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Retirement Plans Newsletter

January 25, 2023

2 New Job Opportunities 2 New Job Opportunities


[Official Guidance]

Text of PBGC Final Regs: Special Financial Assistance Withdrawal Liability Condition Exception

20 pages. "PBGC is adding Section 4262.16(g)(3), which provides a process for a plan sponsor to request approval from PBGC for an exception from the withdrawal liability conditions in Section 4262.16(g)(1) and [2] under specific circumstances The exception process added by this final rule is separate from the SFA application process. A request for an exception from the withdrawal liability conditions may be submitted to PBGC either before the plan's initial application for SFA is filed or before a revised application is filed. A plan sponsor requesting an exception is encouraged to have a pre-submission consultation with PBGC."  MORE >>

Pension Benefit Guaranty Corporation [PBGC]

[Official Guidance]

Text of 2022 Instructions for IRS Form CT-1, Employer's Annual Railroad Retirement Tax Return (PDF)

20 pages. "What's New: [1] Changes to tax rates and compensation bases.... [2] The COVID-19 related credit for qualified sick and family leave compensation is limited to leave taken after March 31, 2020, and before October 1, 2021.... [3] The COVID-19 related employee retention credit has expired.... [4] Credit for COBRA premium assistance payments is limited to periods of coverage beginning on or after April 1, 2021, through periods of coverage beginning on or before September 30, 2021.... [5] Advance payment of COVID-19 credits ended.... [6] Notice 2021-65 effect on deposit schedule." [Also available: 2022 IRS Form CT-1]  MORE >>

Internal Revenue Service [IRS]

[Guidance Overview]

Upcoming Deadline icon DOL Final Rule on ESG Factors to Take Effect February 1, 2023 (PDF)

10 pages. "Although the Final Rule removes the requirement to document ESG considerations, fiduciaries would be well-advised to document their processes and reasoning for determining that consideration of ESG factors were relevant to the risk-return analysis in the event these decisions are later challenged."  MORE >>

Latham & Watkins

[Guidance Overview]

Pension-Linked Emergency Savings Accounts Available in 2024

"The [pension-linked emergency savings account (PLESA)] provision in SECURE 2.0: [1] breaks away from the traditional notions of when funds can be distributed from retirement plans  ... [2] borrows from and builds on features from Roth contributions, non-Roth after-tax employee contributions ... and savings accounts; and [3] requires plan sponsors to make matching contributions on participant PLESA contributions if the employer otherwise makes matching contributions to the plan."  MORE >>

Verrill Dana LLP

[Guidance Overview]

SECURE 2.0: Extension of RMD Start Ages

"Someone who turns 73 in 2032, and therefore will have an RMD start age of 73, will also turn 74 in 2033 and will therefore have an RMD start age of 75. So, which is it ... 73 or 75? Unfortunately, the Act doesn't answer that question."  MORE >>

[Guidance Overview]

SECURE 2.0 Increases Age for Required Minimum Distributions

"Although the SECURE 2.0 Act raises the statutory minimum distribution age, retirement plans may incorporate a minimum distribution age that is earlier than the statutory requirement.... [T]he tax treatment of a distribution made at the earlier plan deadline may be different than if the distribution is made at the later statutory deadline, including eligibility of the distribution for rollover."  MORE >>

Haynes and Boone, LLP

[Guidance Overview]

SECURE 2.0 Creates New Opportunities for IRAs, SEPs and SIMPLE IRAS

"Many of the general changes ... apply to individual retirement accounts (IRAs) as well as to other types of retirement plans. Other new options apply to SEP-IRAs and SIMPLE IRAs ... [including] the ability to match participant loan repayments under SIMPLE IRAs and the ability to establish a SEP for domestic employees. Additional changes that enhance the benefits of participation and permit increased contributions are specific to IRAs, SEP-IRAs and SIMPLE IRAs."  MORE >>

Cohen & Buckmann, P.C.

[Guidance Overview]

SECURE 2.0: Contribution-Related Provisions

"[1] Plan amendment deadline.... [2] Automatic enrollment and automatic escalation.... [3] Super-duper catch-up contributions.... [4] Treatment of student loan payments as elective deferrals for purposes of matching contributions.... [5] Small immediate financial incentives for contributing to a plan.... [6] Emergency savings to the rescue.... [7] Long-term part-time workers: three years to two years.... [8] Amendments to increase benefit accruals in 401(k) plan for previous plan year allowed until employer's tax return due date.... [9] Automatic contribution failures: goodbye sunset, hello permanence.... [10] 'Rothification' of matching, nonelective, and catch-up contributions."  MORE >>

Ogletree Deakins

Exceptional Usefulness and Quality icon New Questions Arise Concerning the Extent of Liability for Plan and Service Provider Following 'Heinous' Plan Participant Identity Theft

"A recent opinion denying a third party administrator and plan fiduciary's motion to dismiss, in the Southern District of New York not only widened the scope of liability for potential ERISA defendants in actions seeking to recover ERISA fraudulent distributions, but it also made new legal determinations that, if followed by other courts, will have an impact on future suits made by plan participants seeking to recover lost retirement plan money."  [Disberry v. Employee Relations Committee of the Colgate-Palmolive Company, No. (S.D.N.Y. Dec. 16, 2022)]   MORE >>

