Peter Gulia

Using only the FederalRegister.gov public website (for 1994 and later), restricting the search to notices, and requiring “prohibited transaction” and “real property” to appear in such a source, that search yields 350 documents. (Going back to September 1974 might increase it some.) For a good search, you’d want a professional librarian using an editorially-enhanced database tool designed for professional researchers. And a good librarian can help you design search terms and qualifiers that filter out sources that would waste your time and attention while not missing sources that are useful. I suggest Jenkins Law Library https://www.jenkinslaw.org/research/help/pricing-information/research-pricing.

kcbirm and WCC, thank you for your good help. Any others' observations?

When a retirement plan’s fiduciary (whether it’s the plan’s sponsor/administrator, a § 3(38) manager, or a § 3(21) advisor) evaluates investment funds to consider which should be added to or removed from a plan’s menu for participant-directed investment, which sources of information does a fiduciary use? Does a fiduciary look at the Beta, R2, Sharpe Ratio, Standard Deviation? How does these measures aid, or distract from, one’s analysis? Does a fiduciary use Morningstar? Lipper? Bloomberg? Litman Gregory? Zacks? Zephyr? Others? Which sources do you like, and why?

MoJo, thank you for the information. If you can indulge my curiosity: What questions does an EBSA examiner to test whether a plan’s fiduciary really understands the indirect compensation?

If (to complete the plan's termination) the plan pays and delivers the plan's final distributions of money and property before the end of 2017, won't everything be distributed? If so, would the Form 1099-R tax-information reports be one report for the year's minimum-distribution amount and another report for all else?

If the plan's fiduciary decides the plan no longer wants the life insurance contract and would surrender it, the plan may sell, for fair-market value, the contract to the participant. A class prohibited-transaction exemption sets conditions for doing this.

In 26 C.F.R. § 1.401(k)-1(d)(3)(iii)(B)(3): the enumeration of “or the employee’s spouse, children, or dependents” is disjunctive; the mentions of IRC § 152 are in a parenthetical phrase that refers only to “dependents”; and the noun “children” is unmodified by an adjective or a reference to a definition. As always, this is not advice to anyone.

Here's a link to an advisory committee's report on a need to update the Treasury department's rule. https://www.irs.gov/pub/irs-pdf/p4344.pdf

I remember the Florida Bar’s request that Florida’s Supreme Court approve a proposed advisory opinion. Through trade associations, I participated in several opposition briefs. One of our arguments became the court’s reasoning. The court refused, completely, to approve the proposed opinion, and even to publish a revised line-drawing. The Florida Bar re Advisory Opinion – Nonlawyer Preparation of Pension Plans, 571 So.2d 430 (Fla. Nov. 29, 1990). If anyone is wondering, I have for many years held (and published) my view that anyone should be free to provide legal advice, and whoever provides advice should be responsible for it.

No, I'm suggesting that one wishes the "ROBS" providers put into their service the kinds and degrees of quality controls and caring I believe austin3515 puts into his or her services. What matters is not the attorney-at-law or CPA designation or license, or even the education leading to it; what matters is a sincere recognition that a client or a service recipient relies on our communications.

In the Federal employment-tax rule, 26 C.F.R. § 31.3121(b)(7)-2 https://www.ecfr.gov/cgi-bin/text-idx?SID=7c05ec91250a858b871fea37a8379202&mc=true&node=se26.17.31_13121_2b_3_27_3_62&rgn=div8, my word-processing search found no use of the word "spouse".

From sales materials and implementation kits I’ve seen from the transactions I’ve undone, it seems those “ROBS” service providers are somewhat careful about describing how a retirement plan may buy employer securities, and don’t say that any particular business is a good investment. So reality might be closer to austin3515’s observation. That frame might suggest another of the available remedies: A nonlawyer is liable if his, her, or its “client” suffered harm because the “client” relied on the nonlawyer’s inappropriate advice. Courts have not hesitated to impose liability on a nonlawyer for giving incorrect, or even incomplete, advice. A nonlawyer is held to at least the same standard of care and expertise as a competent lawyer. And at least one court decision suggests a nonlawyer’s standard of care “should be no less than that required of a licensed attorney, and conceivably even a higher standard would be appropriate – strict liability, for example, to deter those who might be otherwise tempted to profess a competence they have no right to claim.” Wright v. Langdon, 274 Ark. 258, 623 S.W.2d 823, 826 (1981). In other contexts, doing without a license an activity that lawfully is done only by those with the license is presumed hazardous. So a court might treat a nonlawyer’s unlicensed practice of law as negligence per se to result in strict liability. As MoJo suggests, stating and proving a claim is hard work.

