ASPPA code of conduct

[Bird]

The ASPPA code of conduct reads in part as below.  Let's say someone hasn't paid for the 2018 val, am I obligated to provide it?  If not, am I obligated to provide, say, the 2017 val (which was sent to the client already)...the plan document (also sent to the client already)?  I asked the question about "work product" once and was told that is notes and calcs and stuff that are just in our files.

"B. When a Principal has given consent for a new or additional professional to consult with a Member with respect to a matter for which the Member is providing or has provided Professional Services, the Member shall cooperate in assembling and transmitting pertinent data and documents, subject to receiving reasonable compensation for the work required to do so.  In accordance with Circular 230, the Member shall promptly, at the request of the Principal, return any and all records of the Principal that are necessary for the Principal to comply with federal tax Law, even if the Member is not subject to Circular 230. The existence of a fee dispute generally does not relieve the Member of this responsibility except to the extent permitted by applicable state Law.   The Member need not provide any items of a proprietary nature or work product for which the Member has not been compensated."

[RatherBeGolfing]

5 minutes ago, Bird said:

The ASPPA code of conduct reads in part as below.  Let's say someone hasn't paid for the 2018 val, am I obligated to provide it?  If not, am I obligated to provide, say, the 2017 val (which was sent to the client already)...the plan document (also sent to the client already)?  I asked the question about "work product" once and was told that is notes and calcs and stuff that are just in our files.

 

B. When a Principal has given consent for a new or additional professional to consult with a Member with respect to a matter for which the Member is providing or has provided Professional Services, the Member shall cooperate in assembling and transmitting pertinent data and documents, subject to receiving reasonable compensation for the work required to do so.  In accordance with Circular 230, the Member shall promptly, at the request of the Principal, return any and all records of the Principal that are necessary for the Principal to comply with federal tax Law, even if the Member is not subject to Circular 230. The existence of a fee dispute generally does not relieve the Member of this responsibility except to the extent permitted by applicable state Law.   The Member need not provide any items of a proprietary nature or work product for which the Member has not been compensated.

2018 Valuation - You do not have to provide the product of your work for which you have not been compensated.  You do have to return client files and information that the client or a third party provided provided to you.  Basically, you don't have to hand over the 2018 valuation or your calculations/testing, but you do have to hand over the underlying data you collected from the client or third parties in order to do the 2018 valuation/testing like W-2s, K-1s, financials etc.

2017 Valuation & Plan Document - if the client paid for it, you need to provide it, even if it has already been sent to the client in prior years.  You are allowed to charge a reasonable fee for collecting and sending the data though.  Nowadays that might be as easy as attaching a couple of PDFs to an email....

[Larry Starr]

On 10/14/2019 at 12:56 PM, Bird said:

The ASPPA code of conduct reads in part as below.  Let's say someone hasn't paid for the 2018 val, am I obligated to provide it?  If not, am I obligated to provide, say, the 2017 val (which was sent to the client already)...the plan document (also sent to the client already)?  I asked the question about "work product" once and was told that is notes and calcs and stuff that are just in our files.

 

B. When a Principal has given consent for a new or additional professional to consult with a Member with respect to a matter for which the Member is providing or has provided Professional Services, the Member shall cooperate in assembling and transmitting pertinent data and documents, subject to receiving reasonable compensation for the work required to do so.  In accordance with Circular 230, the Member shall promptly, at the request of the Principal, return any and all records of the Principal that are necessary for the Principal to comply with federal tax Law, even if the Member is not subject to Circular 230. The existence of a fee dispute generally does not relieve the Member of this responsibility except to the extent permitted by applicable state Law.   The Member need not provide any items of a proprietary nature or work product for which the Member has not been compensated.

I have a slightly different take than RatherBeGolfing (anyone surprised?).  FWIW, I was also involved in drafting the original Code of Conduct many years ago.

Question: Do you have to provide the 2018 valuation? NO.  It's that simple.  You haven't been paid, so they don't own that work. Just FYI, in our shop we get paid FIRST before we do the val, so we just don't have that particular problem.

Question: Do you have to provide another copy of the 2017 val? NO.  You previously provided them what they paid for; they owe you for work you have done but they have not paid for.  You owe them nothing until they pay what they owe you, at which point you can provide them copies of prior work and you can charge them for that (get paid in advance, obviously).

Now, here's what I strongly disagree with.  RBG said: "Basically, you don't have to hand over the 2018 valuation or your calculations/testing, but you do have to hand over the underlying data you collected from the client or third parties in order to do the 2018 valuation/testing like W-2s, K-1s, financials etc." 

I disagree with the highlighted part of that sentence. The data we collect from clients is filled out on our forms or is provided as COPIES of original source documents (like W-2s).  It is OUR information; none of it is the client's. We don't accept original documents (if we get them, like a prior plan doc, we copy and return the original at that time). Copies of financial statements that come directly to us are OURS, not the client's.  Copies they make and send to us are ours, not the client's. Basically, none of that data rises to the level of "... any and all records of the Principal that are necessary for the Principal to comply with federal tax Law".

