Peter Gulia

I haven't analyzed the questions and have no view in either (or any) direction. Rather, I ask about whether a law firm has delivered a written opinion because in my experience the presence or absence of such an opinion sometimes might convey a little indirect information about how comfortable or uncomfortable a view is. I confess that I'm searching for a shortcut on a question I don't have time to think about.

Is any BenefitsLink reader aware of any U.S. law firm that has risked its owners' reputation and liability by delivering a written opinion that supports the zbenefits view?

David Rigby, thank you for pointing us to the rule. (It's especially helpful to me because all of my experience with a cash-balance plan was before the 2006 Act.) While to me it's unwise for an employer to try to do what MGOAdmin describes, could a plan's formula for a participant's account balance specify that it is (at all times, not only after retirement age but also before) the result of applying the contribution credits, the interest credits, and a subtraction of $100 (not referring to some described "fee" or "expense", but rather a specified amount)?

But could a plan's document provide that the benefit is the otherwise determined notional account balance minus a specified amount?

If the expense saved by changing a plan year or an insurance-contract year makes dealing with the question worthwhile, consider asking the Internal Revenue Service for a letter ruling, perhaps seeking an expedited ruling.

To add to the ambiguities and confusions: The 1969 (amended 1979 and later) interpretive bulletin partially quoted above, although reprinted in the Code of Federal Regulations, is not necessarily a regulation or a rule. And reasonable minds can differ about how much authority Congress delegated. For these and other reasons, it is unclear how much deference a court would give to the interpretive bulletin. Until the questions described above are litigated, we tell a client about the range of possible interpretations and arguments.

Thank you for the vote of confidence. But I didn't express any view; rather, I asked a question to help uncover more of the hypothetical facts. One might wonder why an employer is willing to pay if restoration should be had from a service provider that received amounts the service provider was not entitled to. And understanding those reasons (which might be proper and loyal to the plan) might help in an analysis of whether an employer's payment is a "restorative payment" described in the tax-law interpretation.

Has the responsible plan fiduciary exhausted its efforts to get from the overpaid service provider the excess the service provider was not entitled to?

What if an employer says its nonelective contribution toward all health and welfare benefits is 10% of salary? (Assume that no benefit is "self-funded"; rather, each is provided by a regulated insurance company.) Would the fact that the contribution is set in relation to another measure of each employee's value to the employer support an argument that the contribution does not discriminate against increasing age? Would this hypothetical plan be meaningfully different, in an employee's perspective, from what would result if the employer provided a 10% salary increase and made all health and welfare benefits employee-pay-all?

John Feldt, that is the clearest thing I have ever read about preapproved documents. Thank you!

Were the plan's participants offered a single sum? If so, do you think the insurer is worried about an adverse-selection risk because the 92-year-old decided that a life annuity is a better deal than the offered single sum?

Mike Preston's practical suggestion for a way to illustrate a non-imposition of, or exclusion from, a State's tax is smart.

Thank you for the yet more helpful observation.

Thank you for the helpful observation. Internal Revenue Code section 410(a)(1)(A) states: "A trust shall not constitute a qualified trust under section 401(a) if the plan of which [the trust] is a part requires, as a condition of participation in the plan, that an employee complete a period of service ...." If the employer had highlighted and fairly explained the issue and the facts in its application; the IRS delivered a clean determination that the plan in form is tax-qualified; the previously disclosed facts of the employer's business operations did not change; and the employer administered the plan according to its terms and in the way the employer had previously explained to the IRS, shouldn't the employer get some "credit" for having acted in good faith?

austin3515, thank you for recalling the IRS announcement. It starts a statute-of-limitations period on "the plan's filing of a return from the applicable Form 5500 series[.]" And the IRS might assert that "filing" means "a complete and accurate Form 5500 series (including all related schedules." So perhaps this takes us to your observation that the IRS proposes to require more information.

Is there an opportunity to identify the plan's trust (or each trust if there is more than one)? (If the statute of limitations has run out on a threat to tax the trust's income, that sometimes can help move a negotiation.)

If one is concerned that the Internal Revenue Service might disagree with an employer's interpretation that a job classification is not a disguised service condition, could one file a Form 5307 application for a determination?

