Retirement Plans Newsletter

December 21, 2017

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General Atomics
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[Official Guidance]

Text of PBGC Final Regs: New Programs for Locating Missing Participants, Covering Most Defined Contribution Plans
134 pages. "[PBGC] administers a program to hold retirement benefits for missing participants and beneficiaries in terminated retirement plans and to help those participants and beneficiaries find and receive the benefits being held for them. The existing program is limited to single-employer defined benefit pension plans covered by the pension insurance system under [ERISA]. With this final regulation, PBGC revises the existing program to simplify procedures and remove unnecessary rules and ... establishes similar programs for most defined contribution plans, multiemployer plans covered by the pension insurance system, and certain defined benefit plans that are not covered."
Pension Benefit Guaranty Corporation [PBGC]

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[Guidance Overview]

PBGC Expands Missing Participants Program to Terminated 401(k) and Other Plans
"Beginning in January, terminating defined contribution plans will have the option of transferring missing participants' benefits to PBGC instead of establishing an IRA at a financial institution. Participant accounts will not be diminished by ongoing maintenance fees or distribution charges, and PBGC will pay out benefits with interest when participants are found.... Because the expanded program is only open to plans that terminate on or after January 1, 2018, PBGC expects it will be several months before new missing participant names are added to the existing online directory."
Pension Benefit Guaranty Corporation [PBGC]

[Guidance Overview]

Puerto Rico Treasury Department Issues Guidance on Retirement Plan Limits for 2018 (PDF)
"For plans qualified only in Puerto Rico, the limits on elective deferrals, catch-up and after-tax contributions, and the highly-compensated employee threshold all remain unchanged for 2018, while the limits on annual benefits, annual contributions, and plan compensation all increased for 2018."
Groom Law Group

Tenth Circuit Agrees with District Court That Catholic Health Initiative's Plan Is a 'Church Plan' (PDF)
"[T]he Tenth Circuit directly addressed several key issues left open by the Supreme Court in Advocate Health, including [1] whether an internal plan administrative committee can qualify as a 'principal-purpose organization' that maintains a church plan, [2] what it means to 'maintain' a plan for purposes of the church plan exemption, and [3] whether the church plan exemption is constitutional under the First Amendment's Establishment Clause.... [T]he Tenth Circuit decided each of these issues favorably to CHI and other religiously-affiliated healthcare systems." [Medina v. Catholic Health Initiative, No. 16-1005 (10th Cir. Dec. 19, 2017)]
Groom Law Group

CenturyLink Complaint Claims Large Cap Multi Manager Fund Is Defective Design
"As in other ERISA prudence litigation, the plaintiff references research that purports to prove the efficient market hypothesis. But, despite the claims of some plaintiffs in 401(k) plan fee litigation, no court has found, as a matter of law, that including an actively managed fund in a 401(k) plan fund menu is per se imprudent or, even, creates a presumption of imprudence. Indeed, despite these plaintiffs' claims, it's hard to imagine a court adopting such a standard."
October Three Consulting

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The Pleading Standard Applicable to Claims Involving Private Company ESOPs: Does Dudenhoeffer Apply?
"A typical claim in the private company context involves an allegation that [an ESOP] overpaid for company stock. Those cases arguably do not fit squarely into the pleading framework that Dudenhoeffer established. This article addresses how federal courts have applied Dudenhoeffer's holding in cases involving ESOPs sponsored by closely held companies."
Trucker Huss

Bill Would Allow E-Delivery of Plan Information as Default Compliance Method
"[T]he 'Receiving Electronic Statements to Improve Retiree Earnings (RETIRE) Act' (H.R. 4610) would permit retirement plan sponsors to automatically enroll participants in electronic delivery for plan communications, while providing an opt-out option for employees who still prefer to receive paper documents."
National Tax-Deferred Savings Association [NTSA]

Splitting Pension Plans Can Reduce PBGC Variable Rate Premiums
"[This article considers] a strategy for reducing PBGC variable-rate premiums -- the split-up of a plan ... into [one] plan that covers participants subject to the variable-rate premium headcount cap ... and a [second] plan that covers all other participants. Such a strategy may reduce PBGC variable-rate premiums ... [1] it can be used to maximize the effect of the headcount cap ... [2] it may allow the sponsor to make contributions that reduce variable-rate premiums where the headcount cap would otherwise prevent that result."
October Three Consulting

The Multiemployer Pension Plan Crisis: History, Legislation, and What's Next? (PDF)
52 pages. Topics include: [1] Is MPRA working? [2] What happens if nothing happens? [3] Potential solutions: (a) PBGC takeover of critical and declining status plans; (b) PBGC funding; (c) Partitioning of orphans; (d) Plan mergers; (e) Benefit modifications; (f) Variable defined benefit plans; (e) Composite plans; and (f) Loan program proposals.
U.S. Chamber of Commerce

