Retirement Plans Newsletter

March 5, 2019

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Jobs

Senior Pension Administrator - Combo DB / DC Plans
Primark Benefits
in Burlingame CA / Telecommute

Plan Administrator
BSP Retirement Services
in Oldsmar FL

Senior Consultant, Compliance - Retirement
The Segal Group
in San Francisco CA

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Webcasts, Conferences

Supplemental Pay Essentials: Severance Pay, Deferred Compensation, Recordkeeping, and Fringe Benefits
March 21, 2019 WEBCAST
Clear Law Institute

Retirement Plans: Key Fiduciary Issues in 2019
March 28, 2019 in NY
Morgan Lewis

Trump's Executive Order on Retirement Plans: Far Reaching Implications Explored
April 15, 2019 WEBCAST
Knowledge Group

Form 5500 Workshop
April 25, 2019 in MO
FIS Relius Education

ERISA Workshop
April 26, 2019 in MO
FIS Relius Education

IRA University
May 1, 2019 WEBCAST
Ascensus

Governmental Plans: An Overview and Analysis of Retirement Program Options
June 18, 2019 WEBCAST
ASPPA [American Society of Pension Professionals & Actuaries]

►See 181 Upcoming Webcasts and Conferences

►See 1489 Recorded Webcasts


Discussions

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New Comments and Topics

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[Guidance Overview]

Proposed Regulation BI Coverage of Retirement Investors (PDF)

"The debate centers around the atypical reference to 'legal representative' in the proposed retail customer definition. In the proposing release, the SEC points to trusts representing natural persons as the exemplar of such a legal representative. Some commentators have seized upon that reference to argue that plan sponsors or other fiduciaries acting for the plan as whole and not for participants individually -- e.g., in selecting investment options for a defined contribution plan or managing the assets of a defined benefit plan -- are or should be treated as 'retail customers' for this purpose."
Eversheds Sutherland

[Advert.]

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California Supreme Court Holds That Air Time Is Not a Vested Right, But Passes on Reexamining 'California Rule'

"The California Supreme Court issued a long-awaited decision ... addressing whether the Legislature's elimination of 'air time' as an optional benefit for members of CalPERS unconstitutionally impaired a vested contractual right. Holding that the air time benefit was not entitled to constitutional protection, the Court took a pass on reviewing a much bigger question: Whether the so-called 'California Rule' for modifying pension benefits should remain intact." [Cal Fire Local 2881 v. CalPERS, No. S239958 (Cal. Mar. 4, 2019)]
Liebert Cassidy Whitmore

Fidelity Faces Massachusetts State Inquiry Over Fees Charged for 401(k) Plans

"Fidelity Investments is facing more scrutiny over fees it charges some mutual funds for using its platform to access retirement plan customers. The Massachusetts ... securities division sent a letter on Feb. 27 to Boston-based Fidelity requesting information about those fees. The inquiry follows a Feb. 21 lawsuit against Fidelity by an investor in T-Mobile USA's 401(k) plan that claims the firm conceals so-called infrastructure fees."
Pensions & Investments

Wildman v. American Century: Process Saved the Day (PDF)

"This case has dispelled the increasing beliefs that: [1] lowest cost by the way of index investments is equivalent to a fiduciary safety net when compared to higher cost active alternatives; [2] a higher yielding stable value fund is a better fiduciary option; or [3] an investment on a Watch List for an extended period time without removal is imprudent. Meeting the fiduciary standard requires plan fiduciaries to inquire, collect, investigate, discuss, debate, and make informed decisions." [Wildman v. American Century Services, LLC, No. 16-737 (W.D. Mo. Jan. 23, 2019)]
Chao & Company, Ltd.

