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Employer Paid Plan Fees - ERISA 403(b) Status


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Most likely yes. This is not all that different from an employer contribution, which would clearly shift the plan to ERISA status. 

Employee benefits legal resource site

The opinions of my postings are my own and do not necessarily represent my law firm's position, strategies, or opinions. The contents of my postings are offered for informational purposes only and should not be construed as legal advice. A visit to this board or an exchange of information through this board does not create an attorney-client relationship. You should consult directly with an attorney for individual advice regarding your particular situation. I am not your lawyer under any circumstances.

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Yes, I would.  It would be impermissible to pay settlor fees from plan assets, so if the DOL used those payments as indications of an ERISA plan, it would make it impossible to have a non-ERISA plan.  I was interpreting "related 403(b) fees" as meaning fees associated with the management of assets under the contract itself.

Employee benefits legal resource site

The opinions of my postings are my own and do not necessarily represent my law firm's position, strategies, or opinions. The contents of my postings are offered for informational purposes only and should not be construed as legal advice. A visit to this board or an exchange of information through this board does not create an attorney-client relationship. You should consult directly with an attorney for individual advice regarding your particular situation. I am not your lawyer under any circumstances.

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Well, there is always the question of whether the DOL is right in saying that 403(b) plans need not be ERISA plans, even if the employer has a written plan document that complies with IRS requirements.  I suppose a participant lawsuit could argue otherwise.  But barring that, compliance with the DOL's enforcement position seems safe.

Employee benefits legal resource site

The opinions of my postings are my own and do not necessarily represent my law firm's position, strategies, or opinions. The contents of my postings are offered for informational purposes only and should not be construed as legal advice. A visit to this board or an exchange of information through this board does not create an attorney-client relationship. You should consult directly with an attorney for individual advice regarding your particular situation. I am not your lawyer under any circumstances.

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