Peter Gulia

Thanks, Belgarath and Paul I. 401(k)(16) allows a no-cost plan with no nonelective or matching contribution as a way to not suffer a tax or other consequence under a State’s play-or-pay law. In finding reasons for a business owner to choose an employer-maintained plan over an absence of ERISA fiduciary responsibility, getting the employer an opportunity to say it has a “401(k) plan” might matter (perhaps for some employers). Interesting point about only one payee for all pay deductions for retirement contributions. Likewise, for an employer otherwise exposed to many subnational laws, using an ERISA-governed plan avoids multiple laws and conflict-of-laws issues. (Had States making play-or-pay laws been smarter, they would have made a compact for all those States to use one IRA provider. And the States’ laws might have included an ordering rule to let one State’s default contribution suffice under all States’ laws.) Paul I, do you think some service providers for § 401(k)(16) plans will offer to serve as a plan’s administrator so an employer could do nothing in deciding claims for distributions, deciding whether a domestic-relations order is qualified, filing Form 5500 reports, and doing other plan-administration tasks?

Beginning with 2024, new Internal Revenue Code § 401(k)(16) sets up a new kind of individual-account retirement plan—a starter 401(k) deferral-only arrangement. For relief from top-heavy treatment and from actual-deferral-percentage nondiscrimination constraints, the price is providing no contribution beyond elective deferrals, and limiting them to $6,000 (or $7,000 for those 50 and older). Under which conditions would an employer prefer a starter 401(k) over sending payroll deductions to Individual Retirement Accounts? Is it about saying, in recruiting workers, that the employer has a “401(k) plan”? Under which circumstances would it be rational for an employer to pay (instead of letting participants bear) all or some of a starter 401(k)’s plan-administration expenses?

And that notice of proposed rulemaking helpfully states: “Taxpayers, however, may rely on these proposed regulations for periods preceding the [proposed] applicability date.”

A practitioner wants both publications. Each has some topics not as thoroughly covered in the other. And comparing these books’ explanations on a point helps one check for accuracy and thoroughness. 401(k) Answer Book is an Internet publication, no longer restrained by print update cycles. https://law-store.wolterskluwer.com/s/product/401k-answer-book-pension3-mo-subvitallaw-3r/01t0f00000J4aDaAAJ The book includes many of the authors’ forms of notices, and checklists.

Even if neither cybersecurity insurance nor fiduciary liability insurance is statute-prescribed, fidelity-bond insurance is. The Employee Retirement Income Security Act of 1974 makes it a fiduciary breach (and a Federal crime) for a person to handle plan assets or serve as a plan’s fiduciary unless the person is “bonded” with sufficient ERISA fidelity-bond insurance. (Perhaps because both labels begin with the letter “F” and use a word derived from Latin, many people confuse fidelity-bond insurance and fiduciary liability insurance. They are different kinds of insurance for different losses. Fidelity-bond insurance covers a theft.) The minimum fidelity-bond insurance coverage ERISA expressly requires is 10% of the amount the covered person handles, except that the statute ordinarily does not expressly require more than $500,000 or, if the plan holds employer securities or is a pooled-employer plan, $1 million; and requires at least $1,000 (even if the amount the covered person handles is less than $10,000). Fidelity-bond insurance is a plan’s expense, which may be paid from the plan’s assets. A fiduciary who knows another fiduciary breached a duty to get fidelity-bond insurance, or to require an employee, agent, or other service provider to be bonded, is liable for not making reasonable efforts to remedy the other fiduciary’s breach. That liability might include restoring the plan’s loss that would have been insured. ERISA permits, but does not require, fiduciary liability insurance. A fiduciary must at least consider obtaining this insurance, and should buy it if in the plan’s circumstances an experienced fiduciary acting with the care, skill, prudence, and diligence ERISA requires would do so. A retirement plan may buy fiduciary liability insurance “if such insurance permits recourse by the insurer against the fiduciary in case of a breach of a fiduciary obligation by such fiduciary.” If the insurance contract permits (or at least does not preclude) the insurer’s recourse against a breaching fiduciary, the “premium”—insurance jargon for the price one pays for insurance coverage—may be paid by the plan. If an insurance contract precludes recourse against a breaching fiduciary, a retirement plan cannot pay the portion of the insurance price that is attributable to the non-recourse provision. An insurer might allow more than one payer to pay the insurance price, and might, for the payers’ convenience, allocate the overall price into portions—a price attributable to the incremental value of the non-recourse provision, which is the price to be paid by a person other than the plan; and a price that is the difference between the total price and the price of the non-recourse provision—that is, the portion of the price that can be paid from a plan’s assets without violating ERISA. For more information, see chapter 6 in ERISA: A Comprehensive Guide (Wolters Kluwer).

