Retirement Plans Newsletter

July 13, 2016

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Kravitz, Inc.
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Ascensus
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Webcasts and Conferences

Fiduciary Focus – Collective Investment Trusts Capturing Assets and Attention
July 26, 2016 WEBCAST
(fi360)

Ethical Issues for 403(b) Advisors
July 26, 2016 WEBCAST
(National Tax-Deferred Savings Association [NTSA])

401(k) Plan Excessive Fee Lawsuits - Reducing Your Risk
August 4, 2016 WEBCAST
(Globe Business Media Group)

Employee Plans Determination Letter Program Changes In 2017
August 11, 2016 WEBCAST
(IRS [Internal Revenue Service])

ERISA Basics National Institute
October 26, 2016 in IL
(ABA Joint Committee on Employee Benefits [JCEB])

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[Official Guidance]

IRS Announces New Process for DB Plan Determination Letter Applications
"Applicants requesting determination letters for their defined benefit (DB) plans should identify whether the plan has lump sum risk transfer language in either the cover letter to their application or an attachment. For plans that do, also identify the appropriate plan section and whether the plan satisfies one of the conditions in Notice 2015-49. For DB plan applications we've already received, we'll request the plan sponsor to inform us of this information.... Plans with risk transfer language that don't meet one of the conditions in Notice 2015-49 won't receive a determination letter unless the risk transfer language is removed." (Internal Revenue Service [IRS])  


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Sponsored by International Foundation of Employee Benefit Plans [IFEBP]

Take the first step by enrolling in the Certified Employee Benefit Specialist® (CEBS®) program. Gain the knowledge you need to successfully lead your business through today's challenges. Learn more about the CEBS program and register.



[Guidance Overview]

IRS Updates Draft Form 5300
"Form 5300 has undergone major revisions in format and information required. Many of the revisions reflect the changes affecting individually designed plans described in Announcement 2015-19, and Revenue Procedure 2016-37 including: [1] Eliminating 5-year remedial amendment cycles; [and] [2] Generally, limiting DL requests to initial plan qualification and qualification on plan termination, effective January 1, 2017. The revised form significantly simplifies the information plan sponsors must provide and is expected to reduce the taxpayer burden in filling out the form." (Internal Revenue Service [IRS])  

[Guidance Overview]

DOL Publishes Technical Corrections to Best Interest Contract and Principal Transaction Exemptions (PDF)
"These clarifications helpfully resolve unintended discontinuities between the text of the exemptions and DOL's drafting intent as expressed in the preamble or elsewhere, and conform a detail in the definition of insurance companies that may serve as BICE Financial Institutions to applicable state insurance law. Certain clerical corrections were also made. The revised text of each PTE is reproduced in full in the respective release." (Sutherland Asbill & Brennan LLP)  

[Guidance Overview]

Highlights of the Proposed Regs Under Section 457(f)
"[T]he new regulations will apply to any pre-existing plans and arrangements that did not have the amounts deferred thereunder previously reported as taxable income. This could cause employees under pre-existing plans or arrangements to be subject to tax as of the effective date of the new regulations." (Squire Patton Boggs)  

[Guidance Overview]

Proposed Regs Create (Some) Executive Comp Design Opportunities for Tax-Exempt Employers
"Tax-exempt employers should also consider the design opportunities presented by the new proposed regulations. In particular, in appropriate cases, tax-exempt employers may find it useful to reconsider the application of rolling vesting or noncompete provisions in the case of deferred compensation arrangements for certain key executives where the facts and circumstances requirements support the application of those features." (Verrill Dana LLP)  


[Advert.]

Chicago Advanced Pension Conference - Sept. 7-9

Sponsored by FIS Relius Education

Our ERISA experts will discuss the final fiduciary regs, prohibited transactions, mid-year Safe Harbor amendments, church plans reforms, forfeitures, multiple employer plans, Washington update, and more. 19 CE hours. Early fee ends 8/1. Register now.



The Myth of the 15-Minute 401(k) Plan Setup
"The simple truth is that any 401k provider -- regardless of their technology -- has the potential to deliver a super-fast 401k plan. All they need is a 401k fiduciary willing to sign on the dotted line for a cookie-cutter (decision-less) 401k plan without any questions.... The consequences of a poorly-designed or misunderstood 401k plan are great. Making poor 401k administration and investment choices can unnecessarily reduce a plan sponsor's bottom line while not understanding the fiduciary responsibilities of 401k choices can increase the personal liability of plan fiduciaries." (Employee Fiduciary)  

DOL Fires Back at Fiduciary Rule Critics
"In July 8 court filings, the department disputed the accusation that it botched the rulemaking process, saying that it 'acted well within its authority' and 'provided a reasoned explanation for its decision.' The department contended that its new interpretation of 'investment advice' -- which industry groups blasted as overbroad and contrary to law -- was entitled to deference and should be respected by the federal courts." (Bloomberg BNA)  

