Retirement Plans Newsletter

October 3, 2017

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Jobs

Senior Plan Administrator
Established Regional TPA
in GA

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Independent Retirement
in OR

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Pentegra
in NY

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Heartland Financial USA
in CA, IA, IL, KS, MN, NM, WI

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Webcasts, Conferences

Assessing Retirement Plan Compliance in a Post-Determination Letter World
RECORDED
Eversheds Sutherland

Employee Benefits Limiting Risks and Exposure
RECORDED
Dorsey & Whitney LLP

Inside the Beltway
October 12, 2017 WEBCAST
Drinker Biddle & Reath LLP

Cybersecurity in the Retirement Plan World
October 18, 2017 in VA
Central Virginia Employee Benefits Council

403(b) Prototype Document
October 31, 2017 in TX
FIS Relius Education

IRA Distributions
November 28, 2017 WEBCAST
Ascensus

►See 156 Upcoming Webcasts and Conferences

►See 1299 Recorded Webcasts


Discussions

New Topics on the BenefitsLink Message Boards

New Comments and Topics

All Topics, Grouped by Forum


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[Guidance Overview]

The DOL Fiduciary Rule: Charting a Course, Avoiding Collisions and Potential Litigation, Part 3
"What is the potential that either the 'financial institution' or the insurer, as well as the insurance agent/broker will face potential class action claims of a state law fiduciary breach during this 'temporary' period of the Rule, and what is such a claim's likelihood of success? ... What steps should financial institutions or insurers take to help prevent such class action claims from succeeding? ... What are the requirements for protecting against becoming a fiduciary under state law, as well as for adhering to the 'best interest' standard under the Rule in conjunction with a transaction which involves either advice that a plan participant make a distribution from an existing ERISA plan into an IRA, or a recommendation to move from one IRA to another?"
Carlton Fields

[Advert.]

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Supreme Court Declines to Hear ABB-Tussey Investment Mapping Case
"In the latest incarnation of litigation that started in 2006, the Supreme Court denied a petition to review a request by ABB based on a ruling by the 8th Circuit Court of Appeals in St. Louis on March 9, 2017.... The appeals court said the district judge had mistakenly ruled for ABB regarding potential damages to participants when the ABB plans mapped one investment option to another and how revenue sharing is administered in defined contribution plans."
Pensions & Investments

IBM Beats ERISA Lawsuit Over Company Stock in 401(k), Again
"The retirement plan committee of International Business Machines Corp. and its executives again defeated a lawsuit accusing them of failing to mitigate a 'foreseeable drop' in the company's stock and protect participants from losing millions of dollars in retirement savings. The participants offered three alternative actions IBM and the executives could've taken to mitigate the risks to the plan, but this wasn't enough to support a fiduciary breach claim, [the judge held]." [Jander v. Ret. Plans Comm. of IBM, No. 15-3781 (S.D.N.Y. Sept. 29, 2017)]
Bloomberg BNA

Johns Hopkins Employees Advance Retirement Plan Fee Suit
"A federal judge Sept. 28 refused to dismiss key portions of the lawsuit, including claims that the school violated [ERISA] by offering actively managed funds in its retirement plan and using multiple record-keepers. However, the judge dismissed claims that Johns Hopkins imprudently offered higher-cost share classes when cheaper classes of the same funds were available. The judge also dismissed the novel claim that the school violated ERISA by offering too many investment options in its retirement plan." [Kelly v. The Johns Hopkins Univ., No. 16-2835 (D. Md. Sept. 28, 2017]
Bloomberg BNA

Cornell, MIT Lose Rounds in Retirement Plan Litigation
"A federal judge Sept. 29 refused to dismiss key portions of the lawsuit against Cornell, including claims that the school was wrong to use multiple record keepers and to offer high-fee actively managed funds and certain underperforming investment options. However, the judge dismissed charges that Cornell shouldn't have offered so many investment options and shouldn't have agreed to a 'lock-in' relationship with one of its record keepers, TIAA. On the same day, a different federal judge kept a similar lawsuit against MIT alive, refusing to dismiss claims that MIT acted imprudently by charging excessive record-keeping fees and failing to choose the least expensive share classes for some of the plan's investment options."
Bloomberg BNA

[Advert.]