About code 3D, the 2022 instruction does not mention § 403(b), but the 2023 instruction will include § 403(b). “The list of plan characteristics codes for Lines 8a and 8b of Form 5500 and Lines 9a and 9b of Form 5500–SF are being amended to add ‘‘403(b)’’ after ‘‘403(a),’’ to read as follows: ‘3D: Pre-approved pension plan—A pre-approved plan under sections 401, 403(a), 403(b), and 4975(e)(7) of the Code that is subject to a favorable opinion letter from the IRS.’” Annual Information Return/Reports [final forms revision], 88 Federal Register 11984, 12000 n. 49 (Feb. 24, 2023), available at https://www.govinfo.gov/content/pkg/FR-2023-02-24/pdf/2023-02653.pdf.

Thank you for sharing the information with me and our BenefitsLink neighbors.

About a choice Bill Presson and Bri allude to: If a plan’s administrator skips an audit for a year and the next year calls for an audit, an independent qualified public accountant’s professional standards require some work about comparisons between the audited year’s and the preceding year’s financial statements. Skipping an audit (or a review, compilation, or agreed-procedures engagement) for a year sometimes results in not detecting an error that, with delay, becomes more burdensome to correct. Either point might affect a later year’s IQPA fee. With upcoming changes about some measures counting only participants with an account balance and some plans increasing an amount for an involuntary distribution, we might anticipate more questions about plans that fall below an audit threshold but bear a significant possibility of reentering an audit requirement. For some of those, a plan’s administrator might evaluate, for an “off” year, whether getting some service of a certified public accountant is helpful for the plan’s administration.

Internal Revenue Code of 1986 § 4972(c)(6)(B) relieves from counting as nondeductible contributions (for the extra § 4972(a) tax on them): “so much of the contributions to a simple retirement account (within the meaning of section 408(p)), a simple plan (within the meaning of section 401(k)(11)), or a simplified employee pension (within the meaning of section 408(k)) which are not deductible when contributed solely because such contributions are not made in connection with a trade or business of the employer.” http://uscode.house.gov/view.xhtml?req=(title:26%20section:4972%20edition:prelim)%20OR%20(granuleid:USC-prelim-title26-section4972)&f=treesort&edition=prelim&num=0&jumpTo=true Congress enacted this, in Economic Growth and Tax Relief Reconciliation Act of 2001 § 637, to help make it feasible for an employer, even if the employer is not a trade or business, maintain some individual-account retirement plan for domestic workers. You might advise your client about which of the three kinds of recognized plans, and which benefit structures, fit the needs and interests of the employer of the domestic workers. For an explanation about how an employer of domestic workers might not be a part of the same § 414(b)-(c)-(m)-(n)-(o) employer as trades or businesses, even if commonly controlled by the same natural person, see Derrin Watson’s Who’s the employer? book.

Thanks. Using six-calendar-months-after follows the rule for 70½. But what does the software do about someone born on the last day of March, the last day of May, the three last days of August, the last day of October, or the last day of December? (For those, the sixth month after lacks the same numbered days.)

Does anyone know how Relius software looks for 59½? Is it 183 days after the 59th birthday? Or something else?

