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Form 5500 Delinquency Can Be Costly
"Article highlights: [1] [DOL] has established a new maximum penalty for failure to file; [2] Maximum monetary fine for Form 5500 filing violations is now $2,063 per day; [3] Penalties stemming from delinquent 5500 filings are to be treated on a cumulative basis." (EBCG)
[Guidance Overview] Changes to Puerto Rico's Tax Code and Trust Act Could Impact HCEs
"The Act sets the threshold for HCEs to $150,000 (currently $120,000 in the U.S., and previously the threshold under P.R. law). This HCE threshold is fixed, while the U.S. threshold is subject to cost-of-living adjustments.... Limits on per-participant contributions to defined contribution plans are currently the same under both the P.R. and U.S. tax codes: the lesser of 100% of compensation or $54,000. The Act limits contributions to the lesser of 25% of 'net income' or $75,000." (Willis Towers Watson)
[Discussion] IRS Auditor Wants Docs Faxed to Avoid 'Disclosure'
"We have what should be an easy audit for a tiny plan, but the auditor works from her home and insists on everything being faxed for security. She says the IRS says that using Sharefile or something similar is 'disclosure.' Maybe I'm being stubborn but we're not faxing 80-100 pages from a fax machine, and I'm not inclined to spend even $1 on some program that will convert efiles to faxes." (BenefitsLink Message Boards)
Text of Sixth Circuit Opinion Upholding Denial of Lump Sum Benefits for Retiree Who Died Prior to Lump Sum Election Period (PDF)
10 pages. "Given that no power of attorney exists after death and Mr. Strang did not submit the form, Ford is correct to note that Mr. Strang did not comply with the terms of the plan. Such an interpretation is not arbitrary or capricious.... It is true that the facts here present a tragic case of the sometimes difficult nature of hard-line rules, but there is nothing in the plan that prevents Ford from keeping its structured plan intact so that it could provide an orderly system for the many other retirees that may have wished to elect their own lump-sum option." [Strange v. Ford Motor Co., No. 16-2090 (6th Cir. May 19, 2017)] (U.S. Court of Appeals for the Sixth Circuit)
Reimbursement of Plan Sponsor Expenses
"[S]ome regular plan sponsors do bill their plans for the services the sponsor provides to them. And that practice -- while permitted under certain circumstances -- does present certain issues under ERISA. In this article we briefly review the rules under which a sponsor/fiduciary may be reimbursed for expenses, some of the pitfalls those rules present, and some recent litigation on the issue." (October Three Consulting)
Communicating Your ESOP
"Here are three practical ideas to make more of your annual statements: [1] Include ownership information and a 'how to read the statement' handout with your mailing.... [2] Hold a webinar to review the annual statement and ESOP results.... [3] Hold live meetings to build ESOP and business knowledge." (Blue Ridge ESOP Associates)
[Discussion] Plan Operational Errors Found, 5500 Now Overdue Because Auditor Won't Issue Clean Report
"A client has a 403(b) plan that is now a large plan requiring an audit. The auditor uncovered several operational errors and a lack of adequate procedures to make sure the plan is compliant.... The 5500 is now overdue because the auditor will not issue a report. So a new late filing error has occurred and the penalty amount will continue to increase.... Is an auditor able to issue a qualified opinion in these circumstances -- stating the types of errors that were found and indicating that the sponsor is working with counsel to make appropriate corrections?" (BenefitsLink Message Boards)
[Discussion] Counting Service for Vesting Purposes After an Acquisition
"Company A acquires 100% of the stock of Company B. Each company maintains its own 401(k) plan. After the acquisition, Employee X is transferred from Company B to Company A, so X begins to participate in Company A's plan and stops participating in Company B's plan. Must Company A's plan provide credit for X's service with Company B, for vesting purposes? If not, would it make a difference if Company B's plan later is merged into Company A's plan?" (BenefitsLink Message Boards)
[Guidance Overview] Controlled Group and Affiliated Service Group Rules for Retirement and Cafeteria Plans (PDF)
"[A] foreign-based corporation (or group of individuals) may have wholly owned subsidiaries in other countries that in turn have wholly owned subsidiaries in the U.S., which are in fact part of a controlled group. Most often, these U.S. controlled groups do not have centralized operations and are not even aware that there are other related entities in the U.S.... Less familiar to many service-type companies are the rules treating affiliated (through ownership) service organizations as a single employer for retirement and cafeteria plan purposes. The ownership thresholds triggering application of these rules are much lower for this type of group than for controlled groups." (EisnerAmper)
[Discussion] Synthetic GIC Reporting
"Does ASC 820 apply to synthetic GICs? These should be presented at contract value and no longer get the FV disclosures, correct? Are Synthetic GICs fully benefit responsive?" (BenefitsLink Message Boards)
[Discussion] Do Rules on Truth-In-Lending Notices Apply to 401(k) Loans?