ESOP Guy, thank you for the good help. It always feels a little "too good to be true" that the time for furnishing participants even a summary of the annual report is almost a full year after the end of the year reported on.

If an ERISA-governed retirement plan with a calendar plan year extends from the July date and does not file the Form 5500 annual report until mid-October, what is the due date for furnishing to participants a summary annual report?

No, I think people are honest. Rather, it’s the Internal Revenue Service that suggests that a retirement plan’s administrator should not rely on a participant’s written statement that she has written evidence to substantiate her hardship. My observation is not about the many people who do not make a false statement. Rather, it’s that the IRS hasn’t thought through whether a requirement to furnish documents (rather than confirm that the claimant has them) would get the results the IRS imagines. In my experience, a requirement to submit supporting documents often delays the delivery of money to people who really need it (and already had fairly stated a legitimate hardship). But a paper requirement doesn’t screen out the falsity of a claim made by one of the determined few. Is the purity of a provision against a too-early distribution so important that an employer should be forced to treat its employees as misbehaving children? If all participants bear the expense of receiving, processing, and keeping supporting documents that an employer will have chosen (prudently) not to investigate, what is the purpose of having those documents?

Based on the April 1 release, it seems more likely that the IRS newsletter article might be a reaction to something heard one month before at the February 26-27 joint meeting of the Great Lakes, Gulf Coast, and Pacific Coast Area Tax-Exempt and Government Entities Division councils and Mid-Atlantic and Northeast Pension Liaison groups. That Friday’s talk included an idea about relying on the participant (rather than the plan’s administrator) to keep the evidence that shows a hardship expense. Stephen Swirnow, a lawyer at T. Rowe Price, explained a view that a claims procedure for hardship distributions that relies on the participant to keep his or her documents that support the hardship might, if the plan’s administrator also uses several compensating controls, be sufficient to meet tax-law requirements. While everyone concurs that a 401(k) plan’s administrator should use honest efforts to detect and prevent fraud, that’s hard to do. In real transactions, a fraudster faces the opposing interests of a person that does not want its money or property stolen. But a hardship-claiming participant takes money from his or her individual account; other participants do not suffer a direct loss when their plan pays a hardship distribution its claimant was not entitled to. Scrutiny of hardship claims might slow down payments to participants with legitimate claims, and might not detect enough frauds to be worthwhile. For example, requiring a plan’s administrator to read a claim’s supporting documents that show the hardship expenses might not accomplish much because it’s too easy for a participant to fabricate documents that look real. (The IRS’s newsletter view seems to follow an unstated assumption that requiring a claimant to furnish supporting documents will deter at least some false claims because some would-be claimants are too lazy or uncreative to fabricate documents.) Putting too much effort on hardship claims might be an imprudent expense in a plan’s administration. If a plan pays a service provider to investigate (or even to read, without any further inquiry) hardship claims, how does incurring such an expense advance the exclusive purpose of providing retirement benefits? What do BenefitsLink mavens think?

Without wading into the tax accounting discussion, why ever would a fiduciary discard a record if electronic storage remains inexpensive?

Cédula is an identity document.

Joking aside, some filers prefer a paper form because the filer believes that the Internal Revenue Service does not transcribe every entry into the computer system and suffers some lag time before the transcribed entries are available to those who do selections for examinations, perhaps marginally decreasing the probability of selection. Beyond this, is there any other reason a filer might prefer the paper form?

Even if a fiduciary might have no separate duty to maintain a plan as a tax-qualified plan, a plan's administrator must "discharge [its] duties with respect to a plan ... in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of [ERISA's] title and title IV." A disappointed participant might allege that a failure to allocate individual accounts according to the plan's provisions (including those that state allocations following the ADP test) resulted from the administrator's failure to use "the care, skill, prudence, and diligence" required by ERISA section 404(a)(1)(B). If there is such a breach, ERISA section 409 might make the fiduciary "personally liable to make good to such plan any losses to the plan resulting from each such breach[.]" A participant might assert that a tax that would not have been incurred but for the fiduciary's breach is such a loss. Of course, whether a plan's administrator breached its standard of care is a factual inquiry.