Retirement Plans Newsletter

December 4, 2018

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[Official Guidance]

Text of PBGC Proposed Revisions to Request for Coverage Determination

"The proposed form and instructions would be used by a plan sponsor or plan administrator to request a coverage determination and would be suitable for all types of requests. The proposed form would highlight the four plan types for which coverage determinations are most frequently requested: [1] church plans ... [2] plans that are established and maintained exclusively for the benefit of plan sponsors' substantial owners ... [3] plans covering, since September 2, 1974, no more than 25 active participants that are established and maintained by professional services employers ... and [4] Puerto Rico-based plans[.]"
Pension Benefit Guaranty Corporation [PBGC]

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[Official Guidance]

ERISA Section 4044 Mortality Table for 2019 Valuation Dates

"This mortality table is used to determine the present value of annuities in involuntary terminations and distress terminations of single-employer plans, as discussed in 29 CFR 4044. This mortality table is also available in EXCEL."
Pension Benefit Guaranty Corporation [PBGC]

[Official Guidance]

2019 ERISA Section 4050 (Missing Participants) Mortality Table

"This mortality table is used as part of the 'missing participant annuity assumptions' as discussed in 29 CFR 4050. This mortality table is also available in EXCEL."
Pension Benefit Guaranty Corporation [PBGC]

DOL Advisory Opinion Addresses Small Retirement Account Balance Auto-Portability Program

"The DOL explained that plan fiduciaries would be subject to ERISA's fiduciary standards -- and any associated liability -- when they opt to participate in the RCH Program under which plan accounts will be transferred to default IRAs.... [Advisory Opinion 2018‑01A] clarified, however, that neither the plan fiduciaries choosing to participate in the RCH Program nor the fiduciaries of the new employer plan that agrees to accept the roll-in transactions would be considered fiduciaries for purposes of the transfer of assets in the default IRA into the new employer's plan."
Buck

IRS Moves to Mandatory Electronic Submission for Retirement Plan VCP Corrections

"Corrections through the new pay.gov procedure may be applied for beginning January 1, 2019.... From January 1, 2019, through March 31, 2019, the IRS will accept either electronic submissions through pay.gov or traditional paper submissions. Paper submissions that are postmarked on or after April 1, 2019, will not be accepted.... All VCP submissions made on or after [April 1, 2019] must be made through pay.gov. These payment rules also apply to plans assessed sanctions through the IRS' Audit Closing Agreement Program (Audit CAP). Plans that correct failures using the Self-Correction Program (SCP) are not required to submit to the IRS or pay a fee."
Ascensus

Challenges Too Many 401(k) Plan Sponsors Don't Consider

"[1] Understanding the extent of legal liability ... [2] Must proactively decide plan hardship provisions ... [3] Bad fees vs. Good fees ... [4] The link between employee financial fitness and company profitability ... [5] Don't know what they don't know."
Fiduciary News

401(k) Deposit Rules for Employers Demystified

"How to fix it if you broke the rules: [1] Make the deposit immediately ... [2] Make up for lost earnings ... [3] IRS corrective programs ... [4] Change your process (keep this from happening again)."
ForUsAll

Fiduciary Breach Suit Against Caterpillar Record Keeper Comes to an End

"Plaintiffs and defendants agreed to drop litigation in a lawsuit by Caterpillar Inc. 401(k) participants alleging the plan's record keeper and an affiliate violated their fiduciary duties when they subcontracted a financial advice service to Financial Engines."
Pensions & Investments

Understanding the Central States Pension Plan's Tale of Woe

"Had the plan been well-run and properly funded, and had principles of multi-employer plan design and the relevant legislation been designed to ensure long-term solvency rather than relying on new generations of contributors to make up for losses, Central States would have weathered these storms. But Central States was missing all this.... They had flaws in their plan design. And they were neither well-run nor properly funded."
Forbes

PBGC OIG Semiannual Report to Congress, for the Period April 1, 2018 to September 30, 2018 (PDF)

45 pages. "[In this report, OIG has] provided the most important management and performance challenges facing PBGC.... [1] Information security ... [2] Modernization of PBGC's key benefits-related information technology systems ... [3] Transparency and accountability of professional services contracting."
Office of Inspector General, Pension Benefit Guaranty Corporation [PBGC]

CBO's Long-Term Social Security Projections: Changes Since 2017 and Comparisons With the Social Security Trustees' Projections (PDF)

20 pages. "The projected 75-year actuarial balance ... has not changed as a percentage of gross domestic product (GDP) since last year ... As a percentage of taxable payroll, the projected 75-year actuarial balance has improved slightly ... CBO projects larger deficits in Social Security's finances than do the Social Security Trustees. That difference is largely explained by CBO's and the trustees' different projections of several key inputs into estimates of the system's finances: the population, earnings subject to Social Security payroll taxes, real interest rates."
Congressional Budget Office [CBO]

Benefits in General

Limitations Periods in Benefit Plans: Guidance from the Courts (PDF)

"ERISA contains specific limitations periods for fiduciary claims ... But ERISA is silent for nonfiduciary suits such as health benefit claims, claims of interference with ERISA rights or document request claims.... To avoid the need to consult state law, a plan may specify that a claimant must bring suit within a certain period after a triggering event ... or within a certain period after completing the internal appeals process. Courts have long upheld such provisions, though courts in different jurisdictions have varied in their approach."
benefits magazine, a publication of the International Foundation of Employee Benefit Plans [IFEBP]

Editor's Pick Can ERISA Plans Require That Fiduciary Claims Be Arbitrated? Should They? (PDF)

"Despite ERISA's endorsement of arbitration for certain issues, breach of fiduciary duty claims, which tend to involve greater damages and tend to attract the most media attention, are not arbitrated. One possible reason is that ... arbitration is not all it is chalked up to be -- for sophisticated fiduciary disputes, arbitration may in fact be just as time consuming, just as expensive, and less likely to lead to a just outcome."
Steptoe & Johnson LLP

Executive Compensation
and Nonqualified Plans

Tax Reform Elevates Split Dollar Arrangements as Incentive Plan

"[T]he potential exists to use split dollar plans to mitigate the significant additional expense of the new 21 percent excise tax, making it even more favorable as a part of an executive compensation package. The remuneration subject to the new tax in Section 4960 includes deferred compensation benefits that are includible in income (some exceptions apply). Split dollar plans are considered loans pursuant to Section 7872 and, therefore, are not included in remuneration."
Fulcrum Partners LLC

Selected Discussions
on the BenefitsLink Message Boards

Distribution Timing When Participant Is Rehired

Plan document reads: "(6) Return to employment. A Participant may not receive a distribution based on Separation from Service, or continue any Installment distribution based on a prior Separation from Service, if, prior to the time the Trustee actually makes the distribution, the Participant returns to employment with the Employer." At issue is the meaning of the phrase "Participant returns to employment" in the last sentence. I contend that the employee has returned on the date he or she begins working. Another party interprets that the employee has "returned to employment" if he or she has been notified they are being called back to work. Who's right?
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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 2018 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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