Berkshire Hathaway Can't Dodge ERISA Lawsuit Over Acme's Pension Plan
"The appeals court found that the companies' merger agreement imposed an unlimited restriction on Berkshire that prevent it from causing Acme to reduce certain benefits. The case stems from the 2000 acquisition of Justin Industries Inc. -- then Acme's parent company -- by Berkshire. As part of the merger agreement, Berkshire agreed to not cause Acme to reduce employees' benefits under the company's pension and 401(k) plans." [Hunter v. Berkshire Hathaway, Inc., No. 15-10854 (5th Cir. July 11, 2016)] (Bloomberg BNA)  

How to Take Advantage of a 'Child IRA' Under Current Laws
"The world offers precious few jobs that require only existence, but that newborn baby will have to find them and convince someone to hire him in order to earn the necessary income to start a Child IRA. What kinds of jobs require one to merely sit there and do nothing? Pretty much only one: modeling.... Parents who own businesses and actively advertise represent a special situation. In this situation, maintaining a steady stream of child modeling work may demand less rigor." (Fiduciary News)  

Proposed Changes to Social Security for Public Employees: SSA Actuary Estimates Financial Effects (PDF)
"[This letter provides an] estimate of the financial effects on the Social Security Trust Funds of the amendment in the nature of a substitute ... for H.R. 711, the 'Equal Treatment of Public Servants Act of 2015' ... This amendment would generally replace the windfall elimination provision (WEP) with a new formula that you have referred to as the 'Public Servant Fairness Formula' (PSF). The proposal would also provide for a rebate payment starting in 2018 for individuals affected by the current WEP." (Office of the Chief Actuary, U.S. Social Security Administration [SSA])  

[Opinion]

How I'm Fixing Your 401(k)
"When you dig into the details and the relationships that outside vendors have with legacy 401(k) providers, it's clear that the industry has lost focus on the goal, which is to give employees the opportunity to save as much as possible for retirement. You start to notice all of the hands in the cookie jar: TPAs, fiduciaries, recordkeepers, fund managers, broker/dealers, sponsors, custodians, RIAs, and on and on.... When I was thinking about my goal, providing a successful retirement for my employees, I simply could not justify that fee situation when trying to account for value in each of those services in a retirement account." (Guideline)  

Benefits in General

Some Initial Thoughts on the Proposed Form 5500 Revisions
"[1] The 5500 overhaul will NOT be effective anytime soon ... [2] Voluntary plan participation rates will be much easier to determine on the new 5500 ... [3] Expect a lot more reporting of fees ... [4] There will be more data present on the 5500 itself rather than in attachments ... [5] Some smaller plan sponsors will need to file more 5500s ... [6] Strangely, the Summary Annual Report (SAR) will remain the same." (Cammack Retirement Group)  

Executive Compensation and Nonqualified Plans

[Guidance Overview]

IRS Issues New Proposed Regs under Code Section 409A
"The proposed regulations provide more guidance (and restrictions) on when employer will be deemed to have a 'pattern or practice' of permitting impermissible changes in the time and form of payment. If there is such a pattern or practice, the employer may not use the correction rule." (Michael Best & Friedrich LLP)  

[Guidance Overview]

IRS Clarifies and Modifies Code Section 409A Guidance
"[T]he IRS also provided helpful guidance regarding the correction of certain non-compliant deferred compensation arrangements. Specifically, to the extent an amount of deferred compensation is not vested (and will not become vested during the current year), an employer or other service recipient may amend a noncompliant term or provision in the written deferred compensation document in a manner permitted under IRS correction guidance that would otherwise apply to vested amounts, even though the noncompliant term or provision may not have been eligible for correction under that guidance." (Bond, Schoeneck & King)  

[Guidance Overview]

Section 409A: IRS Issues Proposed Regs to Address Open Questions
"The 409A Proposed Regs make it clear that a delay of payment beyond the applicable 2-1/2 month period would also be justified if payment would violate federal securities laws or other applicable law, provided the payment is made as soon as reasonably practicable following the first day on which the employee anticipates or reasonably should anticipate that making the payment would not cause a violation.... [The regulations also] clarify that the separation pay plan exception is available for employees whose employment begins and ends in the same taxable year. In that situation the rules look at the annualized compensation from the taxable year in which the employee separates from service." (Davis Wright Tremaine LLP)  

[Guidance Overview]

New 409A Regs, Part 2: On Taking (and Giving) Stock
"Sometimes in a transaction, employees with stock awards are given rights to get paid on the same terms as shareholders. For awards subject to 409A, the rules generally permit this as long as the payments do not go beyond five years from the date of the change in control. However, since options and SARs with fair market value strike prices are exempt from 409A, there was some question as to whether this rule could be used with those awards. These proposed regulations confirm that it can.... [U]nder Section 338 of the Code, parties can elect to treat a stock sale as a deemed asset sale for tax purposes. Does this include 409A, which would then allow them to choose whether a separation from service has occurred? The proposed regulations say it does not. Therefore, employees will not have a separation from service, even if a 338 election is made." (Benefits Bryan Cave)  

Press Releases

IRI Announces New Vice Presidents
Insured Retirement Institute [IRI]

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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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