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von Briesen & Roper
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The Allocation Company, Inc.
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Ascensus
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CBA / ABA / IPEBLA Global Pension and Employee Benefits Lawyers Conference
June 10, 2018 in MA
American Bar Association Joint Committee on Employee Benefits [JCEB]

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Ignore Those Form 5500 Instructions: 403(b) Plans Do Not Use Form 5330 for Late Deposits
"Though late deferrals to an ERISA 403(b) plan do need to be reported under the Compliance portion of the Form 5500 Schedule H or Schedule I, Form 5330 cannot be filed-in spite of the instructions in the Form 5500 instructions.... But there is no statutory requirement that you report it other than on the Form 5500 or mandatorily pay a penalty.... [T]he non-ERISA 403(b) plan is never subject to either the ERISA prohibited transaction rules or the 4975 tax. HOWEVER, timely deposit is a condition of 403(b) status ... Identifying those 'late' deposits can be a challenge."
Business of Benefits

ftwilliam.com -- Stress-free Compliance Testing Season!

If you have not seen the ftwilliam.com Compliance Module in action, now is the time! Recent enhancements include -- a custom report writer, payroll data accumulator and distribution processing feature! Learn more or request a demo today!

IRS Requests Input on Possible Expansion of Determination Letter Program in 2019
"The Treasury and IRS have indicated that they will issue guidance if they identify any additional types of plans that may request a determination letter during 2019. However, they reserve the right not to expand the program at all, given the still limited IRS resources and the focus on tax reform[.]"
Groom Law Group

IRS Requests Comments on Expanding Favorable Determination Letter Program
"[T]he IRS is interested in public input on circumstances it should consider in its decision to accept applications for favorable determination involving amended plans, or types of plan amendments, during calendar year 2019. Currently, the IRS only accepts applications for rulings on initial plan qualification or qualification on termination."
Morgan Lewis

IRS Pressed on VCP Fee Changes at Hearing by House Small Business Subcommittee
"Sunita Lough, Commissioner of the IRS's Tax Exempt/Government Entities (TEGE) division ... provided testimony to a skeptical subcommittee to explain her rationale behind the changes.... Lough admitted that the IRS did not study how an increase in VCP user fees would affect small businesses' willingness to adopt and/or maintain retirement plans. Instead, the IRS's sole focus was on calculating the average time its employees spent on processing applications approving retirement plan corrections."
National Association of Plan Advisors [NAPA]

PBGC Proposes Conforming Changes to Guaranteed Benefits and Asset Allocation Regs Concerning Owner-Participants
"The proposed regulations would amend the PBGC's benefit payment regulation by replacing the guarantee limitations applicable to substantial owners with a new limitation applicable to majority owners. In addition, the proposed regulations would amend the PBGC's asset allocation regulation by prioritizing funding of all other benefits in priority category 4 ahead of those benefits that would be guaranteed but for the new, owner-participant limitation."
Wolters Kluwer Law & Business

Evaluating Your Third-Party Administrator: Are You Getting What You're Paying For?

May 2 webinar will enable entities responsible for identifying, selecting, and monitoring their TPA to track performance and assess results, as well as identify opportunities to create additional value. Discount for BenefitsLink readers .

Summary of Current Law Relating to Multiemployer Defined Benefit Plans
58 pages. "The Joint Select Committee on the Solvency of Multiemployer Pension Plans has scheduled a public hearing on April 18, 2018, on an overview of the multiemployer pension system. This document ... provides a discussion of present law relating to retirement plans generally and to multiemployer defined benefit plans in particular, as well as selected data relating to multiemployer defined benefit plans."
Joint Committee on Taxation [JCT], U.S. Congress

Defined Contribution Consulting Support and Trends Survey
24 pages. "[This] 2018 survey captures data, trends and opinions from 77 consulting firms across the U.S.... These firms advise over $4.4 trillion in US DC assets, accounting for almost 60% of all US DC assets ... Four out of five firms are willing to serve in some fiduciary capacity.... [T]op characteristics preferred [in a retirement income investment are] Liquidity (89%), Inflation protection (86%), and No new fiduciary risk (78%) ... The majority specify a minimum yield of 4% or 5% with a monthly payout.... Two-thirds (67%) of DC revenues are derived from fixed dollar arrangements, while 32% are sourced from basis point arrangements."
PIMCO

