Retirement Plans Newsletter

August 4, 2020

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Newly Posted
Webcasts, Conferences

Employer Securities, Employer Real Property and Other Employer Assets
August 6, 2020 WEBCAST
Groom Law Group

The Pendulum Swings: Retooled Fiduciary Guidelines
August 13, 2020 WEBCAST
ERISApedia.com

NAPA 401(k) Cyber Summit
September 9, 2020 WEBCAST
National Association of Plan Advisors [NAPA]

IRA Academy 2020: Retirement Plan Masterclass for the Pros
September 14, 2020 WEBCAST
The Entrust Group

IRA Essentials Workshop
September 23, 2020 WEBCAST
Nebraska Bankers Association

IRA Advanced Workshop
September 24, 2020 WEBCAST
Nebraska Bankers Association

Executive Compensation for Tax Exempt Organizations: New 4960 Regs, Covered Employees, Donated Services, Aggregation
September 30, 2020 WEBCAST
Strafford

►See All 130 Upcoming Webcasts and Conferences

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[Guidance Overview]

DOL Reinstates Five-Part Test for Fiduciary Investment Advice

"Advice to rollover assets from a plan to an IRA can constitute investment advice and cause the person or institution providing investment advice to be an investment advice fiduciary and therefore, subject to the conflict of interest prohibitions. Notably, once plan money is invested in an IRA, it is then subject only to the Code's prohibited transaction provisions. While this is not the broad authority that the DOL originally sought over IRAs, the refreshed interpretation causes some rollover solicitations to be subject to the applicable fiduciary and prohibited transaction provisions of ERISA and/or the Code."

Frost Brown Todd LLC

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[Guidance Overview]

What Are the Partial Termination Rules for 403(b) Plans?

"Technically, neither the Tax Code or the 403(b) tax regulations require that non-vested employer contributions be vested on plan termination. ERISA's vesting rules ... do not require any plan, whether it be 403(b) or 401(k), to vest non-vested employer contributions on plan termination.... [I]f you have mistakenly applied that 'partial termination' vesting rule to a 403(b) plan you may have an operational error. Check your plan document, it may have a partial termination rule."

Business of Benefits

The Top-Heavy Test: Easy to Fail, Easy to Fix

"IRC Section 416(g) fine-tunes the rules for determining whether a plan is top-heavy. Not all account balances are included in the plan, and some funds that are distributed must be added back to determine the top-heavy fraction for a time."

Ferenczy Benefits Law Center

Employee Savings Goals and Stress Levels on the Rise

"Forty-one percent of those responding to the survey have made changes to their 401(k) as a direct result of COVID-19 and its economic impact.... Of the 41% who acted, 14% rebalanced their portfolio and 12% increased their contribution rate. These individuals also indicated that they either increased (8%) or decreased (7%) their exposure to stock funds/equity."

Charles Schwab

DOL Provides Guidance on ESG Investing

"[T]he DOL in its proposed rule intends to 'update' and 'clarify' its longstanding investment duties' regulation. According to the DOL announcement, 'the proposed rule is intended to provide clear regulatory guideposts for plan fiduciaries in light of recent trends involving ESG investing.' ... There are five core additions to the DOL's existing 1979 regulation that are being proposed[.]"

Foley & Lardner LLP

[Sponsored]

SPARK/DCIIA Summer Policy Series

Live virtual event, every Wednesday, July 15 to August 19. Domestic and global topics; general and breakout sessions (live broadcast), exhibitor hall and virtual networking happy hours. Replay on demand. Free to SPARK and DCIIA members. Learn more! Learn more

Sponsored by SPARK and DCIIA


Should a 401(k) Fiduciary Treat ESG as an Asset Class, a Stock Valuation Factor, or Neither?

"Defining ESG more precisely is ... difficult ... However, in general terms, it's very clear what ESG is not. It is not an asset class.... Is ESG simply just another component used to determine the proper valuation of a stock? If so, how might it find its way as just another data point for a stock analyst's spreadsheet'."

