Retirement Plans Newsletter

April 14, 2016

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DB Administrator/Enrolled Actuary
Midwest Pension Actuaries, Inc.
in MI

Manager, Operations
Newport Group
in AL

Benefits Attorney
Compensation & Benefit Solutions
in CO, TX

ERISA Attorney
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in IN

Defined Benefit Plan Administrator
Nyhart
in CA

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Webcasts and Conferences

AIR Working Group: General ACA Information Returns Discussion
April 26, 2016 WEBCAST
(IRS [Internal Revenue Service])

Choosing a Retirement Solution for Your Small Business Workshop
April 27, 2016 in KS
(Employee Benefits Security Administration [EBSA], U.S. Department of Labor)

COBRA Workshop
May 19, 2016 WEBCAST
(Employee Benefits Security Administration [EBSA], U.S. Department of Labor)

Necessary Plan Language in Light of Recent Guidance from the Supreme Court and Lower Courts
May 26, 2016 WEBCAST
(ABA Joint Committee on Employee Benefits [JCEB])

401(k) Plan Workshop - Minneapolis
June 9, 2016 in MN
(FIS Relius Education)

Form 5500 Workshop - Minneapolis
June 10, 2016 in MN
(FIS Relius Education)

ASPPA Boston Regional Conference
July 14, 2016 in MA
(ASPPA [American Society of Pension Professionals & Actuaries])

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[Official Guidance]

Text of IRS Announcement 2016-16: Withdrawal of Proposed Nondiscrimination Rules Applicable to Certain Qualified Retirement Plan Benefit Formulas (PDF)
"The provisions of the Proposed Regulations that would modify Sections 1.401(a)(4)-2(c) and 1.401(a)(4)-3(c) were intended to address certain qualified retirement plan designs that take advantage of flexibility in the existing nondiscrimination rules to provide a special benefit formula for selected employees without extending that formula to a classification of employees that is reasonable and established under objective business criteria.... [T]he Treasury Department and the IRS will withdraw the provisions of the Proposed Regulations that would modify Sections 1.401(a)(4)-2(c) and 1.401(a)(4)-3(c)." (Internal Revenue Service [IRS])  


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[Official Guidance]

Text of PBGC Interest Rate Update for May 2016
"The May 2016 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 April 2016, these interest assumptions are unchanged." (Pension Benefit Guaranty Corporation [PBGC])  

[Guidance Overview]

The DOL's Final Rule Redefining Fiduciary (PDF)
35 pages. "The breadth of the definition itself will make virtually anyone speaking with a plan participant or an [IRA] owner into a fiduciary unless an exception is met. Rollover recommendations are now defined as fiduciary advice, as is advice on the type of account (brokerage versus advisory) and lists of securities that might meet a plan or IRA client's needs... [It] will be nearly impossible for retail brokers, insurance agents and consultants to avoid fiduciary status when dealing with plans or IRAs." (Steptoe & Johnson LLP)  

Edison International Wins Dismissal of Ninth Circuit Lawsuit Over 401(k) Plan
"The Supreme Court decision, which revived the Edison case and sent it back to the 9th Circuit, will likely make it easier for 401(k) plan participants to sue their employers for choosing investments that impose excessive fees, especially when those decisions were made years before lawsuits are filed. But the 9th Circuit on Wednesday said that before reaching the Supreme Court, Edison employees argued merely that changes to their plan triggered a duty to monitor, and not that the obligation was ongoing, so they could not make that claim now." [Tibble v. Edison Int'l., No. 10-56406 (9th Cir. Apr. 13, 2016)] (The Fiscal Times)  

IRS Cautions Employers on Short Service Plan Designs
"Retirement plans that limit the benefits that are available to non-highly compensated employees to those who work few hours or for little pay may violate the tax code's nondiscrimination rules ... One example, [the IRS said,] are plans that limit NHCE benefits to a specific job classification. 'The result, for discrimination and coverage purposes, is the same because this classification includes only the lowest paid or shortest service group of NHCEs' ... Yet other plan designs might pass general vesting or numeric tests under the nondiscrimination rules but would not prevent discrimination in favor of HCEs, the IRS said." (Bloomberg BNA)  


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Pension Plan Withdrawal Liability Imposed on Investor Private Equity Funds
"[P]rivate equity funds may want to ... [1] avoid multiple co-investments with the same fund entities, [2] limit the investment administration and managerial rights granted to the fund entities, [3] avoid substantively identical governing documents for co-investing funds, [4] have the funds co-invest with different outside entities and [5] seek outside funds with independent ownership and management to become minority owners in a portfolio company.... Most significantly, private equity funds will want to be especially aware of any unfunded pension liability that a potential portfolio company may have." [Sun Capital Partners III, LP, et al. v. New England Teamsters & Trucking Industry Pension Fund, No. 10-10921 (D. Mass. Mar. 28, 2016)] (Holland & Knight)  