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Fee Structure and Evaluation in 403(b) Plans
13 pages. "One-third of respondents are unsure if their plan uses revenue sharing to pay expenses, including 50 percent of small plans. One-fourth of plans reallocate revenue sharing among all participants while one-fourth of respondents are unsure.... About one-fourth of respondents are not aware of formal fee policy statements. Half of respondents are unfamiliar with fee levelization."
Plan Sponsor Council of America [PSCA]

Retirement Assets Total $27.2 Trillion in Third Quarter 2017
"Total US retirement assets were $27.2 trillion as of September 30, 2017, up 2.3 percent from June 30, 2017. Retirement assets accounted for 35 percent of all household financial assets in the United States at the end of September 2017."
Investment Company Institute [ICI]

Puerto Rico Ordered to Make Interest Payments on Pension Bonds
"Puerto Rico must keep paying pension bondholders while the judge overseeing the island's bankruptcy case decides whether the investors also have a right to retirement contributions made to government workers. Puerto Rico, which has about $3 billion of pension bonds outstanding, owes about $13.9 million each month in interest to holders of the debt."
Bloomberg

[Opinion]

Joint Statement Opposing 'Composite' Pension Legislation
"The composite legislative proposal does not ensure that earned pensions will be fully paid in either existing multiemployer pension plans or in newly created plans. The composite proposals put benefits at risk, even in those multiemployer plans that are well-funded today."
Pension Rights Center and eight other employee and retiree organizations

Benefits in General

[Guidance Overview]

Tax Professionals Need 2018 PTIN; Continuing Education for Annual Filing Season Program Due by Year End
"[F]ederal tax return preparers ... must renew their Preparer Tax Identification Numbers (PTIN) that expire Dec. 31, 2017. Anyone who prepares or helps prepare any federal tax return, or claim for refund for compensation, must have a valid 2018 PTIN from the IRS.... Failure to have and use a valid PTIN may result in penalties. For those who have a 2017 PTIN, the renewal process takes a few moments online."
Internal Revenue Service [IRS]

Communicating Your Benefits Programs
"[W]hen you create your benefit communication materials, in whatever format you choose, remember to: [1] Focus on 'what's in it for me' from the employee's perspective. [2] Keep content clear and concise. No legal documents, please! [3] Provide the information employees need, when they need it.... [4] [I]nclude a 'call to action.' "
Willis Towers Watson

Savings Needed to Cover Health Care Costs in Retirement Going Up (PDF)
"In 2017, a 65-year-old man needs $73,000 in savings and a 65-year-old woman needs $95,000 if each have a goal of having a 50 percent chance of having enough savings to cover premiums and median prescription drug expenses in retirement.... A couple with median prescription drug expenses needs $169,000 if they have a goal of having a 50 percent chance of having enough savings to cover health care expenses in retirement."
Employee Benefit Research Institute [EBRI]

Executive Compensation
and Nonqualified Plans

[Guidance Overview]

Section 409A Relief for Tax Payments from Section 457A Plans
"[IRS Notice 2017-75] provides that a taxpayer may make a distribution from a grandfathered plan to pay for federal, state, local or foreign taxes due as a result of including the value of the grandfathered plan in gross income, and that distribution will not be treated as an impermissible acceleration under Code section 409A ... or a material modification ... The Notice's relief is limited to the amount of federal, state, local, and foreign income tax withholding that would have been remitted by an employer if there had been a payment of wages equal to the income includible by the service provider."
Trucker Huss

Tax Bill's Impact: Consider Payment of Executive Comp Before Year-End
"Companies subject to the $1 million deduction limitation of Section 162(m) in 2018 may want to consider accelerating payment of compensation otherwise payable in 2018.... Annual bonuses in respect of 2017 are worthy of particular (and quick) examination."
Baker Botts L.L.P.

Tax Reform Redefines 'Reasonable' Compensation for Nonprofit Execs
"The measure, which imposes a 21% excise tax on compensation above $1 million for each of the five highest-paid employees of a nonprofit organization, promises to overhaul the way large hospitals and health systems compete for top talent."
HealthLeaders Media

Selected Discussions
on the BenefitsLink Message Boards

Remove Installment Payment Method If Already in Progress?
Taking over a plan that I see offers installment payments. In an effort to simplify, I recommend that they remove that option, but now I find that one of the owners started taking an installment series in 2017. Does that mean the employer can't remove the provision from the plan?
BenefitsLink Message Boards

Plan Mistakenly Accepted After-Tax Contribution by Participant
A plan participant was able to write a check to his plan account on his own. Not deferral, not through payroll, etc. The plan does not allow for post tax contributions. How to correct?
BenefitsLink Message Boards

OK to Impose Deadline to File Claims Under Unfunded Severance Plan?
Company sponsors an unfunded severance plan subject to ERISA. They impose a 120-day limit on filing claims. (120 days is calculated from date employee receives notice that he/she won't receive benefit or notice of the amt of his/her benefits.) DOL regulations don't specifically address this, but they do say that the claims procedures can't inhibit or hamper the filing of claims. (The example they give for this is that you can't charge a fee for processing claims.) Is a time limit on filing claims reasonable?
BenefitsLink Message Boards

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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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