Fiduciary News; free registration required

Put Your Best Fund Forward: Research-Backed Strategies to Improve Retirement Plans (PDF)

70 presentation slides. Topics: [1] Core menu size and participant investment behaviors; [2] Fund replacements in defined contribution plans; [3] Made to stick: What drives default investment acceptance in defined contribution plans; [4] Mixed target-date fund investors; and [5] Participant trading activity during Q1 2020.

fi360

Investment Advisers and Broker Dealers: Thought You Finished Your Form CRS? Think Again

"On July 27, 2020, the Staff Standards of Conduct Implementation Committee ... reiterated the purpose of the form and stated that the Committee has been reviewing those submitted. While the Forms CRS under review 'generally reflect an effort to meet the content and format requirements,' others lack required disclosures, and 'could be clearer or otherwise improved.' ... [T]he Committee states it will provide feedback to firms and host a roundtable later this year to share information about their review[.]"

Cohen & Buckmann, P.C.

Editor's PickStates Pull Back on Pension Payments as Virus Ravages Revenue

"Colorado eliminated a $225 million supplemental payment to the state's Public Employees' Retirement System, backing away from a 2018 plan to bolster the pension, which is about 60% funded after suffering from years of inadequate government contributions. South Carolina suspended a statutorily scheduled 1% employer contribution increase for the fiscal year beginning July 1. And New Jersey, which has one of the nation's worst-funded pensions, has deferred a $950 million pension payment until September and Governor Phil Murphy's plan to increase contributions 13% to $4.6 billion is in question."

Advisor Perspectives

Beleaguered Public Pension Funds Make Record Gains in Second Quarter

"Public pension funds set a 22-year performance record in the second quarter, recovering some but not all of their losses from the first quarter. Double-digit stock gains pushed pension returns to a median 11.1% for the second quarter ... Even with the rebound, median annual returns for the public pensions whose fiscal years ended June 30 were 3.2%, far short of the funds' long-term investment-return target of around 7%."

The Wall Street Journal; subscription may be required

[Opinion]

AIG Settlement Shows K-12 403(b) Not A-OK

"On July 28, 2020 the SEC announced that AIG/Valic Financial Advisors (VFA) had agreed to a multi-million dollar settlement over the firm's practices in the Florida K-12 403(b) market.... It is estimated the firm reaped upwards of $30 million through the practices in question.... Unfortunately, this latest revelation is but a few grains of sand on a very dirty beach. The K-12 403(b) is still not A-okay."

403bwise

Benefits in General

Tenth Circuit Decision Puts New Emphasis on Including Discretionary Authority Language in Summary Plan Descriptions

"[It] is now Tenth Circuit law that, in order to obtain deferential review, a plan administrator must either [1] furnish participants its plan documents -- even if the participant has not requested them -- or [2] ensure that its summary plan description explicitly states that the plan administrator (or relevant fiduciary) has discretionary authority to determine benefits eligibility and construe the plan's terms." [Lyn M. v. Premera Blue Cross, No. 18-4098 (10th Cir. Jul. 24, 2020)]

Mayer Brown

Selected Discussions
on the BenefitsLink Message Boards

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Safe Harbor Plan Merges Into Non-Safe Harbor Plan Mid-Year -- SH Plan Considered to Be 'Terminating'?

"If a Safe Harbor plan (Plan B) merges into a non-safe harbor plan (Plan A) mid-year due to an acquisition, does Plan B receive the benefit of a 'terminating' plan under the safe harbor regs from the first day of the plan year through the merger? Then, as of the merger date, Plan A tests the plan with the full year information for the employees of Plan A and then, from the date of the merger through the end of the plan year, for employees of Plan B? I know there is no guidance on this, but how are others handling?"

BenefitsLink Message Boards

Mechanics of Updating Plan Document Involving an Asset Custodian

"I'm looking at a custodian that offers model plan documents for their 'individual 401(k) accounts.' They offer traditional and Roth accounts. Because the model documents are a little restrictive in their options/elections, we're looking at bringing in more customized documents via a TPA. If/when we might implement a new set of plan documents, is there any reason (other than the custodian desiring it) that the custodian not being informed of this might be a problem in terms of plan compliance or tax compliance?"

BenefitsLink Message Boards

Looking for Sample Interim Distribution Policy for Pooled DC Plan

"I'm looking for sample policy language that would guide trustees in conducting interim valuations for a pooled plan that has been annually valued in the past. Some TPAs have advocated for not adopting a policy and instead leaving interim valuations up to the discretion of the trustees via broad interim valuation plan language. If no one has policy language, has anyone seen any triggers of interim valuations that were helpful?"

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Press Releases

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Executive Compensation Issues Emerging from the COVID-19 Crisis
Milliman and White & Case, via Benefits Law Journal

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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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