Retirement Plans Newsletter

July 30, 2019

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Jobs

DC Plan Administrator
Northeast Professional Planning Group, Inc.
in Red Bank NJ / NY

Benefits Analyst
Bertelsmann, Inc.
in New York NY

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Webcasts, Conferences

Voluntary Fiduciary Correction Program
August 8, 2019 WEBCAST
Employee Benefits Security Administration [EBSA], U.S. Department of Labor

IRA Advanced Institute
September 10, 2019 in NJ
Retirement Industry Trust Association [RITA]

Collection Procedures Institute
September 25, 2019 in MA
International Foundation of Employee Benefit Plans [IFEBP]

Best Practices for Navigating Employee Benefits After Termination
September 30, 2019 WEBCAST
Lorman Education Services

Plan Expenses: Avoiding Trouble Through Appropriate Use of Plan Assets
October 10, 2019 WEBCAST
American Bar Association Joint Committee on Employee Benefits [JCEB]

Certificate in Employee Benefits Law Seminar
October 21, 2019 in NV
Institute for Applied Management & Law, Inc.

Employee Benefit Plans of Tax-Exempt and Governmental Employers
October 24, 2019 in DC
American Law Institute Continuing Legal Education Group [ALI CLE]

►See 136 Upcoming Webcasts and Conferences

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[Official Guidance]

Text of DOL Prohibited Transaction Exemption: Retirement Clearinghouse, LLC

73 pages. "This document contains a notice of a five-year exemption ... [which] permits [Retirement Clearinghouse (RCH)] to receive certain fees in connection with the transfer under the RCH Program, of an individual's Default IRA or Eligible Mandatory Distribution Account assets to the individual's New Plan Account, without the individual's affirmative consent, provided the conditions described [in this exemption] are satisfied."
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

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[Guidance Overview]

DOL's Unexpected New MEP Field Assistance Bulletin 2019-01: A First Housekeeping Step in Getting Ready for New MEPs and Group Arrangement Rules

"The most telling stories about this FAB are that [1] it establishes the data groundwork that both the DOL and the IRS need to determine what requirements will need to be imposed when RESA and SECURE (or their successors) eventually pass; and [2] those who argued that this data is somehow an unwarranted imposition of an administrative burden on MEP operations need to be prepared ... for a substantial new set of regulations over time designed so that the agencies have sufficient information to fulfill their mandate."
Business of Benefits

[Guidance Overview]

It's Just Another MEPish Monday

"[T]here are essentially five requirements that a group or association must satisfy in order to offer a multiple employer plan to its employer members: [1] The association must have at least one substantial business purpose other than the provision of benefits such that the association would still be viable if it did not offer the benefit plan. [2] The activities of the association must be controlled by its employer members, and the employers that participate in the MEP must control the MEP in substance and in form, either directly or indirectly. [3] The association must have a formal organizational structure... [4] Participation in the plan must be limited to the employees of the association's employer members and certain working owners ... [5] The participating employers must have some commonality of interest, which could include being in the same industry or geographic region[.]"
DWC

[Guidance Overview]

403(b) Plans Must Comply with the 'Once In, Always In' Rule This Year

"Regardless of when the relief ends or ended for a given 403(b) plan, all plans should be complying with the 'once in, always in' rule beginning this year. The IRS has simplified the process of coming into compliance somewhat, by permitting plans that have previously failed to comply with the 'once in, always in' rule to make a fresh start. Specifically, beginning with plan years that start on or after January 1, 2019, plan administrators may treat the 'once in, always in' rule as if became effective on January 1, 2018."
Verrill Dana, LLP

DOL Announces Final Rule on Multiemployer Retirement Plans

"The final regulation clarifies that employer groups or associations or PEOs can -- depending on certain criteria -- constitute 'employers' under ERISA and can establish or maintain an individual employee retirement benefit plan.... The final regulation also permits certain business owners without employees to participate in a multiple employer plan sponsored by an employer group or association."
InsuranceNewsNet.com

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Court Denies University of Pennsylvania's Request for Appeal in ERISA Suit

"The university filed the petition for a rehearing after an appeals court judge ... reversed portions of a U.S. District Court's dismissal of a lawsuit against University of Pennsylvania that ... claimed the university enabled the 403(b) plan's providers, TIAA-CREF and Vanguard Group, to collect excessive fees by using duplicative investment options and retaining underperforming investment options." [Sweda v. Univ. of Penn., No. 17-3244 (3d Cir. May 2, 2019; rehearing denied Jul. 19, 2019)]
Pensions & Investments

Economic and Regulatory Climate May Spur Pension Risk Transfer Agreements (PDF)

"Changes in the economic and regulatory environment are prompting an increasing number of plan sponsors to consider a more immediate solution: transferring some or all of their pension benefit obligations to an insurance company with the purchase of group annuities. In a May 2017 survey of 80 senior finance executives at companies that sponsor defined benefit pension plans, more than 4 in 10 respondents said their firms had already completed a pension risk transfer."
Prudential