Sun Capital: An Opportunity to Consider Fund Tax Structures (PDF)
"The court chose to look beyond the 'organizational formalities' employed by the funds and to assert that ... state law forms cannot be elevated over substance when it comes to analyses under ERISA.... The Sun Capital court's 'common control' analysis is interesting in that it amounts to what is essentially a conclusion under the tax law regarding a de facto partnership; yet, the case is not a tax case, the [IRS] is not a party and there is no reason to believe the IRS has ever or will ever assert a partnership-in-fact under these facts." (King & Spalding)  

NYC Pension Weighs Liquidating $1.5 Billion Hedge Fund Portfolio
"New York City's pension fund for civil employees is weighing exiting its $1.5 billion portfolio of hedge fund investments because of lagging performance, high fees and the riskiness of the asset class.... Hedge funds make up 3 percent of the civil employees' fund's $51 billion portfolio." (Bloomberg)  

Group: Define 'Best Interest' Before a Judge Does
"The Center for Financial Responsibility at Texas Tech has formed the Best Interest Initiative to define what the term really means.... Early readings of the rule are in agreement that the best interest proviso does not mean always steering clients to the lowest-cost option. Beyond that, advisors and industry analysts are unclear on what exactly it does mean. Risk tolerance is one area, for example, that can be part of the equation, analysts say. But how would it be weighted? Is there a formula to be developed? Texas Tech hopes to answer these questions[.]" (InsuranceNewsNet.com)  

[Opinion]

Takeaways from a Securities Law Veteran's Reading of All 1,000+ Pages of the DOL Rule
"The brokerage industry got exactly what it wanted from the new DOL rule: A sufficiently new take on the old problem of getting advisors to put clients first but nebulous enough that reasonable doubt is none-too-difficult to take hold in arbiters' minds.... The new rule contains reassuring -- for RIAs -- new words like 'fiduciary' and 'best interest.' But what [the author] could not find in the sea of words that make up the new rule were words that could help a tort attorney." (RIABiz)  

[Opinion]

Five Ways the Administration's Fiduciary Rule Could Undercut Americans' Saving for Retirement
"The tax code delegates to the Department of Treasury sole enforcement authority over IRAs, recognizing that private lawsuits are inefficient, inexpensive, and often do not have the best interests of the clients in mind. The final fiduciary rule, however, allows for -- even encourages -- IRA rules to be enforced through class action lawsuits. Not only does this change exceed the Administration's regulatory authority in this area ... it also is expected to create needless and expensive litigation, scare off potential retirement advisors, and make it harder and more expensive for Americans to obtain retirement advice." (Committee on Ways and Means, U.S. House of Representatives)  

Benefits in General

[Guidance Overview]

What Is a 'Gig'? Benefits for Unexpected Employees (PDF)
17 pages. "It is unclear to what degree, if any, the DOL Wage and Hour Division's more aggressive position ... on who constitutes an employee, and court decisions concerning who is an employee for purposes of the FLSA, NLRA, or state labor codes, will affect determinations of who is an employee for purposes of retirement plans, health insurance, or other employee benefit programs.... If a gig worker is an independent contractor, rather than an employee, his or her options for accessing retirement, health insurance, and the other benefits of the type employees sometimes enjoy would seem to be the set of options available to self-employed persons." (Utz & Lattan, LLC)  

Second Circuit: No Civil Penalties for Claims Regulation Violations
"[T]he Second Circuit held that a plan's failure to comply with the DOL claims regulations in denying a benefit claim generally results in the claim being reviewed under the less deferential de novo standard in federal court.... The Second Circuit also held that a claimant is not entitled to civil penalties under ERISA for a plan's failure to comply with the claims regulations.... [The Court] noted that: Neither ERISA nor its implementing regulations authorize penalties for violations of the DOL claims regulations. The Supreme Court has been especially reluctant to recognize non-statutory remedies in the ERISA context." [Halo v. Yale Health Plan, No. 14-4055 (2d Cir. Apr. 12, 2016)] (Practical Law Company)  

Executive Compensation and Nonqualified Plans

[Guidance Overview]

FASB Issues Update for Stock-Based Compensation Accounting (PDF)
"[T]wo changes will be most beneficial to plan administration: [1] Tax withholding in shares will now be permitted up to the maximum applicable statutory tax rate (previously, withholding shares above the minimum statutory tax rate threatened liability accounting for equity awards); and [2] With respect to forfeitures, companies will be permitted to elect to either (a) account for forfeitures as they occur, or (b) estimate forfeitures and account for the equity awards that are expected to vest (which previously was the only option)." (ExeQuity)  

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BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2016 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of that content. You may not alter or remove any trademark, copyright or other notice from copies of the content.

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