If the plan’s trustee made fiduciary findings that the appraiser was qualified and independent, perhaps the trustee’s record of those findings includes or refers to evidence that shows the desired fact statements? If the plan’s trustee or the employer paid the appraiser her fee, perhaps the tax-information reporting shows the Employer Identification Number? Beyond those fact-gathering pointers, one or more of the plan’s fiduciaries might want each’s lawyer’s advice about whether there might be a claim grounded on the appraiser’s negligence, what statute-of-limitations or repose period governs such a claim, whether law regarding a decedent’s estate accelerates a time bar on claims, and whether a prudent fiduciary should or should not pursue a claim.

Are you sure there was a distribution from Plan Origin, followed by a rollover contribution into Plan Destination? Or might there have been a plan-to-plan transfer of assets and obligations? Also, Plan Destination’s administrator and trustee might evaluate whether the attorney had (and perhaps still might have) a charging lien regarding some claim the attorney might have helped perfect. The plan fiduciary should get its advice from a lawyer who is (i) independent of the to-be-paid attorney, and (ii) competent to spot and evaluate the many exclusive-benefit, prohibited-transaction, and other ERISA title I (if it governs either plan) and Internal Revenue Code issues. This is no advice to anyone. I mention it only as a possible variation, in some circumstances, against the general principle that an employee-benefit plan doesn’t pay another plan’s expenses.

Has the examiner suggested the plan’s trustee could not rely on a valuation report because the appraiser was not qualified, or was not independent? Or that the plan’s trustee had not determined the appraiser was qualified and independent?

Listen to Belgarath’s reasoning. Also, consider ERISA § 404(a)(1)(D)’s command to administer a plan according to the plan’s governing documents. If the plan’s documents provide a participant a right to take a distribution after severance from employment, one has a right (legally enforceable under ERISA § 502) to take the distribution the plan provides.

Different minds can reason a few different ways to count a half a year, or to mark a half-birthday. The Treasury department’s rule to interpret Internal Revenue Code § 401(k)’s condition about when a plan with a cash-or-deferred arrangement may provide a distribution from a § 401(k) subaccount does not specify when 59½ occurs. 26 C.F.R. § 1.401(k)-1(d)(1)(ii)(A) https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR6f8c3724b50e44d/section-1.401(k)-1#p-1.401(k)-1(d)(1)(ii)(A). And there is no rule to interpret when 59½ occurs for § 72(t)(2)(A)(i)’s exception that § 72(t)(1)’s extra tax on a too-early distribution does not apply to a distribution “made on or after the date on which the employee attains age 59½[.]” The Treasury’s current (and proposed) § 401(a)(9) rule sets 70½ as “the date six calendar months after the 70th anniversary of the [participant’s] birth.” The rule (current or proposed) illustrates this with two examples: A 70th birthday on June 30 results in 70½ on December 30; a 70th birthday on July 1 results in 70½ on the next year’s January 1. 26 C.F.R. § 1.401(a)(9)-2/Q&A-3 https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR6f8c3724b50e44d/section-1.401(a)(9)-2. That rule’s examples result in a span of 183 or 184 days. But other anniversary dates can result in a span of 182 or 181 days. The § 401(a)(9) rule does not illustrate how to count six months for someone born on the last day of March, the last day of May, the three last days of August, the last day of October, or the last day of December. How one might interpret or apply a half-year concept might differ between § 401(k)(2)(B) and § 401(a)(9)(C). Among several arguable differences: For 70½, that date does not by itself set the required beginning date; rather, it sometimes sets the year that precedes the year that includes the required beginning date. For 59½, that date is the relevant conclusion. About § 401(k)(2)(B), there is a range of interpretations a plan’s administrator might defend. And about the § 72(t)(2)(A)(i) exception, there is a range of interpretations a distributee might assert. In deciding whether a participant gets a distribution because she reached age 59½, an individual-account retirement plan’s administrator might want to know what measurement or assumption its recordkeeper’s software would apply absent the administrator’s instruction. In considering whether a distributee gets an exception from the too-early extra tax because the distributee reached age 59½, a participant might want to know what measurement or assumption the reporter of Form 1099-R would apply. (Although a taxpayer may file a tax return that asserts an income tax treatment different than one suggested by a Form 1099-R report’s coding, some participants consider potential burdens of responding to the IRS’s or another tax agency’s inquiry.) If a participant seeks to be certain of getting 59½ treatment for both purposes that refer to 59½, one might count to the later of (i) 183 days after the 59th birthday, or (ii) the latest date that would result from any possible interpretation of the “six months” in 26 C.F.R. § 1.401(a)(9)-2/Q&A-3 as an analogy for the 59½ half-year. If the participant can’t wait for the money, other interpretations might be possible, depending on the facts and circumstances. Does anyone know how Relius software looks for 59½? Does anyone know how Empower’s software looks for 59½?