SPARK Forum - November 5-7, 2017 -- The Breakers, Palm Beach, FL

Sponsored by SPARK

Join us at the retirement services industry's leading event for top marketing, sales, administration and record keeping professionals. Comprehensive agenda to meet the needs of 401(k) Plan Providers, Financial Advisors and Third Party Administrators.


Attributes of a Retirement-Ready 401(k)
"[1] Auto-enrollment ... [2] Auto-escalation ... [3] Auto re-enrollment ... [4] Tighter rules surrounding participant loans ... [5] Roth 401k availability ... [6] Stretched employer match ... [7] Integration of 401k plan and financial wellness education ... [8] Lowest possible cost investment options ... [9] Participant investment advice ... [10] Availability of target date funds."
Lawton Retirement Plan Consultants

Leaving Pension Management, and Pension Risk, Behind
"More than 4 in 10 survey respondents (43%) said that if they conducted a liability transfer transaction, they would begin with a partial transfer of their pension liabilities and then follow with the purchase of additional annuities over time. Complete transfers can be challenging; most corporate pension plans today are not fully funded.... Fewer than 1 in 5 survey respondents (18%) said their organizations would likely borrow or issue debt to more fully fund their plan prior to a risk transfer."
CFO

The Reality of the Multiemployer Pension Reform Act
"MPRA was intended to provide multiemployer plan trustees with the difficult, but necessary tools required to restore their troubled plans to solvency, and protect retirees from the even larger benefit reductions that the retirees will see when their plans go insolvent and subject to the PBGC guarantee ... [Of] the three MPRA application approvals to date, all had previously applied to the Treasury and then withdrew ... Each plan then resubmitted their application and went through the process again.... [In] order to reapply, an organization must pay for revised actuary projections, and inform participants again that their benefits are going to be cut."
PLANSPONSOR

An 'Exception' That Can Delay RMDs from 401(k)s
"The still-working exception does not apply to IRAs. It also doesn't apply to employer plans if an employee isn't currently working for that company.... The IRS has no official position on what exactly constitutes staying on the job. Presumably, an individual could work one hour a year and still be considered employed for this exception to the RMD rules to work.... If the worker owns more than 5% of the company the year he or she turns 70-1/2, he or she will never be able to use the still-working exception.... [F]amily aggregation rules apply in determining the percentage of ownership."
Ed Slott, via Financial Planning

How Much Does Out-of-Pocket Medical Spending Eat Away at Retirement Income?
"Average [out-of-pocket (OOP)] spending (excluding long-term care) was $4,274 per year in 2014, with approximately two-thirds ($2,965) spent on premiums. In 2014, the average retiree had only 65.7 percent of his Social Security benefits remaining after OOP spending and only 82.2 percent of total income. Nearly one-fifth (18 percent) of retirees had less than 50 percent of their 2014 Social Security income remaining after OOP spending, with 6 percent of retirees falling below 50 percent of total income. Post-OOP benefit ratios increased concurrently with the introduction of Medicare Part D for retirees who lacked prescription drug coverage prior to 2006. This group also saw a small increase after the donut hole began closing in 2010."
Center for Retirement Research at Boston College

FAS87 ASC715 Discount Rates and Moody's Rates, Updated September 2017
Includes an unofficial monthly report as of Sept. 29, 2017 of Moody's Daily Long-term Corporate Bond Yield Averages and Moody's Daily Treasury Yield Averages, used as benchmarks by some corporate pension plans.
David Rigby, via BenefitsLink Message Boards

[Opinion]

The 401(k): Kill It or Expand Its Reach?
"State sponsored defined contribution plans run the risk of harming the financial industry and actually decreasing investor options and success in the long-run ... Part of this problem of decision paralysis on the part of employees comes from the purposeful complexity we saw during the era when mutual funds took over the 401k industry in the 1990s ... too much of the emphasis in the past has been on investing rather than saving.... We have consensus on a solution (401k MEP plans) that eliminates many of the impediments facing potential plan sponsors, yet we have not seen Congress move on something they say they all agree on."
Fiduciary News

[Opinion]

