Retirement Plans Newsletter

July 5, 2016

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Webcasts and Conferences

Operational Impact of Fiduciary Rule Changes
RECORDED
(Roland|Criss Fiduciary Services)

Reverse Churning and How the DOL Addresses the Problem Under the New Fiduciary Rule
RECORDED
(fi360)

CSR Reconciliation Discrepancies Technical Assistance
July 6, 2016 WEBCAST
(Centers for Medicare & Medicaid Services [CMS])

New DOL Fiduciary Rule: Overview and Next Steps
July 13, 2016 WEBCAST
(Practical Law Company)

Eligibility & Forfeitures: Brush-up on the Rules!
July 14, 2016 WEBCAST
(ASC)

Taking the Mystery Out of Retirement Planning – A Focus on Women
July 27, 2016 WEBCAST
(Employee Benefits Security Administration [EBSA], U.S. Department of Labor)

Annual Alston & Bird Health & Welfare Compliance Update: Innovative Health Plan Structures in a Post-ACA World
August 10, 2016 in GA
(ISCEBS - Georgia Chapter)

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[Official Guidance]

Text of IRS Chief Counsel Memorandum 201615013: Testing Otherwise Excludable Employees (PDF)
Dated Jan. 8, 2016. "It is an acceptable application of the statutory and regulatory provisions to treat the population of otherwise excludable employees for purposes of coverage testing under Section 410(b)(4)(B) and performing the ADP test under Section 401(k)(3) as including employees participating in the plan who have not satisfied the Section 410(a)(4) period applicable to them ... We note that there are other readings that may also be acceptable applications of the statutes and regulations." (Internal Revenue Service [IRS])  


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[Guidance Overview]

IRS Provides Helpful Guidance for Cash Balance Plans and 401(k) Plan Testing (PDF)
"[Chief Counsel Memorandum 201617006 provides that], although a cash balance plan with a 'whipsaw' feature would not satisfy the age discrimination safe harbor for lump-sum-based plans, the plan can meet the age discrimination safe harbor rule for plans with indexed benefits.... [In Chief Counsel Memorandum 201615013, the IRS] concluded that it would be permissible to interpret the Code and relevant regulations to treat the population of otherwise excludable employees for purposes of Code Sec. 410(b) coverage testing and ADP testing as including employees participating in the plan who have not satisfied the Code Sec. 410(a)(4) entry date period applicable to them[.]" (Groom Law Group)  

[Guidance Overview]

IRS Issues Clarification on Phased Retirement Payments
"The Notice provides that if certain conditions are met, the payments will not be considered amounts received as an annuity for purposes of Code Section 72. This means that, if the employee made after-tax contributions to the plan or otherwise has a basis in his or her benefit, then a portion of the payment will be treated as basis recovery and will be excluded from income using the calculation rules under Code Section 72(e)(8) described in the Notice." (Benefits Bryan Cave)  

[Guidance Overview]

Long-Awaited Proposed Rules Provide Greater Clarity for Executive Compensation Plans of Exempt Organizations (PDF)
"As anticipated, these rules mirror many of the rules under Code section 409A with respect to severance and substantial risk of forfeiture. In addition, the proposed regulations update the 2003 final regulations under Code section 457 for other statutory changes in the law affecting plans subject to Code section 457." (Groom Law Group, via Bloomberg BNA Pension & Benefits Daily)  

ERISA Class Action Targets Fujitsu's 401(k) Plan Fees
"Fujitsu's failure to monitor the plan administrative fees resulted in millions of dollars charged to participants, according to the complaint, filed June 30 in the U.S. District Court for the Northern District of California. The proposed class also alleges that the plan fiduciaries imprudently designed and implemented the plan's target-date funds feature in violation of [ERISA]. Nichols Kaster PLLP filed the complaint on behalf of eight plan participants. The law firm has recently filed similar complaints against M&T Bank Corp., American Airlines, Inc., and Deutsche Bank Americas Holding Corp." (Bloomberg BNA)  

Participants Sue Yet Another Financial Services Provider
"The most recent suit, brought in the United States District Court for the Western District of Missouri Western Division by a current and former participant of the American Century plan, alleges that 'at all stages, both in selecting the Plan's designated investment alternatives and in monitoring those investments, Defendants only considered investments affiliated with American Century, in furtherance of their own financial interests, rather than the interests of Plan participants.' " [Wildman v. American Century Servs., LLC, No. 4:16-cv-00737 (W.D. Mo. filed June 30, 2016)] (National Association of Plan Advisors [NAPA])  

Quarterly Fiduciary Checklist (PDF)
"This checklist sets an agenda for quarterly retirement committee meetings and helps document plan topics that should be addressed at least annually. Each quarter's focus subject is intended to be a primary topic discussion for the committee, though other matters will also be discussed." (Lockton)  

Five Questions for Plan Sponsors to Ask Themselves About the New Fiduciary Rule
"[1] Do we know all the third parties acting in a fiduciary capacity to our plan or plan participants under the new rules, and what conflicts do these third parties have? ... [2] What are these third parties' compliance policies and procedures that will ensure these conflicts do not influence the advice they are providing to our plan or participants? ... [3] What is our perspective on investment advice (as now defined) for our participants? ... [4] What is our benefit philosophy regarding terminated participants? ... [5] Should we update our plan design to align with our philosophy on terminated participants?" (CAPTRUST Financial Advisors)  

Use a Rainy Day Fund to Manage Investment Risk in Retirement
"[E]ither budgets or actual spending can be smoothed when investment returns are volatile. One approach ... is to set-up and use a 'Rainy Day Fund' (RDF).... [I]nvestment gains (investment returns in excess of those expected based on the investment return assumption) are transferred to the RDF while investment losses (to the extent they are covered by the RDF) are transferred back to the fund used to determine the budget when needed. The RDF assets are ignored for budget determination purposes and are intended to be used during periods of poor investment performance, or to be used for other expenses when and if the RDF becomes too large." (Ken Steiner, FSA Retired)  

California Pensions Take Above-Average Tax Bite
"California pension funds take a bigger share of tax revenue than the national state average ... In rough terms, the public pension share of California tax revenue in fiscal 2013 was 8 percent by fiscal 2013 compared to a national average of 6 percent." (Calpensions)  

Poland Dismantles Private Funds in Pension Revamp
"In Poland's biggest pension overhaul since 1999, the assets of the 139 billion zloty ($34.5 billion) industry will probably be transferred to individual retirement accounts, with at least a quarter of the holdings to be managed by a state entity ... The plan also assumes pension savings will get a boost from incentives offered to Poles to opt for long-term investment." (Pensions & Investments)  

FTSE350 Pension Deficits Rocket to a Record 119 Billion GBP in Wake of Brexit
"At 30 June 2016, asset values were £694 billion (representing a rise of £31 billion compared to the corresponding figure of £663 billion at 31 May 2016), and liability values were £813 billion, representing an increase of £52 billion compared to the corresponding figure of £761 billion at the end of May." (Mercer)  

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David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
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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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