katieinny Posted February 19, 2003 Posted February 19, 2003 Our client has a 403(B) Plan subject to ERISA. The document and investments are provided by one of the Big Providers. The plan permits loans. The Big Provider has asked the Employer to sign a loan contract that's between the Big Provider and the Employer. I don't understand why there needs to be a contract between the Big Provider and the Employer. In all our 401(k) plans there is a loan policy and supporting documents that are between the Employer and the Participant. There's no contract between the Employer and the brokerage firm that provides the document and the investments. Is this common for 403(B) Plans and why is it necessary?
mbozek Posted February 20, 2003 Posted February 20, 2003 Stupid queston: Have you read the loan document? What are the terms of the loan??? Who is the borrower and who is the lender? What are the loan proceeds applied toward? What happens if the employer refuses to sign the loan agreement? mjb
katieinny Posted February 20, 2003 Author Posted February 20, 2003 Yes, I've read the loan contract. The vocabulary is not familiar. When an annuitant applies for a loan, a loan "certificate is issued in consideration of a premium remitted" from the original certificate. To me, that says if a participant requests a $5,000 loan, a new account is established and money is transferred from the participant's account to a loan account. A loan is made to the annuitant with the issuance of the loan certificate. "Periodically, the portion of Accumulation under this Certificate that exceeds 110% of the Outstanding Loan Balance will be transferred to the" original certificate -- until the loan is finally repaid. I understand that the Provider is responsible to setting up the loan certificates, receiving payments and transferring funds back to the original certificate, etc., but why does this call for a contract between between the Provider and the Employer? Doesn't a bank or investment firm do the same thing for a 401(k) plan? I've never seen a contract in those situations.
katieinny Posted February 20, 2003 Author Posted February 20, 2003 I just talked to a representative from the Provider. She says that the participant does everything through them and the employer doesn't get involved at all, and might never know about the loan. She also said that the original value of the certificate never changes. The Provider loans the money to the annuitant. Sounds like a prohibited transaction doesn't it? When I pointed out the language in the contract, she was puzzled and needs to check it out.
mbozek Posted February 20, 2003 Posted February 20, 2003 Q: are the contributions invested in mutual funds or annuities? In annuities the loan is between the insurer and the participant. The loan is available as a provision of the annuity contract. Mutual funds cannot make loans to thei investors. In a mutual fund the custodian (a trust co) makes the loan to the participant and secures it with the account as collateral. The loan is not a PT because a 403b plan has no assets and the participant owns the interest in the annuity or custodial account used a collateral. The PT rules do not apply to a 403(B) plan. mjb
katieinny Posted February 20, 2003 Author Posted February 20, 2003 I guess it's starting to make sense. A 403(B) plan is not set up as a trust, which makes a difference. If the prohibited transaction rules don't apply, then the Provider can make the loan directly to the annuitant, and the employer stays out of the whole thing. So is the contract the Provider's way of getting authorization to do these transactions with the annuitants because the employer set up the plan and the investments are with the Provider? Since the participants are referred to as annuitants, I'm thinking the assets are invested in annuities.
mbozek Posted February 20, 2003 Posted February 20, 2003 If the benefits are funded through a group annuity contract the loan provision for participants should be in the contract. It may be that the providers lawyers want the side agreement because of some fear that a loan is a plan feature that must be approved by the plan fids. Why dont you ask the provider's rep for the reason for this requirement. mjb
katieinny Posted February 20, 2003 Author Posted February 20, 2003 Yes, I asked the Provider's rep why the contract is necessary. That's one of the things she's checking into. Given her uncertainty and my own, I want to get as much information as I can from those who know about these things before I talk with her again.
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