"Is the federal Truth-In-Lending information required to be in loan documents for a 401(k) plan's loan to a participant?" (BenefitsLink Message Boards)
How 401(k) Advisers Can Create Effective Financial Wellness Programs
"[T]he U.S. spent more than $670 million on financial education programs in 2013. The hope is that by teaching Americans the importance of savings -- and how to save -- Americans will in fact save. Unfortunately, this is not true.... [P]articipants' confidence in their understanding of the fund played more of a role in their investment decisions than the actual risk profile of the fund." (InvestmentNews)
Military-Member Employees Sue FedEx Over Alleged USERRA Violations
"According to the lawsuit, because thousands of service members employed by FedEx regularly work hours and receive compensation that are not fixed, their compensation has been 'not reasonably certain.' ... The lawsuit claims that since 2002 FedEx and the pension plan defendants have applied a policy for making pension and retirement contributions for periods of qualified military service that did not comply with USERRA, because they did not apply the 12-month look-back formula that USERRA requires." (planadviser)
[Discussion] Cash-outs Under $200: Withholding Required?
"We have always operated with the understanding that plan may simply pay out terminated participants with less than $200, of course with nothing withheld. Does anyone have a reference we can cite authorizing the plan to do this? We have plan trying to clear out old dead wood and several people have balances well below the $200." (BenefitsLink Message Boards)
[Guidance Overview] Recent Legislation Impacts Puerto Rico Tax-Qualified Retirement Plans
"[S]ome of the main changes adopted by the Act include ... New maximum on contributions ... New definition of Highly Compensated Employee (HCE) ... New safe harbor for Cash or Deferred Arrangement (CODA) Plans ... Although the Act was effective immediately and, technically speaking, requires Puerto Rico qualified plans to adopt amendments incorporating its provisions ... PR Treasury officials informally instructed [practitioners] ... to wait before adopting and implementing the Act until PR Treasury examines the scope of the new qualification requirements and issues guidance regarding their implementation." (McConnell Valdes)
Two Recent Cases Illustrate Costs of Ignoring Process in Benefits Administration
"In neither case was it likely that problems arose due to a lack of knowledge of the specific rules that should have been followed; what may have been lacking is a good understanding of why it's important to follow those rules.... [E]stablishing, following, and monitoring a compliant process matters. And if the rules seem unworkable, see if you can re-work them and find a way to comply. The cost of noncompliance can be steep." (Stinson Leonard Street)
It May Be Time to Start Thinking About Equitable Claims Again
"A recent decision by the Eighth Circuit Court of Appeals ... provides another signal that those of us defending against benefit claims increasingly may have to contend with simultaneous equitable claims for breach of fiduciary duty. Though the law is developing in this area ... and likely will vary from circuit to circuit, you can expect more plaintiffs to add an equitable claim to a benefits complaint, and you can expect at least some courts to allow those claims to go forward. What strategies will prove most effective in responding to this latest tactic?" (Robinson & Cole LLP)
[Discussion] Vesting of Rehired Participant's Account After Change in Vesting Schedule
"Participant was hired when the plan had immediate vesting. He leaves for 20 years and then is rehired, but now the plan's formula is the common 2-to-6 year graded vesting schedule. His account in the plan was never distributed, so we know that his current account is vested. But must future accruals be fully vested when made, for this participant?" (BenefitsLink Message Boards)
The Fifth Circuit Calls Into Question Its Standard of Review in ERISA Denial of Benefits Cases
