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Retirement Plans Newsletter

December 1, 2021

4 New Job Opportunities 4 New Job Opportunities


[Guidance Overview]

Best Interest Standard of Care for Advisors, Part 75: Mitigation of Conflicts

"There is a good chance that the DOL (and the SEC) will, in the next year or two, focus their examinations on the mitigation practices of broker-dealers, investment advisers and other financial institutions. And their views about mitigation may differ from the private sector's -- in the sense that the regulators may expect more than is anticipated."  MORE >>

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DOL Temporarily Halts Enforcement of Compliance with PTE and ERISA Fiduciary Obligations for Rollover Advice

"In [FAB 2021-02], the DOL announced that ... it will not enforce the requirement that retirement investors be provided with the specific reasons why a rollover recommendation is in their best interest until July 1, 2022.... The DOL will begin enforcing all of PTE's other requirements on February 1, 2022."  MORE >>

Faegre Drinker

How to Make Annuities Work with 401(k)s

"The SECURE Act has made embedding annuities in 401(k)s more appealing to employees and safer for employers. However, there are steps an employer must take to ensure compliance with the safe harbor provision."  MORE >>

Employee Benefits Report

Potential Effects of the COVID-19 Pandemic and Other Mortality Trends on Corporate Defined Benefit Plans

"In ordinary times, mortality is incrementally adjusted according to new data and observed trends. However, the COVID-19 pandemic has caused a sudden increase in mortality, with evidence suggesting the pandemic may have exacerbated some mortality trends and reversed others.... This paper explores some potential effects of the pandemic on mortality trends and discusses considerations for accounting disclosures, funding valuations, and de-risking activities."  MORE >>


Audit Clues About 403(b) Plans Provided by Form W-2s

"When auditing a 403(b) plan, the IRS auditor may request a sampling of W-2s to verify that only elective deferrals have been reported in Box 12. The W-2s also enable an IRS examiner to assess whether an employer's payroll system contribution reporting aligns with the human resources records. As the IRS 403(b) Examination Guidelines note, 'Discrepancies should be explained, and if significant, investigated further.' "  MORE >>



Comments on Proposed DOL Regs on ESG Investing, Prudence and Loyalty

"The fiduciary duty of loyalty requires exclusive consideration of participants' welfare -- even in the face of so-called 'ties.'Under the proposed regulations, fiduciaries desiring to pursue otherwise proscribed collateral benefits will, deliberately or inadvertently, be encouraged to declare ties to free themselves from the duty of loyalty and its prohibition on the pursuit of third party benefits. Contrary to the teaching of the proposed regulations, the exacting duty of loyalty is not suspended in the presence of 'ties.' "  MORE >>

Prof. Edward A. Zelinsky, via SSRN

Benefits in General

Eighth Circuit: Ordinary Summary Judgment Procedures Apply to Review of ERISA Benefit Claims

"The Eighth Circuit ... held that ordinary summary-judgment procedures under FRCP 56 apply in ERISA benefit cases where the administrator lacked discretionary authority. Parties in an ERISA case that want the district court to exercise its factfinding function under FRCP 39(b) and 52(a)(1) to decide the case on the administrative record should request that the district court do that." [Avenoso v. Reliance Standard Life Ins. Co., No. 21-1772 (8th Cir. Nov. 30, 2021)]  MORE >>

Roberts Disability Law

Executive Compensation and Nonqualified Plans

[Guidance Overview]

How Governmental 457(b) Plans Differ from Top Hat 457(b) Plans

"Governmental 457(b) plan funds must be held apart from the employer's assets in a trust fund. By contrast, top hat plan funds must remain property of the employer. So, even though top hat assets can't be reached by the employee's creditors, they can be reached by the employer's creditors at all times. This makes top hat plans riskier than governmental plans. That level of risk is why Congress limited eligibility to highly-paid employees who can better bear that risk."  MORE >>

Slott Report

Employee Benefits Jobs

View job as Retirement Plan Consultant
for DWC - The 401(k) Experts Retirement Plan Consultant

DWC - The 401(k) Experts


View job as Retirement Plan Consultant
for DWC - The 401(k) Experts

View job as Assistant General Counsel (Benefits)
for UMWA Health and Retirement Funds Assistant General Counsel (Benefits)

UMWA Health and Retirement Funds

Washington DC

View job as ERISA Consultant
for Retirement Learning Center ERISA Consultant

Retirement Learning Center

Remote / Brainerd MN

View job as Employee Benefits Attorney
for Lathrop GPM Employee Benefits Attorney

Lathrop GPM

CA / CO / DC / IL / KS / MA / MN / MO / TX

Selected New Discussions

Death Benefits in 457(b) Top Hat Plan [NEEDS ANSWER]

"Participant started installment payments in a 457(b) top hat plan (tax exempt employer), and then the participant died. The beneficiary is asking about options. Does the beneficiary need to continue the installments (assuming they meet RMD rules)? Or can they choose to take a lump sum distribution? My concern is the language in Treas. Reg. 1.457-7(c)(2)(iv), because payments under the participant's election have started."

BenefitsLink Message Boards

Single Member Plan Terminated, Liquidated on Nov. 23, 2021 -- File 2020 Form 5500-EZ Now?

"A client closed down her single member plan and its final liquidation occurred on 11/23. The balance is $0. My next step is to prepare a final form 5500-EZ. Do I use the 2020 form and change the year-end to be 11/23/2021?"

BenefitsLink Message Boards

Exceptional Usefulness and Quality icon Order Transfers IRA Pursuant to a Divorce -- Early Distribution Penalty Applies?

"H and W divorce. Both are under 59-1/2. H is awarded $11,000 from W's IRA. He does not intend to roll it over. An Order Transferring IRA Incident to Divorce (similar to a QDRO) is drafted, signed by H and W and approved by the court.

If this were a distribution from a qualified plan under a QDRO, H would include the distribution in his income but would not be subject to the 10% early withdrawal penalty. Question: Is H subject to the penalty tax here?"

BenefitsLink Message Boards

Press Releases

Employee Benefits Attorney Kimberly Steefel Joins Ballard Spahr in NYC Office

Ballard Spahr LLP

Executive Compensation and Employee Benefits Partner Meredith O’Leary Joins King & Spalding in Washington, D.C.

King & Spalding

Webcasts and Conferences
(Retirement Plans / Executive Compensation)

Current Developments (2021)



IRS Revises Procedures for Interim Amendments and Pre-Approved 403(b) Plans



Executive Compensation Academy: Thoughts on Maximizing the Deductibility of Compensatory Arrangements

December 9, 2021 WEBCAST

Hunton Andrews Kurth

Last Issue's Most Popular Items

Text of IRS Notice 2021-64: 2021 Required Amendments List for Individually Designed Qualified and Section 403(b) Plans (PDF)

Internal Revenue Service [IRS]

In Remembrance of Theodore R. Groom

Groom Law Group

Billions of Lost Retirement Dollars Are Getting Harder to Find


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

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