Workers Worried about Outliving Their Money in Retirement

"Although 40 percent of retirement plan sponsors believe market risk is the most important factor in target-date investments, 41 percent of American workers are much more worried about running out of money in retirement ... Only 14 percent of younger plan participants (ages 25-54) wanted employers to 'leave them alone' when it came to help with retirement savings; 18 percent of older plan participants (ages 55-65) felt the same way. However, plan sponsors thought some 28 percent of participants wanted to be left alone."
American Century Investments

Student Loan Debt Significantly Impacts Retirement Savings

"A large majority of American adults (84%) report that student loans are negatively impacting the amount they are able to save for retirement ... Nearly three out of four (73%) borrowers report they are putting off maximizing their retirement savings, saying they expect to begin or increase their contributions once their student loans are paid off. Among those who are not saving for retirement at all, more than one quarter (26%) point to the need to pay off student loan debt as the reason."
TIAA

[Opinion]

Congress Has a Dangerous Idea for Your 401(k)

"[T]he SECURE Act in the House and RESA in the Senate ... seek to encourage a currently rare option in 401(k) plans: annuities. In principle, this could be wonderful, if the bills permitted only true annuities -- that is, investments that pay a guaranteed, fixed sum of money each year -- and if the fees they charged savers were kept in check. Unfortunately, neither is the case."
Ethan Schwartz in Bloomberg, via Yahoo News

Benefits in General

Making Sense of the New Auditing Standard for ERISA Plans

"SAS 136 replaces a modified opinion ... used with ERISA Section 103(a)(3)(C) audits with a two-pronged opinion.... The auditor must obtain plan sponsor acknowledgements that the sponsor is responsible for determining [1] whether a 103(a)(3)(C) audit is permissible and whether the certification meets ERISA requirements, [2] maintaining and providing a current plan document, [3] preparing and fairly presenting financial statements, and [4] providing a substantially completed (draft) Form 5500."
Ascensus

Does Employee's Signed Release Include ERISA Claims?

"The Southern District of Iowa dismissed the plaintiff's claim after finding that ... the plaintiff's release covered ERISA claims against the plan's trustee ... The court considered that [the plaintiff] had not taken any steps to act as a representative of the ESOP ... had not satisfied other procedural requirements to represent the ESOP, and had not recruited any other plaintiffs.... [T]he court dismissed the case because, as the only plaintiff, [the plaintiff's] claim had been released." [Innis v. Bankers Trust Co. of South Dakota, No. 16-650, (S.D. Ia. Apr. 30, 2019)]
Winston & Strawn LLP

Employers Beware: South Carolina Abolishes Common-Law Marriage

"[T]his ruling reaches beyond state lines ... After July 24, 2019, it no longer is enough for employees claiming an employee is a 'spouse' for employee benefit plan purposes simply to establish they were married under the common law of South Carolina.... This Court decision will also have implications for employees in South Carolina seeking to take [FMLA leave] to care for a spouse with a serious health condition." [Stone v. Thompson, 17-000227 (S.C. Jul. 24, 2019)]
Jackson Lewis P.C.

Social Security and Paid Leave: Views of Voters Age 50+

"Although nearly eight in 10 voters ages 50+ (78%) strongly or somewhat support the concept that more workers should have access to paid leave, just over half strongly or somewhat support funding paid leave with higher taxes or delays in getting Social Security ... [If] older voters were required to pay higher federal payroll taxes, the overwhelming majority would rather the money raised be used to shore up Social Security for the long term (82%) than to fund paid leave (17%)."
AARP

Fourth Circuit Allows Beneficiary to Pursue Fiduciary Breach Claims Against Employer

"The Fourth Circuit concluded that a plaintiff need not allege that an ERISA plan administrator and named fiduciary also satisfies the functional fiduciary test to state a plausible ERISA fiduciary breach claim. The Fourth Circuit faulted the district court for overlooking the employer's roles as joint plan administrator and named fiduciary, and instead focusing on cases involving functional ERISA fiduciary status." [Dawson-Murdock v. National Counseling Group, Inc., No. 18-1989 (4th Cir. Jul. 24, 2019)]
Thomson Reuters Practical Law

Executive Compensation
and Nonqualified Plans

Sixth Circuit Case Emphasizes Potential Employer Liability to Participants for 409A Violations

"The former CEO incurred substantial penalties on his $9.1 million NQDC plan account due to deferral election failures under Section 409A that were identified in a 2014 federal audit. Wilson sued the employer in federal court, asserting state law claims for breach of contract and negligent representation. The district court (as affirmed by the 6th Circuit) found the NQDC plan to be an 'employee pension benefit plan' covered under ERISA, which preempts the state law claims[.]" [Wilson v. Safelite Group, Inc., No. 18-3408 (6th Cir. Jul. 10, 2019)]
Kilpatrick Townsend

Selected Discussions
on the BenefitsLink Message Boards

Form 5558s: Put Multiple Forms in One Envelope?

Does anyone know of a reason that we cannot mail several 5558 forms in one envelope? we mail them certified. We have about 10 clients who need an extension of their 5500-SF and 5500.
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Press Releases

Most Popular Items in the Previous Issue

DOL Fact Sheet: Final Rule on Association Retirement Plans (ARPs) and Other Multiple-Employer Plans (MEPs)
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

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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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