"The Plan ... did not provide deference to the decisions of Plan Administrator. However ... the Court applied the abuse of discretion standard to examine the plan administrator's factual determinations.... [T]he Court noted that it is the only circuit that would apply deference to factual determinations made by a plan administrator when the plan does not vest them with that discretion, and also pointed to the growing number of state laws prohibiting discretionary clauses in insurance contracts." [Ariana M. v. Humana Health Plan of Texas, Inc., No. 16-20174 (5th Cir. Apr. 21, 2017)] (National Law Review)
[Discussion] VCP for Missed PPA Restatement: Choosing Effective Date for PPA Provisions
"When should the document be effective? My document has a box for PPA restatement, and I recall that this box invokes all of the regulatory effective dates. Should I restate effective 1/1/17?" (BenefitsLink Message Boards)
[Discussion] Divorce Agreement Says All DRO Rights Are Waived; Plan Is Uncomfortable
"Profit Sharing Plan has husband and wife as participants -- soon to be ex-husband and ex-wife. Both have agreed (in the divorce agreement not yet signed) not to request a Domestic Relations Order with respect to the other's account balance. The husband has requested distribution of his account but the plan needs assurance that a Domestic Relations Order will never be presented. Is their agreement enough? What form should it take?" (BenefitsLink Message Boards)
[Discussion] 'Small Amount' Exception to Right of Distribution in Form of Stock from an ESOP?
"ESOP plan document of a C-corp provides for automatic distributions under $1,000 and automatic rollovers between $1,000 and $5,000. Is anyone aware of any 'small amount' exception to the rule that ESOP participants are entitled to receive distributions in the form of stock, with respect to their company stock account? It appears that the company is making automatic rollovers of amounts under $5,000 in cash, and automatic distributions of amounts under $1,000 in cash." (BenefitsLink Message Boards)
[Discussion] EPCRS Safe Harbor for 'Employee Elective Deferral Failures' -- Applies to Catch-Up Contributions?
"The safe harbor correction method provides that if an error lasted less than 3 months and proper/timely notification is given to the employee, the employer doesn't need to correct the missed elective deferrals. I'm comfortable that this would extend to a failure to implement a pre-tax or Roth contribution election, but I'm wondering if this treatment extends to catch-up contributions, too." (BenefitsLink Message Boards)
[Discussion] Retroactive Amendment to Allow an Already-Made In-Service Distribution
"In-service distributions are not allowed under the current provisions of the plan. The document can be amended to allow in-service at normal retirement age now, but this does not help the fact that a distribution occurred that was not permitted under the terms of the AA. Can we do a retro-active amendment to correct this operational failure? If so, does it need to be submitted under EPCRS?" (BenefitsLink Message Boards)
Ransomware: The Smart Person's Guide
"Because of the ease of deploying ransomware, criminal organizations are increasingly relying on such attacks to generate profits.... While home users have traditionally been the targets, healthcare and the public sector have been targeted with increasing frequency. Enterprises are more likely to have deep pockets from which to extract a ransom.... How do I protect myself from a ransomware attack?" (TechRepublic)
[Discussion] Excluding Seasonal Employees
"What if I have a group of employees who are being excluded solely because they work during the summer months exclusively without regard to how many hours a week they work. I know they can be excluded; the question is, does the document (and operations) need to make them eligible if they hit 1,000 hours in 12 months (i.e. if they meet max eligibility under section 410(a)?" (BenefitsLink Message Boards)
[Discussion] Safe Harbor Contribution After Date of Plan Termination?