We are happy to provide copies of data, reports, etc from our files to a client who, for example, is leaving us. BUT, when they inform us they are leaving, we send them a letter (our "sign off" letter) and remind them that they have been given EVERYTHING that the new service provider needs to take over the client, but if they want things from our files, we have a fee that applies (and gets paid in advance), and we don't make it inconsequential (but it's also not outrageous - at least, I don't think so and I get to decide! ? ).

Hope you find that helpful.

[RatherBeGolfing]

On 10/14/2019 at 6:01 PM, Larry Starr said:

The data we collect from clients is filled out on our forms or is provided as COPIES of original source documents (like W-2s).  It is OUR information; none of it is the client's. We don't accept original documents (if we get them, like a prior plan doc, we copy and return the original at that time). Copies of financial statements that come directly to us are OURS, not the client's.  Copies they make and send to us are ours, not the client's. Basically, none of that data rises to the level of "... any and all records of the Principal that are necessary for the Principal to comply with federal tax Law".

100% agree with data collected on your forms.  Your forms, your product. 

Non-original documents provided by the client is a gray area for me, but you are correct that since it is a copy it could be assumed that they have the original so it probably does not rise to the level of "any and all records of the Principal that are necessary for the Principal to comply with federal tax Law".

What about this part of the code of conduct:

Quote

8. Courtesy and Cooperation

A Member shall perform Professional Services with courtesy and shall cooperate with others in the Principal’s interest.

That is where client provided documents (even copies) becomes a gray area for me.  I'll return them, for a reasonable fee. 

[Bird]

Thanks.  Yes, we do get paid in advance 99% of the time but every once in a while I get soft.  Of course those are the clients that take the most time.

[Larry Starr]

18 hours ago, RatherBeGolfing said:

100% agree with data collected on your forms.  Your forms, your product. 

Non-original documents provided by the client is a gray area for me, but you are correct that since it is a copy it could be assumed that they have the original so it probably does not rise to the level of "any and all records of the Principal that are necessary for the Principal to comply with federal tax Law".

What about this part of the code of conduct:

That is where client provided documents (even copies) becomes a gray area for me.  I'll return them, for a reasonable fee. 

I would suggest that your cooperation is "as soon as we are paid our outstanding fees for work already done, we will be happy to get you whatever we can get you so long as the client also pays the fee for that process (and in advance)".  That's cooperation.  Occasionally, I have to explain to a client that they do have to pay the outstanding fees to another entity because they  have already done the work and we need their cooperation and we can't get that if fees are outstanding.  It has (so far) always worked. 

[AdKu]

Is there a regulation that requires the recordkeeper to follow the client/employer instruction to liquidate and supply all the necessary information to another service provider when there are unpaid invoices, including the most recent plan year end work and data conversion work?

[Larry Starr]

15 minutes ago, AdKu said:

Is there a regulation that requires the recordkeeper to follow the client/employer instruction to liquidate and supply all the necessary information to another service provider when there are unpaid invoices, including the most recent plan year end work and data conversion work?

Liquidate assets? Yes, if the entity you are talking about is the custodian of the assets.  I never am. But it's not a regulation, it's as a result of being a custodian and having to follow all those fiduciary rules (which are not necessarily even ERISA rules).

Otherwise, there is no regulation requiring that the service provider provide anything/do anything if they haven't been paid.

[justanotheradmin]

23 minutes ago, AdKu said:

Is there a regulation that requires the recordkeeper to follow the client/employer instruction to liquidate and supply all the necessary information to another service provider when there are unpaid invoices, including the most recent plan year end work and data conversion work?

I'm not aware of a regulation. I think that comes down to a contractual issue. Can a custodian hold the plan assets hostage when there are unpaid invoices and trustee direction to move the assets? Probably No. 

Can a custodian / recordkeeper say in their contract that if there are unpaid invoices, and a liquidation / asset transfer request is received, they will first pull the fee amounts before completing the asset transfer? Yes. I have see recordkeepers do this, and it is so specified in their contracts and fee disclosures ahead of time. 

[AdKu]

Thank you for your insight.

Aside from unpaid prior year-end works invoices, the client/employer is asking to do additional work including liquidating the asset and providing all the paper work related to the liquidation.

Can the recordkeeper decline to do this additional work without getting paid or at least the client/employer agreed in the contract they will pay?

Or is this considered holding the plan assets hostage that can backfire on the recordkeeper?

[Bird]

1 hour ago, AdKu said:

Aside from unpaid prior year-end works invoices, the client/employer is asking to do additional work including liquidating the asset and providing all the paper work related to the liquidation.

Can the recordkeeper decline to do this additional work without getting paid or at least the client/employer agreed in the contract they will pay?

My experience with recordkeepers is that they can take fees from assets if unpaid.  (That doesn't answer your Q...)

[Larry Starr]

8 hours ago, AdKu said:

Thank you for your insight.

Aside from unpaid prior year-end works invoices, the client/employer is asking to do additional work including liquidating the asset and providing all the paper work related to the liquidation.

Can the recordkeeper decline to do this additional work without getting paid or at least the client/employer agreed in the contract they will pay?

Or is this considered holding the plan assets hostage that can backfire on the recordkeeper?

 

If there's a fee and the employer doesn't pay it directly, the recordkeeper will take it out of the plan funds; I guarantee you their contract gives them that right. They CAN'T not do the work or the liquidation and the plan will never be held hostage, they will just take their fee out of the assets if they have to.