Open MEPs Top DCIIA's Retirement Plan Coverage Gap Wish List
"Peg Knox, chief operating officer of DCIIA, points to both the coverage gap and retirement income adequacy as being top of mind. There is also ... a strong fee litigation focus.... [[T]he open multiple employer plan (or 'open MEP') idea is particularly exciting.... [DCIIA President and CEO Lew Minsky] agrees with that assessment, wholeheartedly supporting the expansion of open MEPs and voicing a little exasperation that an idea with 'so much universal support' still hasn't truly caught on."
planadviser

401(k) Lawsuits Increasingly Involving Retirement Plan Advisers
"Most litigation up to this point has targeted only the largest plans as well as service providers such as record keepers ... But litigation is heading down market to smaller plans -- the market in which most 401(k) advisers operate.... Michael Wolf, a litigator at Schlichter Bogard & Denton, said it's 'not too far away' from plan sponsors suing their advisers to bring them into a lawsuit as a responsible party."
InvestmentNews

Principal Global Investors Hit with Suit Over Target Date Funds
"Principal Global -- a subsidiary of Principal Financial Group Inc. -- consistently invested all assets of its target date funds into costly and poorly performing index funds, vehicles, and share classes and failed to timely remove and replace those funds with lower cost alternatives, better performing options, according to a lawsuit filed April 16 in the U.S. District Court for the Southern District of Iowa."
Bloomberg BNA

Fourth Quarter 2017 Annuity Sales Report
"Industry-wide annuity sales in the fourth quarter of 2017 totaled $48.4 billion, a 9.5 percent increase over sales of $44.2 billion during the third quarter of 2017, and a 0.3% increase from sales of $48.2 billion in the fourth quarter of 2016.... [F]ixed annuity sales during the fourth quarter of were $24.5 billion, a 5.2 percent increase over third quarter sales of $23.2 billion and a 2.7 percent increase from sales of $23.8 billion during the fourth quarter of 2016."
Insured Retirement Institute [IRI]

How Do Contracts for Former Employees Affect Participant Count in 403(b) Program?
DOL FAB 2009-02 seems to allow the exclusion of individual annuity contracts for anyone terminated before January 1, 2009. A 403(b) plan sponsor (educational institution) has had a required annual audit because of the number of participants, partly because they have been including individual annuity contracts for former employees who terminated in 2008 or earlier and who have not been entitled to receive any employer contributions since 2008. In the Q&A for DOL FAB 2010-01, it seems the initial inclusion of those pre-2009 terminees was optional at the time. Can the plan sponsor reverse its decision and choose not to include those contracts in plan assets now and also not include those pre-2009 terminees in the participant count? It might mean they would no longer require an audit because they would fall below the threshold.
BenefitsLink Message Boards

Plan Has Used QACA Match But Terms of Document Didn't Match
Client has operated its plan as a safe harbor using/with a QACA match since 2011. When the document was restated in 2016, the attorney doing the restatement checked "SH 3% -- maybe" election as the option. The SH notice from 2011-2016 stated QACA but the 2017 one had 3%. As I said, the client has always calculated and funded the basic QACA match. How in the world can this be fixed? Scrivener's error, or is it a major deal involving IRS filings?
BenefitsLink Message Boards

Restatement Needed in Order to Terminate 403(b)?
In 2018 we will be terminating a 403(b) plan which the plan sponsor has not yet restated for PPA. The restatement deadline is 2020 so we are within the restatement period but nowhere near the deadline. Do we have to restate this plan to terminate it? The assets will be paid out in 2018.
BenefitsLink Message Boards

Fiduciary Liability for Signing Form 5500?
One of the newest marketing techniques I am running into is where an "independent expert" come in and says to the firm's controller that by signing Form 5500 for the firm you are exposing yourself to a personal liability, including making yourself a fiduciary. I note that the plan document does include language that fully indemnifies any individual acting as an agent for the plan sponsor. Anyone have any comments on this practice?
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