Retirement Plans Newsletter

July 15, 2020

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View COVID-19 News and Resources

[Guidance Overview]

IRS Issues Additional CARES Act Guidance for Retirement Plan Administrators and Qualified Individuals

"The [IRS] recently released two notices that provide additional guidance for retirement plan administrators and qualified individuals about the special distribution, plan loan, and required minimum distribution (RMD) provisions under the [CARES Act]. IRS Notice 2020-50 is focused primarily on 'coronavirus-related distributions' (CRDs) and plan loans. IRS Notice 2020-51 provides guidance on the waiver of RMDs."

Ogletree Deakins

[Guidance Overview]

DOL: Rollover Recommendations May Constitute Advice; Proposes Prohibited Transaction Exemption

"The DOL appears to have abandoned its efforts over the last decade to reframe the test for determining who is an investment advice fiduciary and has instead reaffirmed the five-part test.... Unresolved by the guidance are the types of relationships involving an adviser providing 'financial advice' on a regular basis.... In providing broad, principles-based relief for financial advisers' compensation arrangements, the proposed exemption differs from the DOL's historic approach to granting prohibited transaction exemptions, which generally provided relief for discrete, identified transactions."

Shearman & Sterling LLP

[Guidance Overview]

Must I Complete the Upcoming Mandatory Plan Document Restatement Before Terminating My Plan?

"Between restatement windows, good faith amendments are typically used to update plan language for interim legislative and regulatory changes.... [T]hese amendments must usually be adopted within a year or two following the law change.... While a full plan document restatement is typically more expensive than adoption of good faith amendments, a full restatement allows you to rely on the IRS approval of that language.... Regardless of the method chosen, full restatement or good faith amendment, it is absolutely critical the plan document is updated by the time you terminate your plan."

DWC

Summer To-Do List: Determination Letter Filing for Cash Balance Plans and Pension Equity Plans

"The IRS deadline to file for a determination letter for an individually designed statutory hybrid plan is August 31, 2020.... This deadline has not been extended under any recent IRS pandemic-related guidance.... Notice to interested parties of the application for a determination letter ... [needs] to be sent out ... no later than August 21, 2020, in order to submit an application by the August 31, 2020, deadline."

Faegre Drinker

Recent Cybersecurity Decision Highlights Potential Claims Against Plan Sponsors

"A key difference from the facts stated in other cybertheft lawsuits is that the participant here was a co-trustee of the plan. He was also a principal in the firm that both sponsored the plan and was listed in the plan document as the plan administrator." [Leventhal v. MandMarblestone Group, LLC, No. 18-2727 (E.D. Penn. May 27, 2020)]

Cohen & Buckmann, P.C.

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Editor's Pick Offering CARES Act Distributions to Defined Benefit Plan Participants

"Even if a plan already offers a lump sum, the employer still might want to designate payments (up to $100,000) to qualified individuals as CRDs so participants can take advantage of the reduced withholding.... DB plans not offering CRDs don't need to change their tax withholding and reporting for participants claiming CRD treatment for a plan distribution.... Employers whose plans don't already offer lump sums will need to amend their plans to provide for the new CRD option."

Mercer

McClatchy to Transfer Pension Fund to PBGC Under Chapter 11 Agreement

"The agreement calls for the PBGC to assume The McClatchy Co. Retirement Plan, and for McClatchy to transfer an estimated $1.4 billion in pension assets to the PBGC.... That plan, which was closed to new participants in 2009, has ... more than 24,000 participants. As of March 31, 2019, it was underfunded by $535 million."

Pensions & Investments

[Opinion]

With the DOL's New Rule 95% Likely to Get Finalized, RIAs Need to Be Very Wary

"Right now, most RIAs recommend IRA rollovers without having to jump through a lot of hoops, but DOL's 'exemption' makes a federal case out of suggesting the move away from the protection of the employer's plan.... The impact of this proposal on investment advisers (as opposed to brokers) cannot be overstated."

RIABiz

[Opinion]

Letter from Ranking Member of Senate HELP Committee to EBSA Requesting Hearing on Proposed PTE (PDF)

"Given the significance of this proposed rule and the fact the proposed PTE relies heavily on the [SEC's] Regulation Best Interest, the Department, as it has in the past, should formally engage and seek input from the public.... A public hearing is critical to a thorough understanding in light of the reliance on another federal agency's regulation, as well as the numerous proposals and changes the Department has made over the past month in delineating ERISA's fiduciary duties. I also reiterate my previous request that the Department extend the 30-day comment period by an additional 60 days as the current comment period is inadequate to provide thoughtful analysis."

Sen. Patty Murray (D-Wash.), Committee on Health, Education, Labor and Pensions, U.S. Senate

Benefits in General

[Guidance Overview]

Editor's Pick Summary of CARES Act and FFCRA Tax Credit and Payroll Tax Relief (PDF)

15 pages; current as of Jul. 6, 2020. "This chart is a high-level overview of the various payroll and tax credit programs under the CARES Act and FFRCA [including the payroll tax credit for Emergency Sick and Family Leave]."

Troutman Sanders

DOL Announces Appointments to ERISA Advisory Council

"The appointees and the expertise they represent are:

  • Employee Organizations: John R. Harney is a partner at O'Donoghue & O'Donoghue LLP....
  • Employers: Glenn Butash is Managing Counsel, U.S. Compensation and Benefits, at Nokia Corp....
  • General Public: Peter Wiedenbeck is the Joseph H. Zumbalen Professor of the Law of Property at the Washington University School of Law....
  • Accounting: James Haubrock is a shareholder with Clark Schaefer Hackett....
  • Insurance: Lisa C. Allen is a Senior Compliance Consultant for the Altera Group....

Butash has been reappointed and will serve as the chair of the 2020 ERISA Council. Current member David Kritz will serve as the Council's vice chair."

Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Selected Discussions
on the BenefitsLink Message Boards

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Incarcerated Beneficiaries

"Participant died. Two of her beneficiaries are in jail. Does the state in which the beneficiary is incarcerated dictate how the money is handled?"

BenefitsLink Message Boards

SIMPLE IRA Program Had More Than 100 Employees

"A new client to our firm is in receipt of an IRS compliance check regarding their SIMPLE IRA for the year ended 12/31/2017. The compliance check is saying that the client has sponsored a SIMPLE IRA and, for the last 2 years, reported more than 100 W-2's for employees with wages of $5,000 or more for at least two consecutive years. The client has now informed us that this a true statement for years 2015 through 2019. No union employees in the company. The compliance check asks [1] did you sponsor a SIMPLE IRA (yes), [2] did you exceed the 100 employee limitation (yes) and [3] did you exceed the two year grace period (yes). What ramifications might the company face from the IRS for sponsoring and maintaining a SIMPLE IRA in violation of the requirements?"

BenefitsLink Message Boards

20% Still Required to Be Withheld from Distributions?

"We have a terminated 100% vested participant (under 59-1/2) who wants to take all of her money out of the plan as a cash distribution. The plan has not adopted any of the CARES Act relief measures. The participant is claiming that 20% is not required to be withheld since she is claiming she was impacted by COVID-19. But this is a distribution due to termination of employment, not an ISW. Is she correct?"

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Press Releases

Most Popular Items in the Previous Issue

IRS Issues Operational Compliance List for 2020
Thomson Reuters Practical Law

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

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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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