Retirement Plans Newsletter

November 9, 2016

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[Official Guidance]

Revised Draft Instructions for 2016 IRS Form 5500-EZ: Annual Return of One-Participant (Owners and Their Spouses) Retirement Plan (PDF)
Revised Nov. 8, 2016. "The IRS has decided not to require plan sponsors to enter the preparer's information at the bottom of the second page of Form 5500-EZ for the 2016 plan year ... The IRS has decided not to require plan sponsors to complete questions on lines 4a through 4d, 13a, 13b, 14, and 15 for the 2016 plan year and plan sponsors should skip these questions ... The IRS expects that the above questions will not be included in the 2017 Form 5500-EZ."
Internal Revenue Service [IRS]

[Advert.]

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[Guidance Overview]

Market Rate of Return Rule Only Applies to Some PEP Interest -- for Now (PDF)
"IRS has provided much-needed clarity on whether the market rate of return rules described in current regulations apply to PEP plans. Plans that explicitly credit interest each year after principal credits stop are subject to the rules, while plans that instead convert to a benefit at normal retirement age using a deferred annuity factor (thereby implicitly crediting interest) are not.... Sponsors of calendar year plans, including both implicit and explicit PEP plans, are reminded that amendments must be in place by January 1, 2017."
Xerox HR Services

[Guidance Overview]

DOL Issues Guidance on Conflicts of Interest Rule
"Although the FAQs do not reverse or override anything in the Rule or set forth particular revisions, the FAQs do reinforce and clarify the DOL's position on various issues, primarily regarding the BICE and Principal Exemption....[S]atisfaction of any exemption requires careful monitoring of arrangements with retirement investors to ensure compliance with the anti-conflicts of interest requirements."
Skadden, Arps, Slate, Meagher & Flom LLP

[Guidance Overview]

Fiduciary FAQs for Advisers (PDF)
"The first set of FAQs from the DOL on the expanded fiduciary requirements focuses on the duties and responsibilities of investment providers who provide services to plans and participants. Plan sponsors will want to have a tangential understanding of this guidance for awareness of the disclosures and obligations that will soon arrive for their review."
Xerox HR Services

[Guidance Overview]

DOL Final Reg Helps States Move Forward on Retirement Savings Programs for Private Sector Employees
"The final rule: [1] Clarifies that the safe harbor, which allows for automatic enrollment of employees, applies only if employers are required to participate in the state savings program; [2] Indicates that the program may be directed towards 'employers that do not offer some other workplace savings arrangement'; [3] Allows costs to be determined according to a reasonable approximation of a typical employer's costs and to permit employers' costs to be defrayed through tax incentives and credits; and [4] Explicitly recognizes it is a safe harbor ... thus offering states flexibility in designing savings programs for private sector employees."
Segal Consulting

[Advert.]

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Interesting Angles on the DOL's Fiduciary Rule, Part 27: What is 'Compensation'?
"[T]he Best Interest Contract Exemption [BICE] defines third party payments as including 'fees for seminars and educational programs; and any other compensation, consideration or financial benefit.' In other words, the definition of 'compensation' is not limited to cash or similar payments. Instead, it includes any item of monetary value that directly or indirectly, partially or entirely, results from recommendations of investments or insurance or that is payment for advice."
FredReish.com

Fifth Circuit: Conclusory Statements Do Not Satisfy Pleading Standard for Stock Drop Lawsuits
"[T]he Fifth Circuit explained that the district court had incorrectly interpreted the Dudenhoeffer standard when it stated that 'it could not determine, on the basis of the pleadings alone, that no prudent fiduciary would have concluded that [the alternatives] would do more good than harm.'... [T]he Fifth Circuit held that the plaintiffs had failed to meet this burden, because ... 'the stockholders do not specifically allege, for each proposed alternative, that a prudent fiduciary could not have concluded that the alternatives would do more harm than good, nor do they offer facts that would support such an allegation.' " [Whitley v. BP, No. 15-20282 (5th Cir. Sept. 26, 2016, revised Oct. 3, 2016)]
Trucker Huss

Reasons Why Your Boss Will Want to Match Your 401(k) Contributions
"Why your boss should offer a 401(k) match: Attracting and retaining great people.... The tax benefits.... Your competitors are doing it.... [F]our key ingredients to a simple and seamless rollout: Calculate the cost of different match levels.... Determine the match vesting schedule.... Automate company match calculations and contributions.... Show off the 401(k) match to employees."
ForUsAll

[Opinion]

Trump Election Casts Doubt on DOL Conflict of Interest Rule
"Though there is little detail on specific policies by the Trump campaign about many issues including the DOL rule ... the rule could be in jeopardy based on rhetoric from Trump about rolling back on regulations in general. In October, Anthony Scaramucci of Skybridge Capital and recently named adviser to Trump on small business affairs, boldly claimed that the DOL rule would be repealed if Trump was elected calling it a clear case of Federal overreach. Any chance that the SEC would promulgate fiduciary rules under Dodd-Frank seems unlikely now."
401kTV

[Opinion]

Will Pensions Make America Great Again?
"If a Trump administration sets up the right program on infrastructure ... and establishes the right governance, it will be able to attract capital from US public pensions starving for yield as well as that from Canadian and global pensions and sovereign wealth funds ... The big advantage of integrating US and global pensions as part of the solution to rebuilding America's infrastructure is that it will limit the amount the US needs to borrow[.]"
Pension Pulse

Benefits in General

DOL Conflict of Interest/Fiduciary Regulatory Package Survives Court Challenge in DC
"Plan sponsors should be watching for packages from their retirement plan services providers regarding how their services, agreements and fees may change under the way the service provider has structured its compliance programs in response to the Conflict Package and should investigate whether what is proposed is the only approach for your plan. It is particularly important to remember that some of the changes can be implemented via a notification and an opportunity to object and if you do not respond to the notification, you will be deemed to have consented to the changes[.]"
Winstead PC

Questions to Ask Before Signing That New Service Agreement (PDF)
"Employers need to carefully review and negotiate proposed service agreement terms (even if their plans are not covered by ERISA) to ensure that they are balanced, fair and reasonable, comply with ERISA where applicable ... and do not create liabilities, duties and obligations that they, in hindsight, never would have 'bargained for.' [This article describes] just a few of the most common areas that should be scrutinized and negotiated with the help of business and legal advisors."
Boutwell Fay LLP

Why Not Let Employees Vote on Benefits?
"You may already survey employees about their benefits to gauge satisfaction, and part of that may be soliciting ideas for changes and/or additions. But have you thought about actually putting specific decisions about your benefits offering to a vote?"
Benefitfocus

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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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