The Internal Revenue Manual is a set of directions and instructions addressed to IRS employees. Nothing in the Manual is a rule that applies to a taxpayer. And nothing the Internal Revenue Service or the Treasury department writes can undo an Act of Congress.

The February 2017 memo (later compiled in the Internal Revenue Manual) considered tax law before SECURE 2022, and before SECURE 2019. The whole text of Internal Revenue Code § 401(k)(14)(C) is: “In determining whether a distribution is upon the hardship of an employee, the administrator of the plan may rely on a written certification by the employee that the distribution is— (i) on account of a financial need of a type which is deemed in regulations prescribed by the Secretary to be an immediate and heavy financial need, and (ii) not in excess of the amount required to satisfy such financial need, and that the employee has no alternative means reasonably available to satisfy such financial need. The Secretary may provide by regulations for exceptions to the rule of the preceding sentence in cases where the plan administrator has actual knowledge to the contrary of the employee’s certification, and for procedures for addressing cases of employee misrepresentation.” I.R.C. (26 U.S.C.) § 401(k)(14)(C) http://uscode.house.gov/view.xhtml?req=(title:26%20section:401%20edition:prelim)%20OR%20(granuleid:USC-prelim-title26-section401)&f=treesort&edition=prelim&num=0&jumpTo=true Nothing in that text provides an exception to the allowed reliance until: (1) the Secretary has published a rule or regulation (not subregulatory guidance); (2) that rule “provides . . . exceptions . . . [for] cases where the plan administrator has actual knowledge to the contrary of the employee’s certification[;]” and (3) the rule has become effective and applicable. So far, the Treasury has not even proposed a rule, much less completed a rulemaking. Amended § 401(k)(14)(C) applies to plan years that began or begin after December 29, 2022. Nothing in § 401(k)(14)(C) limits an administrator’s permitted reliance according to whether the participant made one or more previous claims, or received one or more hardship distributions, in a year.

To return to Lou S.’s query, the statute, the Internal Revenue Code of 1986, reads: § 401(k)(2)(B)(i)(III) A qualified cash or deferred arrangement must meet a set of conditions, which include: “(B) . . . amounts held by the trust which are attributable to employer contributions made pursuant to the employee’s election— (i) may not be distributable to participants or other beneficiaries earlier than— (III) in the case of a profit-sharing or stock bonus plan, the attainment of age 59½[.]” Accord 26 C.F.R. § 1.401(k)-1(d)(1)(ii)(A) (“[t]he employee’s attainment of age 59½”). § 72(t)(2)(A)(i) “Except as provided in paragraphs (3) and (4), paragraph (1) [the imposition of an extra tax on a too-early distribution] shall not apply to any of the following distributions: Distributions which are—made on or after the date on which the employee attains age 59½[.]”