American Benefits Council Letter to EBSA Requesting Missing Participant Guidance
"We understand from numerous reports from plan sponsors that the [DOL's] regional offices have been taking aggressive positions regarding how plan sponsors deal with terminated vested retirement plan participants, particularly those participants who are unresponsive or missing.... [T]hese positions have been inconsistent across agents, reflect legal positions the [DOL] has never announced, and in some cases, are contrary to existing Treasury Department regulations. The purpose of this letter is to request that the [DOL] engage in a rulemaking process to issue comprehensive guidance on plan fiduciary responsibilities with respect to unresponsive and missing participants and cease taking ad hoc enforcement positions until the [DOL] provides actual guidance."
American Benefits Council

Benefits in General

Who Is Entitled to Death or Survivor Benefits from an ERISA Plan or from a Federal Employee Benefit Plan?
"Designations may be effective even if there are ambiguities about the benefit shares of each beneficiary and/or the form of payment. An effective designation must be authenticated ... The signature may not need to be the participant's name or even be legible. The federal (Phoenix) substantial compliance doctrine ... creates benefit entitlements enforceable against the plan. The Amara equitable relief principles ... principles may create benefit entitlements enforceable against the plan administrators using those unauthorized procedures or forms."
Albert Feuer, via SSRN

Help! I Found a Mistake in My Employee Benefit Plan!
"Because mistakes in plans are so common, the laws that govern such plans and the regulatory agencies that enforce them generally favor prompt, voluntary correction. Although every plan is different and every mistake is different, (so every situation will need to be evaluated based on its own unique facts and circumstances), certain common themes and risk mitigation strategies run throughout. This article outlines some of these common themes and related steps that can (and, in most cases, should) be taken when a mistake is found in an employee benefit plan."
Boutwell Fay LLP

The Impact of a Mobile-First HR Strategy on Employee Engagement
"The first steps in building out a mobile strategy should center around data security and ensuring an exceptional user experience. Choosing a platform and identifying features are the easy parts. Companies should enlist clients and partners to help drive the roadmap and ensure the development team can execute the project and workflow, and meet the agreed upon organizational objectives."
HR Dive

Discussions
on the BenefitsLink Message Boards

Death After Benefit Election But Before Annuity Starting Date
"Participant in DB plan makes a valid election. Assume it's for a lump sum. All the forms are properly completed and submitted for an annuity starting date of October 1, but the participant dies on September 29. Unless the Plan states otherwise (which I've seen, but rarely), I believe the QPSA provisions of the Plan apply and the benefit election is moot. I think Plan language is fairly explicit that if the Participant dies prior to the annuity starting date then his/her surviving spouse gets a QPSA. But some of my colleagues believe the election should be honored."
BenefitsLink Message Boards

Death Benefit in Excess of QPSA: A Protected Benefit?
"Plan QPSA is defined as 50% survivor annuity but the Plan provides a total death benefit that is the actuarial equivalent of 100% of the accrued benefit. The portion of the death benefit above and beyond the QPSA is an ancillary benefit, but is it protected or instead can the plan be amended to eliminate it?"
BenefitsLink Message Boards

C-Corp's Form 1120 Deadline of Oct. 15 v. Section 430 Funding Deadline of Sept. 15
"An accountant called me, has a calendar year 2016 C-corp client with a DB plan. Because a C-corp's 1120 deadline now extends to 10/15, client just funded the 2016 DB contribution this week, after 9/15. So there will be a 10% excise tax on the minimum required contribution, but because the 2016 contribution was made within the filing time for the 1120 including extensions, do they still get the DB plan deduction for 2016? IRC 404(a)(6) says 'a taxpayer shall be deemed to have made a payment on the last day of the preceding taxable year if the payment is on account of such taxable year and is made not later than the time prescribed by law for filing the return for such taxable year (including extensions thereof).' "
BenefitsLink Message Boards

Safe Harbor Method for Employee Elective Deferral Failures
"Employer did not withhold elective deferrals from 2016 Christmas bonus. Deferrals since the 2016 bonus have been correct (as far as we know). I am wondering whether employer can use Rev Proc 2016-51 Appendix, section .05(9) to correct. My concern is the notice requirement that requires notice be given not later than 45 days after the date on which correct deferrals begin. In my case, is 'the date on which correct deferrals begin' the first payroll after the bonus? If so, then we missed the 45 day deadline. Am I reading this correctly?"
BenefitsLink Message Boards

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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 2017 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 those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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