Retirement Plans Newsletter

May 29, 2020

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Plan Documents - 2020 Update
July 29, 2020 WEBCAST
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View COVID-19 News and Resources

[Guidance Overview]

DOL Greenlights Electronic Delivery of ERISA Documents

"Plan sponsors and administrators who wish to use the new safe harbor would need to send paper notices to all individuals they wish to cover by it. The DOL provided no exception for individuals who have been receiving information electronically. Thus, every sponsor and administrator would be affected by this new requirement, unless they want to stick with the pre-existing safe harbor or expensive and burdensome paper notification. After the initial push, however, it should be smooth sailing."

Nixon Peabody LLP

[Guidance Overview]

DOL's Long-Awaited Electronic Disclosure Rule for ERISA Retirement Plans Is Finally Here!

"[T]he new E-Disclosure Final Rule does not apply to documents within the jurisdiction of the IRS such as 401(k) plan safe harbor notices, ERISA 204(h) notices, special tax notices relating to plan distributions and notices to interested parties required in connection with IRS determination letter filings. The IRS has indicated that it intends to issue additional guidance regarding the electronic delivery of participant notices required under the Internal Revenue Code, thus plan sponsors should keep an eye out for this new guidance."

Ballard Spahr LLP

Don't Want to Make Safe Harbor Contributions for Your HCEs After All? Here's a Fix (or Two)

"Although Joe and Carole are both HCEs (as well as key employees) who could be excluded from safe harbor contributions, the plan document must specifically provide for their exclusion. Since the current document does not exclude them, the company is required to fund the contribution for them the same as any other eligible participant.... Are there any options or reprieve available when it comes to contributions for HCEs and key employees? Can't they just retroactively amend their plan to eliminate the contribution requirement for themselves? They can 'discriminate' against themselves, right? Short answer(s) -- not officially."

DWC

Survey Results: DC Plan Response to CARES Act Varies by Industry and Recordkeeper

"21% of the DC plan respondents had taken some type of workforce action, including salary reductions, layoffs, or furloughs. A third of recordkeepers added the capability for coronavirus-related distributions (CRDs) across all the plans they served, and required sponsors to opt out if they did not want to offer this option.... 53% of recordkeepers automatically waived minimum required distributions ... 64% of recordkeepers had already instituted DC plan loan deferment provisions ... The vast majority of sponsors said they had no plans to suspend or reduce their matching contribution."

Callan

Arizona Sends Legislation to Governor to Adopt NAIC Annuity Sales Model Regulation

"The Arizona House of Representatives voted 36-24 to approve the measure ... The alignment of federal and state regulation mitigates against conflicting rules for financial professionals who provide important advice and products to consumers. Arizona's new regulation,like the NAIC model and Reg BI, preserves consumers' choice of the financial professional and products that best meets their needs."

Insured Retirement Institute [IRI]

Editor's Pick Public Retirement Systems and the Pandemic: A Coming Wave of COLA Litigation?

"Reducing COLAs after 2008 led to widespread litigation. Another round of COLA reductions is likely to lead to further litigation.... What is the central claim being raised in COLA litigation? ... What is the key consideration involving Contract Clause claims? ... What happens in states where courts have not adopted the three-part U.S. Trust test? ... What happens in states with a pension clause in the state constitution? ... What COLA litigation may arise as a result of COVID-19? ... What other lessons emerged from prior COLA litigation?"

Fox Rothschild LLP

[Opinion]

April 15, 1981: A Snapshot in Retirement Policy History

"It's no surprise that politicians and number-crunchers were worried about Social Security in 1981, and state and local governments have been kicking the can with respect to their pension funds for far longer than these 39 years. But it's startling that even on a wholly arbitrary day, there's so much material to illustrate this. And it's still important to bear in mind how very longstanding these issues are when debating them now."

Elizabeth Bauer, in Forbes

[Opinion]

BlackRock's New ESG Priority May Be About Collecting More Fees

"BlackRock has been moving to redefine its identity from a firm focused on index investing to a firm that emphasizes ESG (environmental, social and corporate governance) investing. However, one organization argues that this move is less about doing something good for investors and more about enabling BlackRock to charge more in management fees."

Institute for Pension Fund Integrity [IPFI]

Executive Compensation
and Nonqualified Plans

An Answer to Local Taxation of Non-Qualified SERP Benefits in Ohio

"Ohio House Bill 166 ... clarifies the definitions of 'pension' and 'retirement benefit plan'. This prevents cities from defining such terms in their tax ordinances to require taxation of non-qualified pensions and retirement benefits. All pensions and benefits paid out of a retirement benefit plan are exempt from local taxes if the benefits meet [certain] criteria ... [W]hether paid by a qualified or non-qualified plan, if these criteria are met, the benefits are retirement plan benefits exempt from local taxes in Ohio."

Findley

Selected Discussions
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414(s) Safe Harbor Exclusion for HSA Contributions?

"Would an employee's HSA contributions withheld from paychecks be a safe harbor exclusion?"

BenefitsLink Message Boards

Can a CRD Be Directly Rolled Over to a Roth IRA?

"A qualifying participant wants to take a $100k CRD from their 401(k) plan and roll it over directly into their Roth IRA because the tax liability can be spread out over 3 years. Although this is not what the legislators had in mind when the CARES Act was drafted, I can't seem to find anything that specifically prohibits what essentially amounts to a Roth conversion. Is such a direct rollover legal? If not, could the $100k be paid to the participant and then rolled over into a Roth IRA, or is a Roth conversion only possible via a direct rollover?"

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BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2020 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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