"Employer is terminating its 401(k) plan effective on June 30 (next month), so there will be no employee contributions after that date. Can a safe harbor contribution for 2016 be made by September 15 of this year, even though it's after the termination date? Would this jeopardize the plan's termination?" (BenefitsLink Message Boards)
The Power of Defined Contribution Plan 'Wellness' (PDF)
"This paper explores the relationship between plan wellness and retirement readiness and provides a framework for sponsors and their advisors to evaluate their plan wellness with a focus on balancing participant outcomes and cost efficiency." (Prudential)
[Guidance Overview] Credit Quality Declines Won't Trigger PBGC Review (PDF)
"[T]he PBGC removed two items that were listed in its guidance in December as possible triggers for the agency's attention under the program: a significant drop in a sponsor's credit rating and a downward trend of a sponsor's cash flow or other financial factors." (Keightley & Ashner LLP, via Bloomberg Law Pension & Benefits Daily)
[Discussion] Former Employer Says DB Plan Was Frozen Many Years Ago But Didn't Tell Us
"My former employer just sent me a letter saying the pension plan in which I participated has been terminated, with a description of my benefit that's much smaller than I expected. I called the plan's actuary, who says my employer had frozen the pension formula nine years ago while I was still working there, but neither I nor any of the several employees I've spoken to remembers being informed of the plan being frozen. Anything we can do?" (BenefitsLink Message Boards)
Listen to Your Participants: Don't White Label 401(k) Investment Funds
"The process of white labeling obscures the identity of the fund(s) being used.... [It] leads to participant confusion and lack of trust.... Hiding the identity of funds and fund companies would seem to be a stumbling block to achieving better participant understanding.... It hides complex investment strategies ... It obscures fund changes ... It's hard to obtain objective information ... It hides the impact of superstar managers[.]" (Lawton Retirement Plan Consultants)
Why Wait to Retire to Take Control of Your 401(k)?
"If you're 59-1/2 years old and still working, you have the ability to roll over money from your 401(k) into an IRA.... There are four reasons why you should consider an in-service rollover: [1] You are in control of your money.... [2] An IRA gives you more investment options to choose from.... [3] There are more safe havens for your money in an IRA.... [4] You can automatically set up your account as a multigenerational IRA (or 'stretch IRA')." (Chad Slagle, via Kiplinger)
[Official Guidance] PBGC Monthly Interest Rate Statement for May 2017
Listed and described are rates that change each month (ERISA 4022 Lump Sum Interest Rates and Variable-Rate Premiums) and rates that change each calendar quarter (ERISA 4044 Annuities, Late Premium Payments and Late Withdrawal Liability). (Pension Benefit Guaranty Corporation [PBGC])
Most Plan Participants Who Roll Over DC Assets into IRA Seek Advice
"8 in 10 [DC] plan participants who roll their assets into an [IRA] speak to someone before performing the transaction.... DC plan participants roll over more than $400 billion annually.... The top reasons plan participants gave for rolling over their DC assets into an IRA are: [1] To gain more control over their assets; [2] Access better investment options to achieve better returns; and [3] To consolidate their portfolio." (LIMRA Secured Retirement Institute)
[Discussion] Can Owner-Trustee Cause Plan to Purchase Stock from His Brother?
"John Doe and his spouse own 100% of Corporation A. No employees. The corporation sponsors Plan A. John and his spouse own 40% of Corporation B. There is no other attributed ownership in corporation B, which sponsors Plan B. There is no CG/ASG. John's brother owns most of the other (60%) stock in Corporation B. Can Plan A purchase some of the Corporation B stock currently owned by John's brother, without causing a prohibited transaction?" (BenefitsLink Message Boards)
[Discussion] When Does a DB Plan Participant Accrue a Full Year for Section 415 Purposes?
"The owner of a business sponsoring a defined benefit plan is the only participant. 2017 will be his tenth year of participation (at least 1,000 hours). We want to terminate the plan as soon as he reaches his full section 415 limit during 2017 so that he can roll over a lump sum and avoid the need to start a 2018 plan year. Can 2017 be counted as a full 'year 10' before Dec. 31, 2017? (BenefitsLink Message Boards)
[Discussion] Partial Plan Termination?