The article [https://www.consultrms.com/Resources/38/Hardship-Withdrawals/188/Hardship-Document-Should-You-Allow-Self-Certification] seems to elide a description of the self-substantiation method the Internal Revenue Service unveiled in February 2017’s TEGE Council meeting. Substantiation Guidelines for Safe-Harbor Hardship Distributions from 401(k) Plans.pdf

ERISA § 413, which Paul I points to, governs a fiduciary-breach claim under ERISA’s title I. ERISA does not specify a limitations period for a benefit claim. Federal and States’ courts’ interpretations and applications vary, and sometimes “borrow” a period from a relevant State’s law. Claims under banking, insurance, securities, and other law might involve yet different periods. Instead of assuming the risk of error about which rule or rules might apply and how a court might interpret and apply them, a fiduciary might consider, with its lawyer’s evaluation and other help, negotiating an insurance contract under which one premium covers the tail risks with the insurer underwriting the risk on how long the fiduciary’s exposure continues. Just my musing; not advice to anyone.

I don’t know the tax law about remedial-amendment periods, but many BenefitsLink commenters do. Perhaps they’ll weigh in on my related question: If a plan’s sponsor is adding a provision for Roth deferrals because it’s needed to help meet SECURE 2022’s new tax-qualification condition that § 414(v) deferrals be Roth deferrals, is the provision sufficiently related that it gets a SECURE 2022 remedial-amendment period? If so, does the tax-qualification regime tolerate operate now, amend later? Or does that not work?

For a relevant meaning about what is minimum essential coverage, see Internal Revenue Code (26 U.S.C.): § 4980H http://uscode.house.gov/view.xhtml?req=(title:26%20section:4980H%20edition:prelim)%20OR%20(granuleid:USC-prelim-title26-section4980H)&f=treesort&edition=prelim&num=0&jumpTo=true §5000A(f) http://uscode.house.gov/view.xhtml?req=(title:26%20section:5000A%20edition:prelim)%20OR%20(granuleid:USC-prelim-title26-section5000A)&f=treesort&edition=prelim&num=0&jumpTo=true and rules: 26 C.F.R. § 54.4980H-1(a)(27) https://www.ecfr.gov/current/title-26/chapter-I/subchapter-D/part-54/section-54.4980H-1#p-54.4980H-1(a)(27). The regulator for the § 4980H excise tax on an applicable large employer that does not offer minimum essential coverage is the Treasury department and its Internal Revenue Service.

If DCFSA refers to dependent care flexible spending account: The plan’s provisions relate not only to Federal tax law but also to the employer’s plan-design choices. What does the written plan provide about when a participant may change her election? Does the election the participant seeks to change relate only to a § 129 dependent-care plan? Or does it integrate with a set of choices under a wider § 125 plan, perhaps including a health plan or health flexible spending account? Not all employers’ plans have the same provisions.

Individual-account retirement plans’ fiduciaries differ widely on what oversight and monitoring (if any) is proper or prudent regarding participants’, beneficiaries’, and alternate payees’ directed investment using securities accounts. Further, some plan’s creators specify in one or more governing documents which steps a fiduciary must, may, or must not take. Yet, even when those provisions are clear, fiduciaries sometimes consider whether one must disobey a plan’s provisions as inconsistent, whether generally or in particular circumstances, with ERISA’s title I. In my experience, few fiduciaries consider anything about investment merits, except expenses. Some fiduciaries consider restrictions for points beyond investment merits. Instead of a plan’s fiduciary doing the work of examining accounts for troublesome holdings or transactions, a fiduciary might rely, at least primarily, on the broker-dealer’s representations, warranties, and continuing covenants that the broker-dealer will restrict each securities account’s holdings and transactions to apply the plan administrator’s specified restrictions. Some of the more common exclusions are: open-end funds available as a designated investment alternative; securities issued by the plan’s sponsor, a participating employer, or an affiliate of any (even if one or more of these is not employer securities); securities that were employer securities regarding the plan during a specified past period; securities not traded on at least one nation’s national securities exchange (except securities that were exchange-traded when acquired); securities, commodities, or other property for which the plan’s trustee, custodian, and subcustodians lack enough control of ownership to meet ERISA § 404(b); securities, commodities, or other property for which the broker-dealer does not determine and report fair market value; anything that could result in a loss in excess of the individual’s account balance. Some fiduciaries prefer not to know what a particular individual directs investment in. If an employer does not need visibility to check for the professional-services points I describe above, an employer/administrator might prefer not to have “too much information.”