The Wagner Law Group

New York District Court Rejects ERISA Excessive Fee Claims as Insufficient

"The court's decision adds to the growing number of Second Circuit district courts relying on out-of-circuit appellate decisions to dismiss excessive recordkeeping and investment management fee claims for failure to plead proper benchmarks against which to measure fees. It also lends support to a standing argument advocated by the defense bar that, if it were to gain more traction, could substantially reduce the financial exposure in similar lawsuits." [Singh v. Deloitte LLP, No. 21-8458 (S.D.N.Y. Jan. 13, 2023)]  MORE >>


Update in ERISA Litigation Involving Breaches of Fiduciary Duty Claims

"[C]ourts are recognizing the different purposes and glidepaths of actively managed and passively managed funds, and that the long-term nature of 401(k) investing means both types of funds can (or even should) be offered as a prudent response to customer demand.... Second, courts are viewing with more skepticism imprudent recordkeeping fee claims based upon nothing more than a comparison to the market average.... Finally, it appears that courts are willing to recognize claims of imprudence sufficient to survive a Rule 12(b)(6) challenge where the complaint includes an allegation that the plan continued to offer the retail share class of a fund when the institutional share class was available."  MORE >>


Benefits in General

[Official Guidance]

IRS Disaster Relief Notice CA-2023-02, for Victims of Severe Winter Storms, Flooding, Landslides, and Mudslides in California

"Victims of severe winter storms, flooding, landslides, and mudslides beginning December 27, 2022, now have until May 15, 2023, to file various individual and business tax returns and make tax payments ... [I]ndividuals and households affected by severe winter storms, flooding, landslides, and mudslides that reside or have a business in Calaveras, Merced, Monterey, Sacramento, San Joaquin, San Luis Obispo, Santa Barbara, and Santa Cruz counties qualify for tax relief."  MORE >>

Internal Revenue Service [IRS]

Employee Benefits Jobs

View job as Retirement Plan Consultant
            for Ubiquity Retirement + Savings

Retirement Plan Consultant

Ubiquity Retirement + Savings


View job as Retirement Plan Consultant for Ubiquity Retirement + Savings

View job as Administrator
            for Pension Benefits Unlimited, Inc.


Pension Benefits Unlimited, Inc.

Remote / Irvine CA

Selected New Discussions

$2,586 Per Day!

"ERISA Section 502(c)(2)'s civil penalty for a failure to file an annual report is $2,586 per day. 88 Fed. Reg. 2210, 2219 (Jan. 13, 2023). If a plan's administrator is off by one year and three weeks, that's about $1 million."

BenefitsLink Message Boards

DOL VFCP Marketing Letter

"Client got a letter from DOL about late deposits. The old version made it clear that no response was required. This has a little more of the 'respond or else we're coming for you' interpretation. Has anyone else gotten this letter? This is the first one we have received. If this is the new version of the old approach it would be tempting to use the same solution (not respond). Curious to know if this is just a new template to get a higher response rate or they are really coming after clients who do not respond."

BenefitsLink Message Boards

Interest Rates for Cash Balance Plan

"Good afternoon! We took over a Cash Balance Plan and for '21 it appears they were using these interest rates (they used the corridors under BBA): However, I see that this table hasn't been updated for Plan Years Beginning in 2022. Does anyone know when these will be updated, or what can be used instead?"

BenefitsLink Message Boards

Press Releases

The ERISA Industry Committee Outlines Objectives and Ongoing Pursuits to Protect and Enhance Employee Benefits

ERIC [ERISA Industry Committee]

Vizient Forms Strategic Partnership with MDsave to Power Its National Direct-to-Employer Surgical-Bundle Solution


Webcasts and Conferences
(Retirement Plans / Executive Compensation)

ERISA Litigation 2022 Retrospective and Anticipated 2023 Developments 2023


Seyfarth Shaw LLP

DOL Priorities in 2023

February 1, 2023 WEBINAR

Broadridge Financial Solutions, Inc.

SECURE 2.0 Key Provisions for Employer-Sponsored Retirement Plans: How They Impact Plan Documentation and Operations, Part 1

February 9, 2023 WEBINAR

Trucker Huss

Institutionalizing Retirement Income in the Defined Contribution System: a Pathway to Success

February 9, 2023 WEBINAR

Defined Contribution Institutional Investment Association [DCIIA]

SECURE 2.0 Key Provisions for Employer-Sponsored Retirement Plans: How They Impact Plan Documentation and Operations, Part 2

February 14, 2023 WEBINAR

Trucker Huss

IRA University

February 22, 2023 WEBINAR


SECURE 2.0 and Defined Benefit Plans

March 1, 2023 WEBINAR

Groom Law Group

How Inflation Impacts Plan Design and Funding

March 8, 2023 WEBINAR

Conference of Consulting Actuaries

QDROs: Keeping Plan Sponsors Out of the Crossfire

March 9, 2023 WEBINAR

ASPPA [American Society of Pension Professionals & Actuaries]

Last Issue's Most Popular Items

SECURE 2.0 Technical Drafting Error Puts Catch-Ups in Jeopardy

American Retirement Association [ARA]

SECURE 2.0 Adds New Distribution Options for Defined Contribution Plans

Faegre Drinker

SECURE 2.0 Impacts on Governmental Plans

Best Best & Krieger LLP

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

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