"Mr. B will form new corporation B. Some of the employees of corporation A will come over to work for him -- or of course they can quit. He'll just establish a new plan.... I don't think there's any solid argument that these terminations from corporation A are 'voluntary' so it seems to me that if they weren't already 100% vested, they would need to be. Any other opinions?" (BenefitsLink Message Boards)
Lawyer's Role in Challenged ESOP Transaction May Have Caused Him to be an ERISA Fiduciary
"Evolve Bank & Trust was hired as an independent transaction trustee when the Plan purchased stock from Vinoskey at an allegedly significantly inflated price.... [It] appears that [attorney Michael New] was not acting in his capacity as an attorney or as counsel for Evolve or Sentry, but rather only as an employee employed as a fiduciary. Therefore, it is likely that New's status as attorney was not the critical factor; had a non-attorney filled New's role for Evolve and taken the same action, the court likely would have still found him to be a fiduciary." [Hugler v. Vinoskey, No. 16-0062 (W.D. Va. May 2, 2017] (Robinson & Cole LLP)
Canadian Court Rejects Multiemployer Plan's ERISA Controlled-Group Liability Claims (PDF)
"The court held that ERISA cannot be applied to hold Canadian entities liable for multiemployer withdrawal liability simply because those entities are owned by a common parent.... The decision marks one of the few instances to date that a court has analyzed ERISA's reach across the U.S. border, and may make it more difficult for multiemployer plans and the PBGC to seek payment from foreign entities of liabilities associated with underfunded multiemployer and single employer plans." [Walter Energy Canada Holdings, Inc. (Re), 2017 BCSC 709, May 1, 2017] (Groom Law Group)
Retirement Plan Riddles and Stumpers
"The tax law says you need a year-end valuation of all your IRAs. Do you include annuity contracts in that valuation or not? ... When is the same distribution both required and not required? ... You are married. You want to withdraw some money from your workplace retirement plan. Do you need your spouse's consent to do that?" (Morningstar Advisor)
Your Retirement Plan: Set It, But Don't Forget It
"When it comes to planning for retirement, there are three commonly automated arrangements that warrant a one-off, stop-and-think review from time to time: beneficiary designations, plan participation and investment allocation." (Certified Financial Planner [CFP] Board of Standards, Inc.)
Fedex May Have Violated USERRA 12-Month Look-Back Pension Contribution Calculation Rule
"Because a FedEx employee's hours varied from week to week and he often worked overtime, USERRA required FedEx to use a 12-month look-back rule to determine the proper pension contribution for his periods of military service. Finding a triable question on whether FedEx's calculation was inconsistent with USERRA's terms -- it estimated the hours he would have worked during his leave, rather than the hours he actually worked in the prior 12 months -- the [Sixth] Circuit reversed summary judgment on his pension benefits claim." [Savage v. Federal Express Corp. dba FedEx Express, No. 16-5244 (6th Cir. May 10, 2017)] (Wolters Kluwer)
Words Matter: A Lesson in Pension Plan Interpretation
"A recent federal appeals court decision involving famed brewer Anheuser-Busch's pension plan and the trigger for extra benefits is a perfect example of how a few words can make all the difference in the world.... Simply put, the appeals court said the plain language of the Anheuser-Busch pension plan was clear: plan participants were entitled to enriched pension benefits when their employment with the controlled group ended within three years after a change of control.... [That the] employees held onto their jobs after the deals, was irrelevant. What mattered was that the employees no longer worked for their former controlled group." [Knowlton v. Anheuser-Busch Companies Pension Plan, Nos. 15-3538, 15-3851 (8th Cir. Feb. 22, 2017)] (Conduent)
[Official Guidance] Text of PBGC Interest Rate Update for Benefits Payable in Terminated Single-Employer Plans, June 2017
"The June 2017 interest assumptions under the benefit payments regulation will be 1.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for May 2017, these interest assumptions are unchanged." (Pension Benefit Guaranty Corporation [PBGC])
