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Retirement Plans Newsletter

December 13, 2021

2 New Job Opportunities 2 New Job Opportunities


[Official Guidance]

PBGC Regulatory Agenda, Fall 2021

Proposed Rules

  • Valuation Assumptions and Methods: Interest and Mortality Assumptions for Asset Allocation in Single-Employer Plans and Mass Withdrawal Liability Determination in Multiemployer Plans
  • Multiemployer Plan Guaranteed Benefits
  • Improvements to Rules on Recoupment of Benefit Overpayments
  • Penalties for Failure to Provide Certain Notices or Other Material Information
  • Actuarial Assumptions for Determining an Employer's Withdrawal Liability

Final Rules

  • Benefit Payments and Allocation of Assets
  • Examination and Copying of PBGC Records
  • Adjustment of Civil Penalties
  • Special Financial Assistance by PBGC

Also see PBGC Statement of Regulatory and Deregulatory Priorities (5 pages).  MORE >>

Pension Benefit Guaranty Corporation [PBGC]

[Guidance Overview]

Upcoming Deadline icon December 31 Reminders for Retirement Plan Sponsors

"Amendments implementing the 401(k) and 403(b) plan hardship distribution changes of the Bipartisan Budget Act of 2018 are the main amendments needed by December 31, 2021. This deadline applies for both calendar-year and fiscal-year plans. The amendments generally need to be retroactive to each provision's effective date.... Operational change in required minimum distribution tables ... CARES Act and SECURE Act amendments."  MORE >>


Late-Filed 5500? Boy, Are You in Trouble Now! Uh, Maybe Not!

"[M]any people who receive late notices for their form filings actually filed on time.... If you are a plan sponsor who relies on a service provider (such as a third-party administrator or TPA) to send in your Form 5500 to the government, do not assume that your TPA made an error.... Don't ignore the notice, even if the IRS is wrong."  MORE >>

Ferenczy Benefits Law Center

Preconditions for an ERISA Section 103(a)(3)(C) Audit Under SAS 136

"Statement on Auditing Standards (SAS) 136, [is] effective for audits of [ERISA] plan financial statements for periods ending on or after Dec. 15, 2021 ... While the new SAS does not affect the accounting or financial statement reporting for plans, it will affect every other aspect of the audit, including engagement acceptance, the audit opinion, audit procedures, and required communications at the conclusion of the audit."  MORE >>

Financial Executives International Daily

Disaster Retirement Savings Act Introduced

"The bipartisan Disaster Retirement Savings Act [HR 6241] ... would help survivors of natural disasters by allowing them to withdraw funds from retirement accounts to cover the unexpected and emergency costs related to disasters without incurring fees or penalties. The tax relief would be triggered automatically if the president issues a federal disaster declaration."  MORE >>

National Tax-Deferred Savings Association [NTSA]

Does the 4% Guideline Rest on a Flawed Assumption?

"[R]ecent research on safe retirement spending rates featured a flashy takeaway: Retirees who are using a fixed real withdrawal system on a balanced portfolio should start with withdrawals in the low 3% range, rather than the standard 4% guidance for starting withdrawals.... The question is, does a system of fixed real withdrawals, which we used to underpin our baseline conclusions about sustainable in-retirement spending, reflect how people actually spend in retirement? Not necessarily."  MORE >>


Benefits in General

[Official Guidance]

DOL Regulatory Agenda, Fall 2021, Including Employee Benefit Items

Prerule stage

  • Improved Fee Disclosure for Welfare Plans
  • Improving Participant Engagement and Effectiveness of ERISA Retirement Plan Disclosures
  • Pooled Employer Plans

Proposed Rules (EBSA)

  • Implement SECURE Act and Related Revisions to Employee Benefit Plan Annual Reporting on the Form 5500
  • Improvement of the Form 5500 Series and Implementing Related Regulations Under ERISA
  • Definition of the Term "Fiduciary"
  • Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights
  • Prohibited Transaction Exemption Procedures
  • Provider Nondiscrimination Requirements for Group Health Plans and Health Insurance Issuers in the Group and Individual Markets
  • Mental Health Parity and Addiction Equity Act and the Consolidated Appropriations Act, 2021
  • Short-Term Limited Duration Insurance; Update

Final Rules (EBSA)

  • Pension Benefit Statements -- Lifetime Income Illustrations
  • Adoption of Amended and Restated Voluntary Fiduciary Correction Program
  • Requirements Related to Surprise Billing, Part 1
  • Requirements Related to Surprise Billing, Part 2
  • Amendment of Abandoned Plan Program
  • Requirements Related to Prescription Drug Reporting
  • Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement


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

[Official Guidance]

IRS Regulatory Agenda, Fall 2021, Including Employee Benefit Items

Numerous employee benefits items, some of which are:

Proposed Rules

  • Definition of Church Plan
  • Application of Nondiscrimination Requirements, Backloading Limitations, Certain Plan Termination Rules, Benefit Limitations, and Top Heavy Rules to Statutory Hybrid Plans
  • MEPs and the Unified Plan Rule
  • Determination of Line of Business for Purposes of No-Additional-Cost Service and Qualified Employee Discount Fringe Benefits
  • SECURE Act Modifications to Certain Rules Governing 401(k) Plans
  • Guidance on 401(a)(9) Required Minimum Distributions
  • Requirements Related to Surprise Billing, Part 2
  • Provider Nondiscrimination Requirements for Group Health Plans and Health Insurance Issuers in the Group and Individual Markets
  • Enrolled Agent Special Enrollment Examination User Fee Update and Enrolled Retirement Plan Agent Special Enrollment Examination User Fee Removal
  • Information Reporting of Health Insurance Coverage and Other Issues Under Sections 6055 and 6056
  • Mortality Tables for Determining Present Value Under Defined Benefit Pension Plans
  • Guidance Under Section 36B Regarding the Premium Tax Credit
  • User Fees Relating to Enrolled Agents and Enrolled Retirement Plan Agents
  • User Fees Relating to Enrolled Actuaries
  • Prescription Drug and Health Care Spending
  • Short-Term Limited Duration Insurance; Update
  • Mental Health Parity and Addiction Equity Act and the Consolidated Appropriations Act, 2021

Final Rules

  • Update to Minimum Present Value Requirements for Defined Benefit Plan Distributions
  • Application of Normal Retirement Age Regulations to Governmental Plans
  • Nondiscrimination Relief for Closed Defined Benefit Plans
  • Minimum Value of Eligible Employer-Sponsored Plans
  • Withholding on Certain Retirement Plan Distributions Under Section 3405(a) and 3405(b)
  • Definition of Medical Care
  • Requirements Related to Surprise Billing, Part 1
  • Requirements Related to Surprise Billing, Part 1 (Temporary Regulation)
  • Requirements Related to Surprise Billing, Part 2 (Temporary Regulation)
  • Prescription Drug and Health Care Spending (Temporary Regulation)


Internal Revenue Service [IRS], U.S. Department of the Treasury

Responding to ERISA Claims: Why You Should Bring Rule 52 Motions Instead of Rule 56 Summary Judgment Motions

"[A] new case highlights why Rule 52 motions may be the preferred motion to efficiently resolve ERISA benefit claims.... In most circuits, with cases involving de novo review, the safer practice is to bring Rule 52 motions for judgment, which allows the court to assess the weight and credibility of the evidence and requires the court to issue findings of fact and conclusions of law." [Avenoso v. Reliance Standard Life Ins. Co., No. 21-1772 (8th Cir. Nov. 30, 2021)]  MORE >>

Lane Powell PC

Employee Benefits Jobs

View job as Retirement Plan Relationship Manager
for ERISA Services, Inc. Retirement Plan Relationship Manager

ERISA Services, Inc.

Remote / AL / GA

View job as Retirement Plan Consultant (RPC)
for Qualified Plan Consultants, LLC (QPC) Retirement Plan Consultant (RPC)

Qualified Plan Consultants, LLC (QPC)


Selected New Discussions

'Why Isn't My Loan Balance Still Invested?'

"This is an actual question I received from a client. I tried to explain that when a loan is taken, the funds are removed from the account and given in cash, so they cannot be invested in the plan because they aren't in the plan. They get reinvested according to the participant's allocation elections as they are repaid. He's asking for legal authority on the point. It's such a basic concept that I can't find any. Anyone have another way to explain it?"

BenefitsLink Message Boards

Passing an Enrolled Actuary Exam Doesn't Count Towards ERPA Renewal?

"So I just heard from the enrollment folks at the IRS that they will not grant any CE towards my ERPA renewal, for studying for (and passing) at least one Enrolled Actuary exam during my 2019-2021 enrollment window. Guess I've got to download some recorded sessions this month. How is this not legitimate continuing education?"

BenefitsLink Message Boards

Top Hat Plan Possibly Included Too Many Non-Top Hat Employees

"Employer established non-qualified deferred compensation plan to permit deferrals of substantial bonus amounts for a wide range of employees. All amounts in the plan were fully vested at all times. After several years, a former executive with various axes to grind surfaces and says the Top Hat plan doesn't qualify as a Top Hat plan within the meaning of ERISA because it includes non-management and non-HCEs. Does the company have any corrective options? Could it somehow kick out the non-top hat folks and deal with them outside the plan, and continue to operate the plan, even if it has been operating without complying with ERISA retirement plan protections that arguably should have been in place?"

BenefitsLink Message Boards

Webcasts and Conferences
(Retirement Plans / Executive Compensation)

403(b) Cycle 2: Restating Soon to a Document Near You!

January 11, 2022 WEBCAST

Last Issue's Most Popular Items

The Supreme Court Considers Defined Contribution Plans

John Rekenthaler, via Morningstar

The Not So SIMPLE Life: What to Do When You Get Too Big for a SIMPLE

Ferenczy Benefits Law Center

What Every Plan Sponsor Should Know About Collective Investment Trusts


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

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