408(b)(2) Disclosure and 404(a)(5) disclosure

[JOH]

Really quick, is a 408(b)(2) and 404(a)(5) disclosure required for Cash Balance and Defined Benefit plans?

[Bri]

Yes on 408b2 (service provider contract with sponsor), no on 404a5 (individual expenses against a participant's balance)

[Peter Gulia]

Omitting a 404a-5 disclosure presumes that a defined-benefit plan does not provide participant-directed investment.

[JOH]

Great, thank you both

[Tom]

Can someone confirm the 408b2 is required initially for plans providing TPA compensation and then only if there is a change in that compensation (not annually?)

[Bri]

True, 408b2 is not typically an annual disclosure.

[Peter Gulia]

Although the 408b-2 rule allows a standing disclosure until there is a change, some service providers make one's own business decision to furnish a yearly disclosure even when nothing changes.

[JOH]

Piggybacking on this, 408b-2 notice is not required if the plan only has a single participant, right?

[Peter Gulia]

Whether ERISA's title I requires a 408b-2 disclosure turns on whether ERISA governs the plan.

That a plan has only one participant doesn't by itself determine whether the plan is ERISA-governed. If the one participant is an employee rather than an owner, a one-participant plan might be ERISA-governed.

Also, even a plan that is not ERISA-governed might need a 408b-2 disclosure if the plan is among those covered by Internal Revenue Code section 4975.