Retirement Plans Newsletter

September 30, 2016

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[Official Guidance]

Text of IRS Rev. Proc. 2016-51: EPCRS Amendment and Restatement (PDF)
"This revenue procedure updates the comprehensive system of correction programs for sponsors of retirement plans that are intended to satisfy the requirements of Section 401(a), 403(a), 403(b), 408(k), or 408(p) of the Internal Revenue Code, but that have not met these requirements for a period of time.... EPCRS is being modified to take into account the changes in the determination letter program.... The Treasury Department and the IRS invite comments on this revenue procedure." [Procedure for submitting comments appears at page 69.]
Internal Revenue Service [IRS]

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[Official Guidance]

IRS Explanation, Worksheet (Alert Guidelines), and Deficiency Checksheet: Section 436 Limitations (PDF)
15 pages; revised April 2016. This single PDF document includes Publication 5139, Form 14582, and Form 14583. Excerpt: "The worksheet applies only to plans to which Internal Revenue Code section 436 applies, that is, single employer defined benefit plans (including multiple employer plans) that are subject to the minimum funding requirements of section 412. Thus, the worksheet does not apply to governmental plans and nonelecting church plans." [Cycle A Submission Period, 2/1/2016 through 1/31/2017]
Internal Revenue Service [IRS]

[Official Guidance]

IRS Explanation, Worksheet (Alert Guidelines), and Deficiency Checksheet: Section 401(h) and Section 420 Determination of Qualification (PDF)
9 pages; revised April 2016. This single PDF document includes Publication 11433, Form 13069, and Form 13070. Excerpt: "The purpose of Worksheet Number 13 (Form 13069) and this explanation is to identify major problems with respect to the requirements of Internal Revenue Code section 401(h) in plans with retiree medical benefit features and on plan provisions enabling the transfer of assets in a defined benefit plan to a health benefit account described in section 401(h), pursuant to section 420." [Cycle A Submission Period, 2/1/2016 through 1/31/2017]
Internal Revenue Service [IRS]

[Guidance Overview]

The Applicability of the DOL Conflicts of Interest Rule to Financial Advisors (PDF)
"What type of communication is considered a 'recommendation' under the final rule? ... Does the final rule only apply if I give the covered advice to an ERISA plan? ... What are the implications of being considered a fiduciary under the final rule? Why should I care? ... What do I have to do to comply with the Best Interest Contract Exemption?"
Winstead PC, via Practical Compliance & Risk Management for the Securities Industry

California Governor Signs Bill to Create State-Sponsored Retirement Plan for Employees of Non-Governmental Employers
"California Gov. Jerry Brown on [Sept. 29] approved a bill creating state-sponsored retirement plans for some 6.8 million Californians who don't have them through their private employers. The nation's most populous state becomes the eighth state to establish such a program."
The Wall Street Journal; subscription may be required

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RadioShack Joins BP, Whole Foods in Beating Stock Lawsuits
"In dismissing the lawsuit against RadioShack, a Texas-based federal judge found on Sept. 29 that the employees failed to allege -- either by reference to public information or inside corporate knowledge -- that the people running RadioShack's 401(k) plans breached their duties by continuing to offer company stock as an investment.... The RadioShack case has a wrinkle not present in the BP or Whole Foods lawsuits -- namely, that the original allegations against the company were based largely on publicly available information about RadioShack's financial struggles." [In re 2014 RadioShack ERISA Litig., No. 14-959 (N.D. Tex. Sept. 29, 2016]
Bloomberg BNA

Thrivent Financial Challenges DOL Fiduciary Rule
"Thrivent's lawsuit, filed Sept. 29 in the U.S. District Court for the District of Minnesota, takes aim at the rule's 'best interest contract' (BIC) exemption.... The BIC exemption would require Thrivent, a fraternal benefit society based in Minnesota, to cease conducting certain business or to 'abandon its longstanding commitment' to resolving member disputes through alternative dispute resolution methods, the complaint said."
Bloomberg BNA

A Better Way to Measure the Danger of State and Local Governmental Pension Debt
"It's important to think about how cities will cover their unfunded pension liabilities. But when we talk about how pensions affect financial health, the far more important question is how does a region decide to manage its tax base and the overlaps that inevitably exist?"
Governing

Stock Plan Education: Survey Shows Where Employees Need the Most Help
"Most stock plan participants like their equity compensation and say it enhances their commitment to their companies. About 40% of the respondents say that stock comp would be a factor in deciding whether to stay in their current job or take a job with a different company.... [P]articipants need well-rounded general financial education, not just communications about the specifics of their grants."
myStockOptions.com

As You Approach 70, Tips Like These Can Help Trim Your Required Minimum Distributions
"[1] Move some of your IRA funds into a Roth IRA.... [2] Purchase a deferred income annuity known as a [QLAC].... [3] Maximize withdrawals from your IRA prior to age 70-1/2 to the level of peak earnings allowable within your tax bracket.... [4] Consider withdrawing even more money from IRAs for living expenses and leisure pursuits.... [5] Make tax-free donations ... of up to $100,000 directly from your IRA to a charity, sent by your custodian."
MarketWatch

How Much Do You Really Need to Save Each Year to Achieve Your Financial Goals?
"While [the author has previously] focused on helping retirees determine how much they can afford to spend in retirement, these same actuarial principles (including [an] asset/liability matching equation ...) can be applied to the question of: how much a pre-retiree can afford to spend and how much he or she should be saving in order to meet financial goals."
Ken Steiner, FSA Retired

[Opinion]

Whitley v. BP, Stock Drops, and the Outer Limits of Fiduciary Responsibility
"There is an awful long distance -- both literally and metaphorically -- between an offshore drilling rig and the plan fiduciaries sitting in an office somewhere deciding to offer company stock in a retirement plan. To borrow a concept from tort law, there is an almost inconceivable number of breaks in the chain of causation between the decision making of the fiduciaries and a loss stemming from this event.... [It] is really pushing the outer limits of fiduciary responsibility to [connect the dots]." [Whitley v. BP, No. 15-20282 (5th Cir. Sept. 26, 2016)]
Stephen Rosenberg, The Wagner Law Group

[Opinion]

ICI Comment Letter to EBSA on Savings Arrangements Established by State Political Subdivisions for Non-Governmental Employees (PDF)
46 pages. "The Department's safe harbor and interpretive guidance ... have the potential to harm the voluntary system for retirement savings that is working to help millions of American private-sector workers achieve retirement security. We are particularly concerned that with the protections of ERISA for state-administered workplace savings programs, nullify ERISA preemption in the face of precisely the kind of conflicting state laws that necessitated the preemption plans or MEPs) not otherwise available to private-sector employers and retirement plan providers today."
Investment Company Institute [ICI]

Benefits in General

[Official Guidance]

Text of IRS Disaster Relief Notice FL-2016-19 for Victims of Hurricane Hermine in Florida
"Individuals who reside or have a business in Citrus, Dixie, Hernando, Hillsborough, Leon, Levy, Pasco and Pinellas may qualify for tax relief.... [T]he IRS gives affected taxpayers until January 17, 2017 to file most tax returns ... that have either an original or extended due date occurring on or after August 31, 2016 and on or before January 17, 2017.... This relief also includes the filing of Form 5500 series return[.]"
Internal Revenue Service [IRS]

Press Releases

HERO Selects Jody Ensman as Recipient of the Heart Of Hero Award
Health Enhancement Research Organization

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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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