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Question re: invalidating TDA non-ERISA status


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Client had a non-ERISA TDA (403(b)) plan.  The plan did not/does not offer loans.  The client converted the plan to an ERISA plan in 2009.  An employee who is a participant in the plan applied for a loan with MetLife.  MetLife sent the client a form to sign as the plan administrator.  The form relates to the private loan (outside the plan), which MetLife says it will not approve for the employee if she has a loan in a current plan with the client because she is still employed with them.  Can client sign the form as the plan administrator of the current TDA plan and say the employee does not have loans? OR will this invalidate the MOA non-ERISA status?

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The Labor department, in some nonrule guidance, has distinguished making a plan-administration decision and furnishing factual information so someone else can make the plan-administration decision.  For example:  https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/advisory-opinions/1994-30a

 

For a rule or regulation made in compliance with the Administrative Procedure Act and other law, a court interprets an ambiguous statute by Chevron-deferring to the agency’s interpretation (unless the interpretation is beyond a permissible interpretation).

 

Except for 29 C.F.R. § 2510.3-2(f), none of the Labor department’s guidance is such a rule.

 

A court’s reasoning about whether an employer established or maintained a plan might be quite different from the Labor department’s reasoning.

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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What does this mean:   "The client converted the plan to an ERISA plan in 2009.  " ?   As I read it, you are telling us that this Plan became an ERISA plan in 2009.  If somehow this is not what you meant (?), I suggest the client send Met Life a note telling them that the TDA Plan does not permit loans.  Generally speaking, questions of fact, such as how old a participant is or does the plan contain a loan provision, can be answered without risking the Non-ERISA status.  Your question is quite confusing so I am a little concerned that the facts are not clear.  How many plans are there?  What plan became ERISA in 2009?  I also never believe a plan is Non-ERISA without examining all the facts in a situation.  Why does the client think the TDA plan is or was Non-ERISA?   This plan may already be ERISA for reasons that you are not even being told about.  Be careful about this.  If the DOL subsequently finds this plan to have been ERISA, they will seek penalties for 5500's not filed, etc.  Do not put yourself in a position where the client could suggest that you told or reassured them that it was Non-ERISA.

Patricia Neal Jensen, JD

Vice President and Nonprofit Practice Leader

|Future Plan, an Ascensus Company

21031 Ventura Blvd., 12th Floor

Woodland Hills, CA 91364

E patricia.jensen@futureplan.com

P 949-325-6727

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