general overview of Roth, its role and appeal within Defined Contribution Plans, and finally, key considerations for plan sponsors in evaluating this feature in an educated and informed manner." (Portfolio Evaluations, Inc.)
[Guidance Overview] Newly Proposed DOL Fiduciary Rule: Moving to a Universal Fiduciary Standard
33-slide Powerpoint presentation. Topics include: [1] Background on existing rule; [2] Proposed fiduciary definition; [3] Carve-outs from definition; [4] Proposed best interest contract exemption; [5] Other proposed exemptive relief; and [6] Timeline for rulemaking. (The Wagner Law Group)
Four Steps to Taking a Roth Conversion After Age 70-1/2
"It is crucial that you take the RMD before doing the Roth conversion. Missing that step means that you end up with an excess contribution, in the amount of the RMD, rolled over to the Roth IRA. The excess contribution is subject to a penalty of 6% per year for every year that it remains in the Roth IRA." (Slott Report)
[Opinion] Five Ways the DOL Could Improve Its Fiduciary Proposal
"[1] Start by clarifying and narrowing the activities which result in fiduciary status.... [2] Provide a clear carve-out for the actuaries, lawyers and accountants who perform typical professional services in connection with investments.... [3] Provide a carve-out for sophisticated IRA investors similar to the carve-out for large plan investors with financial expertise.... [4] Eliminate the 'catch 22' for acknowledging fiduciary status.... [5] Fix the 'Best Interest' exemption." (Osler, Hoskin & Harcourt LLP)
More Than One Million People Increase Retirement Savings Rate; Account Balances Reach Record High
"The average 401(k) balance at the end of Q1 was $91,800 ... up 0.5 percent from last quarter and up 3.6 percent from one year ago. More than a million workers increased their contribution rate in Q1 2015, and a record 23 percent of employees have increased their contribution rates since Q1 2014. The average overall savings rate, which includes both employee and employer contributions, increased to 12.5 percent. The employee contribution rate remained constant at 8.1 percent while the employer contribution rate climbed to 4.4 percent.... For self-employed 401(k) accounts, the average balance at the end of 2014 was $144,100, a 39 percent increase since 2007. The average contribution was $22,400 at the end of 2014, a 29 percent increase since 2007." (Fidelity)
[Guidance Overview] DOL Proposes New Fiduciary Regulation and Prohibited Transaction Exemption Relief for Investment Advice Fiduciaries (PDF)
10 pages. "The Proposed Regulation, if adopted, is expected to extend fiduciary status to many investment professionals, including broker-dealers, insurance agents, pension consultants and appraisal firms, that do not consider themselves to be fiduciaries under current law.... Unlike the current regulations, the Proposed Regulation does not require that investment advice be furnished on a regular basis, or that the adviser and advice recipient mutually agree that the advice furnished will serve as a primary basis for investment decisions." [Article includes a 2-page chart summarizing the proposed amendments to existing prohibited transaction class exemptions.] (Skadden, Arps, Slate, Meagher & Flom LLP)
A Small But Important Change Proposed for Retirement Savings Rules
"The Obama proposal, which was buried in last February's budget, would exempt those with $100,000 or less in traditional retirement plans from having to make minimum required taxable withdrawals at all. Of course, they always could take out funds if they needed to (and would owe tax on the distribution) but they would not have to.... The idea is a very nice follow-up to rules Treasury adopted a year ago that would allow retirees to avoid the MRD tax on up to $125,000 of retirement savings they convert into longevity annuities." (Forbes)
[Guidance Overview] DOL Proposal Significantly Expands Fiduciary Adviser Rule
"[P]roviding advice regarding distribution planning ... would be a fiduciary act under this proposal.... The increase in the number of advisers who would be considered fiduciaries, as well as the increase in the types of services considered fiduciary acts, would significantly expand the plan sponsor's responsibilities for reviewing and monitoring outside providers. Likewise, plan sponsors would have additional responsibilities associated with reviewing and negotiating agreements with advisers to ensure they comply with general ERISA requirements and any prohibited transaction exemptions the advisers intend to use." (Calfee, Halter & Griswold LLP)
[Guidance Overview] Once More Unto the Breach: The New 'Fiduciary' Definition
"The Proposed Regulations would not require that advice be individualized to the needs of the plan, participant, or IRA owner. If the advice merely is 'specifically directed to' the participant or IRA owner, that would be sufficient to cause it to be fiduciary advice.... [T]he Preamble to the Proposed Regulations states that ... lawyers, accountants, and actuaries would not be treated as fiduciaries merely because they provide such professional assistance in connection with a particular investment transaction. Despite the Preamble statement, however, the actual language of the proposal is not clear on this point, and there is no express carve-out for such professional services.... In a departure from existing law that has been in effect since 1996, the carve-out for 'investment education' would not permit the use of asset allocation models that refer to specific investment products available under the plan or IRA." (Jones Day)
DOL Not Budging on Fiduciary Rule Comment Period
