Retirement Plans Newsletter

July 11, 2019

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Plan Administrator
Stones River Consulting
in Murfreesboro TN / Telecommute

Benefits Advisor
Employee Benefits Security Administration, U.S. Department of Labor
in New York NY / Telecommute

Black Belt in Defined Benefit Plans
CEP Consultants, Inc.
in Melville NY

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[Guidance Overview]

SEC Outlines Parameters of Permissible Broker-Dealer Advice to Customers

"[T]he Interpretation provides examples to illustrate the extent to which a broker-dealer may provide discretionary trading and account monitoring services to customers without triggering investment adviser status and registration requirements. The Interpretation also describes the potential implications of account monitoring, including how monitoring practices may give rise to implied recommendations, and reminds broker-dealers of the importance of appropriate supervisory procedures in this area."
K&L Gates

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IRS Proposed Regs Provide Exception to Unified Plan Rule for Multiple Employer Plans

"The exception to the unified plan rule would only apply to two types of participating employer failures: ... [1] a failure to satisfy a qualification requirement [that] is attributable solely to an unresponsive participating employer.... [2] a failure to satisfy a qualification requirement ... that the MEP administrator reasonably believes might exist, but is unable to verify solely due to an unresponsive participating employer's failure to provide data, documents, or any other information[.]"
Thomson Reuters Practical Law

The Supreme Court's ERISA Docket: May Participants in an Overfunded DB Plan Sue Sponsor-Fiduciaries for a Fiduciary Breach?

"[G]enerally, where a sponsor is compelled, as result of a fiduciary lawsuit, to make additional contributions to a DB plan, all that will happen is that the sponsor's future funding obligation will be reduced. No participant's benefit will be increased.... If the Supreme Court reverses in Thole, and the Thole plaintiffs' attorneys are ultimately awarded attorneys' fees, plaintiffs' attorneys may begin targeting DB plan sponsor-fiduciaries for litigation, very much including litigation targeting any fees paid out of plan assets. The DC litigation 'contagion' could, in effect, spread to DB plans." [Thole v. U.S. Bank, N.A., No. 16-1928 (8th Cir. Oct. 12, 2017; cert. pet. granted Jun. 28, 2018)]
October Three Consulting

Formula for Participant Communication: Fun = Engagement

"[T]ake the latest piece that you've sent (or are about to send) to plan participants, and show it to someone in your office who knows little about the topic. Ask them to read the communication, and then ask if it was fun to read. If the answer was 'no,' then you probably have some work to do with your retirement plan messaging. And you're not alone."
Cammack Retirement Group

Beyond Plan Audit Compliance: Improving the Financial Statement Audit Process

Written statements by invited witnesses, submitted for June 25 meeting of the ERISA Advisory Council: [1] Ian Dingwall, Chief Accountant, Employee Benefits Security Administration, Retired; [2] James Haubrock, AICPA Employee Benefit Plan Audit Quality Center; [3] Dennis Mahoney, Wharton Business School at the University of Pennsylvania; [4] Will Hansen, American Retirement Association; [5] Steven L. Dobrow, Primark Benefits; [6] Tim Rouse, SPARK Institute; and [7] Chantel Sheaks, U.S. Chamber of Commerce.
ERISA Advisory Council, Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

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Permissive Transfers of Uncashed Checks from ERISA Plans to State Unclaimed Property Funds

Written statements by invited witnesses, submitted for June 26 meeting of ERISA Advisory Council: [1] G. Allen Mayer, Illinois State Treasurer's Office, on behalf of the National Association of Unclaimed Property Administrators (NAUPA); [2] Meghan Aguirre, Nebraska State Treasurer's Office; [3] Mark William Bracken, Massachussetts Office of the Treasurer and Receiver General; [4] Dennis Johnston, Utah Office of the State Treasurer; [5] George M. Sepsakos and Kevin L. Walsh, Groom Law Group; [6] M. Garrett Hohimer and Holly Tardif, Alight Solutions; [7] Michael Hadley, Davis & Harman; [8] Aliya Robinson, ERISA Industry Committee (ERIC); [9] Jan M. Jacobson, American Benefits Council; [10] Peter Preovolos and Spiro G. Preovolos, PenChecks, Inc.; [11] J. Spencer Williams, Retirement Clearinghouse LLC.
ERISA Advisory Council, Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Taking Stock: Is Help on the Way for Struggling Multiemployer Pensions?

