Retirement Plans Newsletter

January 20, 2017

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Raffa Financial Services, Inc. - RFSI
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Dana Consulting Group, Ltd.
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The Benefits Consulting Group, Inc.
in IL

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Retirement Strategies, Inc.
in GA

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Retirement Strategies, Inc.
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[Official Guidance]

PBGC Interest Rate Summary, January 2017
"In response to feedback from practitioners and plan participants, PBGC reorganized and enhanced the material included in this monthly summary.... [This report provides], in one place, a summary of current interest rates that relate to various calculations required under Title IV of ERISA. PBGC posts this summary each month, as soon as all of the new information is available." [Chart includes January 2017 rates for ERISA 4022 Lump Sum Interest Rates and Variable-Rate Premiums, as well as Q1 Rates for ERISA 4044 Annuities, Late Premium Payments, and Late Withdrawal Liability.]
Pension Benefit Guaranty Corporation [PBGC]

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[Guidance Overview]

Impact of the Proposed IRS Mortality Tables and Strategies to Reduce its Effects
"Since life expectancies are greater in the RP-2014 mortality tables compared to the RP-2000 mortality tables, there will likely be an increase in DB plans' funding target liabilities, which, in turn, will increase the plans' minimum funding requirements and PBGC premiums. The impact of changing mortality tables is dictated by the demographics of the plan."
Cammack Retirement Group

[Guidance Overview]

DOL Issues Two New Sets of Fiduciary Rule FAQs
"This set of FAQs describes the reasons that the DOL considered the conflict of interest rule to be necessary, and seeks to address a number of questions and concerns that have been raised. For example, the FAQ guidance explains that while the rule will require changes in the financial services industry that the DOL believes will better protect retirement savings, it will not require advisers to move clients from commission-based accounts to fee-based accounts, and it does not mean that a financial adviser must always identify the 'absolute best product' or be liable any time an investment loses money (so long as the financial adviser meets the "best interest" standard)."
Morgan Lewis

Brief of Hospitals to Supreme Court in Consolidated Church Plan Cases (PDF)
79 pages. "Nothing in the statute requires 'churches' to establish pension plans for affiliated organizations; to the contrary, the text is incompatible with such a requirement.... Nothing in ERISA's history supports such a requirement. And such a requirement would serve no apparent purpose, beyond arbitrarily excluding certain plans maintained by religious organizations. It is entirely unclear what church establishment even means and if it is anything more than an empty formalism." [Advocate Health v. Stapleton, Nos. 16-74, 16-86, 16-258 (on appeal to Supreme Court)]
SCOTUSblog

Ninth Circuit En Banc Reverses Tibble, Says Ongoing Duty to Monitor Investments Made Fiduciary Breach Claim Timely
"According to the court, the participants reasonably believed that the trial court's limitations period ruling precluded them from presenting claims based on the failure to monitor the longer-held investments, and they properly raised the issue on their first appeal. Substantively, the court held that the duty to monitor investments is continuing in nature, resulting in a series of potential breaches as an investment is retained over time. The court also distinguished ERISA's three-year limitations period, which starts on the earliest date of actual knowledge of a breach, since applying the continuing breach theory to those cases would read the actual knowledge standard out of the statute." [Tibble v. Edison Int'l, No. 10-56406 (9th Cir. Dec. 16, 2016)]
Thomson Reuters / EBIA

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Interesting Angles on the DOL's Fiduciary Rule, Part 34
"If the adviser's comments at the meeting are considered to be 'general communications,' then they are not fiduciary advice. Also, if the meeting is a 'widely attended' speech or conference, the comments would be considered general and, therefore, not fiduciary advice. On the other hand, if the seminar is not considered to be 'widely attended' and if the adviser's comments 'suggest' a particular course of investment action, then -- probably unbeknownst to the adviser, the comments could be fiduciary investment advice."
FredReish.com

IMOs Call Proposed Class Exemption Unworkable
"Regulatory thresholds proposed for independent marketing organizations (IMOs) to participate in the sale of fixed indexed annuities are so high as to be virtually worthless and unworkable for the bulk of the IMO industry, industry experts said. [The DOL proposed class exemption requires] that IMOs must have generated an average of $1.5 billion in annual fixed annuity premium over each of the three previous fiscal years as one of the threshold requirements to be issued a 'financial institution' exemption under the DOL's fiduciary rule."
InsuranceNewsNet.com

PBGC Wins Round Over Pension Liabilities of Durango Georgia Paper Company
"It's the Employee Retirement Income Security Act and its regulations -- not the bankruptcy code -- that control the calculation of the PBGC's claim for unfunded benefit liabilities, Bankruptcy Judge John S. Dalis held Jan. 18. Granting partial summary judgment to the PBGC, Dalis rejected the trustee's request to apply an independent valuation method controlled by the bankruptcy code, which would have meant using the controversial 'prudent investor' standard." [In re Durango Georgia Paper Co., No. 2-21669, (Bankr. S.D. Ga. Jan. 18, 2017)]
Bloomberg BNA

SEC Scrutiny of Public Pension Advisers a Top Priority
"Public pension advisers will be in the crosshairs, the [SEC] stated. That's great news for public pension stakeholders, such as government workers who depend upon these plans for their retirement security and taxpayers who also contribute to them."
Forbes

SEC Publishes 2017 Examination Priorities
"Launched in June 2015, ReTIRE is a multi-year examination initiative focusing on registered investment advisers and broker-dealers, and the services they offer to investors with retirement accounts. In 2017, these examinations will likely focus on, among other things: registrants' recommendations and sales of variable insurance products; the sales and management of target date funds; and controls surrounding cross-transactions, particularly with respect to fixed income securities.... [The Office of Compliance Inspections and Examinations] will examine advisers to municipalities and other government entities to assess how they are managing conflicts of interest and fulfilling their fiduciary duty."
Practical Law Company

Another Question is Answered in the Who's the Employer Q&A Column
"After the release of Rev. Proc. 2017-4, is it possible to receive a ruling on whether two particular companies constitute an affiliated service group?"
BenefitsLink

Benefits in General

[Guidance Overview]

DOL Publishes Final Regs on Disability Claims and Appeals Procedures (PDF)
"The final rule revises and strengthens the current rules primarily by adopting certain procedural protections and safeguards for disability benefit claims that are currently applicable to claims for group health benefits pursuant to the [ACA]."
United Actuarial Services, Inc.

[Guidance Overview]

DOL Issues Final Rule on Disability Benefit Claims and Appeals
"Employers should update all relevant disability benefit plan documents, SPDs, claims forms, denial letters and related systems to comply with the changes to the final requirements for claims and appeals by the effective date. Employers also might want to discuss with legal counsel the possibility of adding details about any contractual limitation periods on claims to all ERISA-covered plans, SPDs and denial letters, as the DOL seems to be taking the position that the requirement is not limited to disability claims."
Willis Towers Watson

Executive Compensation and Nonqualified Plans

[Guidance Overview]

Annual Reporting Requirements for Incentive Stock Options and Employee Stock Purchase Plans
"Returns for ISO and ESPP transactions must be submitted to the IRS on Form 3921 (for ISOs) and Form 3922 (for ESPPs).... [E]ven though Forms 3921 and 3922 may be found on the IRS website, you are not permitted to print and file these forms with the IRS; the IRS will only accept the official forms ordered from the IRS."
Orrick

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BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2017 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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