"Labor Secretary Thomas Perez indicated Thursday that his department will not extend further the 75-day comment period for its redraft to amend the definition of fiduciary under [ERISA]. When asked ... if DOL would honor the Tuesday request by industry trade groups to extend the comment period another 45 days, Perez reiterated DOL's previously stated comment guidelines." (ThinkAdvisor)
[Guidance Overview] DOL's Re-Proposed Fiduciary Definition Widely Prohibits Personalized Investment Assistance Even If the Assistance Is in Customer's Best Interest
7 pages. "The framework set up by the DOL could work conceptually, but in its current form, it would have the same effects as the original 2010 proposal -- cutting off the option for low and middle-income individuals and small businesses to receive personalized investment assistance.... The re-proposal [includes] an exemption from the prohibited transaction rules that could, if it worked correctly, preserve access to investment assistance. But the exemption does not work: it is extremely narrow, is not principle-based, and includes such impractical conditions that it is unusable." (Davis & Harman LLP)
[Guidance Overview] The New Fiduciary Regulation Proposal, Part I: All It Was Cracked Up to Be? (PDF)
"The DOL refers to the participants, beneficiaries, and IRA holders who will continue to receive conflicted advice under the Proposal as 'the investors [that] are particularly vulnerable to abuse.' The DOL also notes in the preamble to the Proposal that these consumers of advice services 'often do not read the legal documents.' Yet, the proposed exemption would leave these individuals to depend most substantially on the first two mechanisms to protect them: disclosure (which the DOL says they will not read) and integrity (which the DOL clearly believes investment advisors do not have ... at least, not in large enough measure).... The big difference is the ability of the DOL to get involved[.]" (Ferenczy Benefits Law Center LLP)
Execs See Fiduciary Proposal as Complicated, Costly
"Early assessments of the Department of Labor's fiduciary proposal find the new rules will be complicated to implement and costly for the industry, according to wealth management executives.... [A]nalysts at investment banking firm Keefe, Bruyette & Woods ... estimated that the DOL's proposal could be a 2% drag on Morgan's earnings, which the authors described as modest. For Raymond James, the analysts estimated 'roughly $2,400-$4,800 in increased compliance and litigation cost per advisor which equates to roughly $15 million to $30 million of incremental expenses.' " (On Wall Street)
Why Labor Department Gets a Say on IRA Advice
"Why does Labor's rulemaking extend to IRAs? That dates back to a 1978 agreement between the Labor and Treasury departments that is sometimes referred to as the 'peace treaty,' says Norman Stein, a law professor at Drexel University.... Under that division of labor, the Labor Department defines when advisers to retirement plans and to retirement savers are 'fiduciaries' who must put clients' interests first.... The proposal ... says IRAs and workplace plans should have similar protections, given that both benefit from tax incentives to encourage retirement security. In that way, IRAs are more like workplace plans than other investment accounts, the Labor Department proposal says." (The Wall Street Journal; subscription may be required)
[Guidance Overview] DOL Proposes Sweeping Expansion of Fiduciary Duty Rules
"The DOL mentioned and solicited advice with regard to, but did not formally propose, a 'streamlined' exemption which would allow advisers to receive compensation in connection with a plan's or IRA's purchase of certain high-quality, low-fee investment options, which might include mutual funds which are index funds or certain target date funds." (Ropes & Gray LLP)
Seven Ways You Can Mess Up Your Required Minimum Distribution
"[1] Using the wrong table to determine your life expectancy factor.... [2] Taking your RMD from the wrong type of account.... [3] Failing to adjust your prior year-end balance for an outstanding rollover or transfer.... [4] Failing to adjust your prior year-end balance for a recharacterization of a Roth IRA conversion made in the year after conversion.... [5] Taking your RMD from your spouse's retirement account.... [6] Forgetting to take your RMD altogether.... [7] Failing to timely correct any mistakes you uncover." (Slott Report)
Asset Location for Stocks in a Brokerage Account Versus IRA Depends on Time Horizon
"[W]hile the traditional 'rule of thumb' for asset location is that tax-inefficient bonds go into an IRA, while equities eligible for preferential tax rates go into a brokerage account, the reality is that for investors with long time horizons the optimal solution may be the opposite. Once stock dividends and portfolio turnover are considered, the ongoing 'tax drag' of the portfolio can be so damaging to long-term returns that placing equities into an IRA may be more efficient, even though they are ultimately taxed at higher rates! ... [In] the end, good asset location decisions depend not only on returns and tax efficiency, but an investor's time horizon as well!" (Michael Kitces in Nerd's Eye View)
[Opinion] Watered-Down Fiduciary Rule May Be the Best Case Scenario for Investors
"While a clean fiduciary standard offers brokers and insurance agents a straight-forward path for delivering conflict-free investment plan advice, a 'best interest contract exemption' makes that path fuzzy and subject to attack in court. That may not be a bad thing.... [R]etirement plan lawsuits, brought by lawyers like Jerry Schlichter, have been more successful in driving down excessive 401k fees than DOL fee disclosure regulations. Maybe a fuzzy fiduciary standard will fuel more suits that drive the cost of advice lower than a clean fiduciary standard would?" (Employee Fiduciary)

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