PBGC Proposes Simplified Methods for Withdrawal Liability Calculations

"The major technical difficulty in applying the simplified methods arises from the requirement that increases in contributions required to meet a funding improvement plan (FIP) or rehabilitation plan (RP) must be disregarded. This requires the plan administrator to adjust each employer's contribution history by removing only those contributions due to an increase required to meet a FIP or RP. Plan administrators should examine the proposed simplifications to determine whether they provide any substantial reduction in the administrative burden."
Cheiron

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Blockchain and Retirement Plan Administration

"Much of the change this new technology will make in, e.g., custody and 401(k) recordkeeping will be driven by the deployment of blockchain in securities transactions (broadly defined). Because retirement savings assets make up a large percentage of the securities market, ... plans are likely to have significant impact on this process. One 'cluster' of retirement plan issues may ... see the development of blockchain solutions sooner rather than later: lost participants, small balances, moving money at job change, and the rollover process."
October Three Consulting

[Opinion]

Correlation of Returns: The ERISA 404(c) Fiduciary 'X' Factor

"[W]hen factoring in the correlation of returns between an actively managed mutual fund and a comparable index fund, actively managed funds often charge an effective annual expensive ratio that is often 500-600 percent higher than the fund's publicly stated expense ratio.... Mutual funds and plan service providers do not like to talk about cost-efficiency or 'closet' indexing. Plan sponsors must insist on such information in order to properly both the plan and themselves against fiduciary liability."
The Prudent Investment Fiduciary Rules

[Opinion]

The Attack on Defined Benefit Plans' Actuarial Equivalence: Reasonable Becomes Unreasonable

"These lawsuits are questioning actuarial equivalence assumptions with regard to retirees who have already begun receiving benefit payments; thus they are questioning the rates applicable to benefits earned in the past. To go back historically and determine what actuarial equivalence mortality and interest rates should have been used (i.e. considered reasonable) over the history of the plan would be both administratively costly and nearly impossible."
Watkins Ross

Benefits in General

[Guidance Overview]

Final Balloted Draft of Employee Benefit Plan Audit Standards Released by Auditing Standards Board

"[T]he Final Balloted Draft standard shouldn't affect the nature and extent of audit procedures performed by compliant auditors. However, the standard formally memorializes the objectives of the audits and the responsibilities of the auditor and management, to provide a clear framework of accountability for all parties involved."
Belfint Lyons Shuman

Respondeat Superior in the ERISA Context (PDF)

"Respondeat superior claims in the ERISA context may be made in one of two ways; while there is no circuit split on this issue, there is a split of authority as to the manner in which these claims should be addressed, and this article considers these rulings."
The Wagner Law Group, via Benefits Law Journal

Executive Compensation
and Nonqualified Plans

[Guidance Overview]

Tax-Exempt Employers May Owe New Excise Tax for 2018 Tax Year (PDF)

"Although parts of the interim guidance likely will require taxpayers to go through additional administrative hurdles and compliance steps, the notice appears relatively taxpayer-friendly and may even minimize the impact of section 4960."
Groom Law Group, via Tax Notes

Consider These Executive Pay Issues When Preparing for IPO

"In preparing for an IPO, there are a number of tactical issues, such as drafting plan documents, preparing required disclosures and ensuring plan designs are compliant with applicable securities and tax rules. But there are six critical compensation issues a board must consider in preparation for an IPO on a US-based exchange."
Meridian Compensation Partners, LLC

Selected Discussions
on the BenefitsLink Message Boards

Allocating Net Gain or Loss from a Pooled Account

CPA has a plan with a 401k/PS pooled account. He's allocating earnings based on salary (individual salary/total salary multiplied by gain or loss). This gives someone who is eligible, but not participating, a share of the gain or loss. Is that correct?
BenefitsLink Message Boards

Determination Date for $5,000 Cap on Involuntary Distribution?

We sent a terminated 401(k) participant a letter stating we would roll their account into an IRA if they did not return a distribution form. At the time their account balance was less than $5,000. Now, 45 days later, we have not heard back, but their account balance has increased to be more than $5,000. Can they still be forced out of the plan?
BenefitsLink Message Boards

Failure to Credit Employer Non-Elective Contribution to Nonqualified Plan

The employer's NQ plan should have credited its COO's fully vested NQ plan account with a significant amount of employer non-elective contributions over the last 5-6 years. Client would like to credit all the past-due amounts into the COO's account in 2019. I'm having trouble identifying the specific 409A violation because the error doesn't involve an employee deferral election or the timing or form of benefit payment. However, the error means that Form W-2s issued to the COO showed the wrong amount of FICA wages each year. Is it a 409A violation?
BenefitsLink Message Boards

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Lois Baker, J.D., President  loisbaker@benefitslink.com
David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
Holly Horton, Business Manager  hollyhorton@benefitslink.com

BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2019 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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