A local-government employer, as a political subdivision, agency, or instrumentality of the State (or of the State's political subdivision or its agency or instrumentality) has only the powers provided by State (and local) law. And a local-government employer's duties or obligations, if any, concerning collective bargaining or collective discussion, if any, is governed by State law. The employer will want its lawyers' advice on those sources of law.

For a fiduciary-breach claim, ERISA § 413 states a statute of limitations and a statute of repose. For a participant’s, beneficiary’s, or alternate payee’s claim for a benefit, ERISA’s text specifies no limitations period, but courts have invented Federal common law. Courts’ interpretations vary widely. Many try to follow the court’s perception of some relevant State’s limitations period for a claim under a written contract. Also, a court might apply a limitation stated in the plan’s governing document. Different law applies for the PBGC’s claims against an employer. If anyone is considering arguing a statute-of-limitations defense or a statute-of-repose defense, even as a negotiating tactic, that person should lawyer-up.

To spark some further discussion, let’s imagine one can prove that the “ROBS” service provider was both an IRC § 4975(e)(3)(B) fiduciary of the rolled-away Individual Retirement Account and an ERISA § 3(21)(A)(ii) investment-advice fiduciary of the retirement plan that bought employer securities. But even if one can prove that the “ROBS” service provider was such a fiduciary, what remedy does that set up?

Thank you, RatherBeGolfing, for calling our attention to this information. For those who want to read beyond the good summary, here's a link to Judge Lamberth's opinion: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1523-78

Beyond others’ observations, consider (and get your lawyer’s advice on) two further ideas about how to illustrate past performance: If you intend a communication as one meant to follow 29 C.F.R. § 2550.404a-5 for disclosures to directing participants, one counts average annual total return and total annual operating expenses for an investment alternative that is not an SEC-registered fund as if it were. Even if an RIA’s model is not an investment alternative, someone might prefer to illustrate it as if it were. Consider how the RIA would comply with investment-adviser law standards for making a communication not misleading.

I don’t venture answers to your questions, but suggest one aspect for the plan administrator’s interpretation of the Form 5500 Instructions. In applying the bit you quoted, one might separate IRC § 72(p) from ERISA § 408(b)(1). For at least some plans and some circumstances, a participant loan might fail to meet a condition concerning income tax treatment under IRC § 72(p) without necessarily failing to meet the conditions for the ERISA § 408(b)(1) exemption. For example, if a participant’s vested account balance when the loan was made was $300,000, a loan of $100,000 could be adequately secured under 29 C.F.R. § 2550.408b-1(f)(2) and, depending on the plan’s and a procedure’s provisions, could meet all conditions of 29 C.F.R. § 2550.408b-1.

The Form 5500 Instructions describe as an “active” participant “any [natural person] who [is] earning or retaining credited service under the plan[.]” This is ambiguous because the mention of service doesn’t say whether it refers to eligibility service, accrual service, vesting service, or participation service. One might be tempted to resolve an ambiguity by referring to the concept of an entry date. And one might invent an interpretation that is logically consistent with 29 C.F.R. § 2510.3-3(d)(1)(ii), a portion of the rule on which the Labor department grounded this bit of the Form 5500 Instructions. Does the plan’s document specify an entry date for those who do not meet eligibility conditions for any accrual other than the prevailing-wage accrual? If not (or if that provision is not what the plan’s sponsor desires), is it feasible to amend the plan to specify such an entry date? Or does the plan’s text support a loyal, prudent, and impartial interpretation that an entry date for a prevailing-wage accrual is the first day on which the employee first performs or otherwise is credited with an hour of accrual service allocated to a prevailing-wage project? Consider establishing each person’s entry date (for the first kind of accrual that makes her a participant), and then applying the participant-counting rules of the Form 5500 Instructions. Consider too that a plan administrator’s decisions about who is or isn’t a participant matter for communications and other purposes beyond Form 5500 reporting. A plan’s administrator might consider circumstances in which someone not counted as a participant for the Form 5500 report is a participant within the meaning of ERISA § 3(7).

If a church plan elects to be governed by the Employee Retirement Income Security Act of 1974, wouldn't ERISA's command for annual reports apply? If so, wouldn't there be a Form 5500 report on which the plan's administrator could attach the election statement?

Juan Kelly and Luke Bailey, thank you for the nice help!

Any help? And is there some other reason why big employers don't do this?

KEC79, perhaps this is an opportunity to show your client why it needs YOUR advice.

Before the plan's administrator acts under an assumption that it should require an assurance that a domestic-relations order will not be presented, the administrator might want its lawyer's advice about whether the plan's provisions support imposing such a condition on a participant's claim for a distribution.

How does an adoption-agreement form that goes with a volume-submitter document handle these questions?