[Guidance Overview] Action Required Before Year-End: Disability Plans Claims and Appeals Procedures
"The newly issued final regulations took effect on January 18, 2017 and will apply to all disability benefits claims filed on or after January 1, 2018.... [Employers should] work with their disability plan insurance carriers, third party administrators, and attorneys to ensure that all underlying disability plans and associated documentation (including any ERISA wrap plans, Code section 125 cafeteria plans, and claims denial forms) are reviewed and updated to ensure legal compliance with the requirements for claims filings beginning January 1, 2018. The final regulations are lengthy, comprehensive, and require detailed review and analysis." (Fraser Trebilcock)
[Guidance Overview] PBGC Walks Back Early Warning Program Expansion (PDF)
"[On] May 10, 2017, PBGC updated the guidance on its website regarding the Early Warning Program. PBGC removed credit deterioration and a downward trend in a company's financial metrics as risk identification factors ... However, PBGC made clear that, in analyzing a transaction under the Early Warning Program, PBGC generally considers a company's credit quality in its analysis.... PBGC clarified that the December guidance was not meant to expand the Early Warning Program and that PBGC has not 'changed the monitoring criteria or the processes involved' in the program." (Groom Law Group)
Enforceability of Arbitration Agreements with Class Action Waivers Becoming Hot Topic in ERISA Litigation
"Recent Supreme Court decisions permitting class action waivers in arbitration agreements opened the door to the question of whether such an agreement would be enforceable under [ERISA].... The wave of class action litigation over 401(k) and 403(b) fees has created a forum for addressing this question, and courts are beginning to provide an answer." (Greensfelder)
[Guidance Overview] Mid-Year Changes to Your Safe Harbor Plan
"Examples of permissible mid-year changes, given they meet the notice requirement, include: [1] Changes to the plan's default investment fund. [2] Changes to the plan's rules for dispute arbitration. [3] Increase in future safe harbor non-elective contributions from 3% to 4% for all employees. [4] Mid-year changes as required by law." (Butterfield Schechter LLP)
Fourth Circuit Agrees: Fiduciaries' Faulty Process for Eliminating Stock Funds Did Not Cause Plan's Losses
"This case demonstrates that the 'would have' standard for showing that a plan fiduciary's breach did not cause a loss is difficult, but not impossible, to satisfy.... Process is also crucial when adopting plan amendments, a point highlighted by the dissent, which ... faults the trial court for its handling of the fiduciaries' failure to properly adopt an amendment to eliminate the stock funds. The court majority overlooks that obstacle ... but there seems little doubt that proper adoption of the amendment requiring divestment would have helped the fiduciaries' case." [Tatum v. RJR Pension Inv. Comm., No. 16-1293 (4th Cir. Apr. 28, 2017)] (Thomson Reuters / EBIA)
[Official Guidance] Text of IRS Notice 2017-31: Weighted Average Interest Rates, Yield Curves, and Segment Rates Applicable for May 2017 (PDF)
"This notice provides guidance on the corporate bond monthly yield curve, the corresponding spot segment rates used under Section 417(e)(3), and the 24-month average segment rates under Section 430(h)(2) ... In addition, this notice provides guidance as to the interest rate on 30-year Treasury securities under Section 417(e)(3)(A)(ii)(II) as in effect for plan years beginning before 2008 and the 30-year Treasury weighted average rate under Section 431(c)(6)(E)(ii)(I)." (Internal Revenue Service [IRS])
Eighth Circuit Jimmies the Lid on Pandora's Fiduciary Duty Box
"In an opinion that may result in increasingly complex ERISA benefits litigation, the Eighth Circuit has allowed a breach of fiduciary duty claim premised on alleged faulty claims handling practices to proceed in conjunction with a claim for benefits.... Given how out of step Jones is with longstanding practice, it is likely that Aetna will seek en banc review, or even file a petition of certiorari with the Supreme Court. Nevertheless, while this case continues to work its way through the courts, it is likely that plaintiffs will rely on Jones in justifying pairing routine claims for benefits with claims for equitable relief." [Jones v. Aetna Life Ins. Co., No. 16-1714 (8th Cir. May 8, 2017)] (Seyfarth Shaw LLP)