"HR397, also known as the Butch Lewis Act ... is expected to impact 10% of all multiemployer plans totaling 1.5 million participants ... [It] is the only bill the Committee has passed despite many similar versions currently floating around in the Senate."
NEPC

As the Workforce Ages, Phased Retirement Grows

"Most phased retirement programs allow employees to return to work while collecting some specific benefits. Employees in phased retirement programs may have a limit to the number of hours they can work per week, and the programs may last months, years or indefinitely.... Phased retirement programs ... also help businesses prevent 'brain drain,' which can become a problem when unemployment is low and filling open jobs can take months."
HR Dive

[Opinion]

House Ways and Means Committee Vote Paves the Way for Bill Stabilizing Financially Struggling Pension Plans

"The committee's 25 to 17 party line vote during a markup session ... moves the Rehabilitation for Multiemployer Pensions Act of 2019 (better known as the Butch Lewis Act) out of the committee and on the path to the House floor for a full vote. The bill offers an innovative way to save from insolvency about 130 financially troubled multiemployer pension plans, which are negotiated by a union and at least two employers, while fully protecting the earned benefits of hundreds of thousands of retirees."
Pension Rights Center

Benefits in General

Vendor Process Reviews Are Crucial to Retirement Plan Cybersecurity

"[M]any organizations have put cybersecurity contingency plans in place to respond to malicious attacks, but fewer have addressed the fact that as many as half or more of cybersecurity incidents do not involve any bad actors."
PLANSPONSOR; free registration may be required

Executive Compensation
and Nonqualified Plans

Sixth Circuit Says ERISA Preempts Ex-CEO's Claims Over Deferred Compensation Plan

"A unanimous three-judge panel of the 6th U.S. Circuit Court of Appeals said the plan Safelite offered to Dan Wilson and other executives qualified as an employee pension plan under [ERISA], even though they could withdraw some of the money while they still worked for the company." [Wilson v. Safelite Group, Inc., No. 18-3408 (6th Cir. Jul. 10, 2019)]
Reuters

Dodd-Frank Act Hedging Policy Disclosures Begin

"[I]ssuers other than smaller reporting companies and emerging growth companies must include the disclosure in proxy and information statements with respect to the election of directors during fiscal years beginning on or after July 1, 2019. For smaller reporting companies and emerging growth companies, compliance is required for fiscal years beginning on or after July 1, 2020."
Shearman & Sterling LLP

Selected Discussions
on the BenefitsLink Message Boards

Form 8955-SSA -- Remove Former Participants When Getting Required Minimum Distributions?

401(k) plan. A terminated participant was added to Form 8955-SSA in 2016. In 2018, the participant started receiving RMDs. The Instructions to the Form, for Code D, state, "Use this code for a participant previously reported under the plan number shown who is no longer entitled to those deferred vested benefits. This includes a participant who has begun receiving benefits." Does that say to include former participants who have started to receive RMDs?
BenefitsLink Message Boards

Compensation Definition: Inclusion of Medical Premiums for a 2%-Plus S Corp Shareholder

S Corp sponsors 401(k) SHM plan, definition of compensation is 415 safe harbor, about 10 participants, including the owner. Box 1 and Box 5 of Form W-2 have different amounts, Code D is $18,500. Accountant not taking into account medical premiums for the 2%+ shareholder. Isn't medical a fringe benefit? (Getting conflicting answers.)
BenefitsLink Message Boards

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Press Releases

OneDigital Acquires Carolina Benefits Group, Inc.
OneDigital Health and Benefits

Most Popular Items in the Previous Issue

The Case for New Public Pension Accounting Standards (PDF)
National Conference on Public Employee Retirement Systems [NCPERS]

Congress Is Coming for Your IRA
The Wall Street Journal; subscription may be required

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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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