[Guidance Overview] PBGC Q&As on Rules for Risk Mitigation and Early Warning Program
9 Questions & Answers, updated May 2017. "Did PBGC's December 2016 updated content signify an expansion of the Early Warning Program to include credit deterioration? No. PBGC has not expanded the program or changed the monitoring criteria or the processes involved.... The monitoring criteria reference a participant count of 5,000 or more or an underfunding threshold of $50 million or more. Does PBGC apply these thresholds on a plan-by-plan basis or on an aggregate controlled group basis? PBGC applies the participant count and underfunding monitoring criteria on an aggregate controlled group basis.... Does PBGC use information provided in filings made under section 4010 of ERISA to open an Early Warning Program review? No." (Pension Benefit Guaranty Corporation [PBGC])
Financial Well-Being as a Technology Solution (PDF)
"If employees are expected to plan their own retirement, they need help that goes beyond just retirement planning.... The right technology can help get employees focused back on work, while aiding those who want to retire when the time is right. This article explores how technology can play a role in financial wellness and answers questions on potential impact, software evaluation and adoption." (Society of Actuaries)
Canadian Court Dismisses ERISA 'Controlled Group' Claim
"The decision holds that an ERISA controlled group claim fails because the claim raises a question of corporate personality -- namely, whether corporate separateness may be disregarded to impose a plan sponsor's liability on its affiliates -- and that the law of the place of incorporation, rather than US law, applies to such questions. Because the laws of the places of incorporation, British Columbia and Alberta, do not include ERISA, and because ERISA's controlled group provisions were the sole basis for liability, the claim fails. The decision creates an important guide to the limits of controlled group liability in Canada, and potentially in other jurisdictions guided by the decision." [Walter Energy Canada Holdings, Inc. (Re), 2017 BCSC 709, May 1, 2017] (Latham & Watkins)
Connecticut Senate to Consider Narrower 403(b) Disclosure Bill
"[T]he amended bill ... [requires] that 'any company that administers' a 403(b) plan offered by a political subdivision (and not administered by the state itself) must disclose in writing, upon enrollment, and annually thereafter: the fee ratio and return, net of fees, for each investment under the retirement plan; and the fees paid to any person who, for compensation, engages in the business of providing investment advice to participants in the retirement plan either directly or through publications or writings." (National Tax-Deferred Savings Association [NTSA])
[Guidance Overview] IRS Technical Advice Memo Considers Limit on Annual Additions When Two Employer-Aggregation Rules Apply
"The controlled group and affiliated service group rules were created to prevent avoidance of the Code's nondiscrimination rules by setting up multiple corporations or partnerships providing benefits to the same employee. As [TAM 201715001] illustrates, sometimes both rules are needed to achieve that goal, so both must be met -- 'separately and in their entirety.' " (Thomson Reuters / EBIA)
Protecting Your Qualified Retirement Plan Now That the IRS Determination Program Is (Mostly) Closed
"[A] more practical solution is to continue the discipline forced by the old determination program and use that discipline for systematic reviews of ongoing compliance. This does not mean constant full-scale review, but rather setting up a system to ensure that key elements of the plan document and administration will be reviewed periodically[.]" (Proskauer's ERISA Practice Center)
Fifth Circuit Maintains Default Deferential Standard of Review in Denial of Benefit Claims, But Suggests It May Soon Be Overruled
"Commenting that '[t]he pillars supporting Pierre may have thus eroded', the Fifth Circuit's concurrence suggests that the tides may be changing, and that Firestone's requirement for discretionary language may soon apply equally to questions of plan interpretation and fact in the Fifth Circuit." [Ariana M. v. Humana Health Plan of Texas Inc., No. 16-20174 (5th Cir. Apr. 21, 2017)] (Robinson & Cole LLP)

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