Retirement Plans Newsletter

April 27, 2018

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[Guidance Overview]

DOL Addresses ESG Investment in Field Assistance Bulletin to National and Regional Offices

"Although IB 2015-01 had apparently allowed the collateral benefits of [environmental, social, and governance (ESG)] considerations to be taken into account in certain circumstances, such as a tie-breaker when the economic benefits of an investment were equivalent, in FAB 2018-01 there were circumstances when otherwise collateral ESG issues present material business issues that qualified business professionals would treat as economic considerations. In the DOL's view, in these circumstances, the otherwise collateral ESG benefits would be more than tie-breakers."
The Wagner Law Group

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[Guidance Overview]

DOL Has More to Say About ESG and Shareholder Rights

"The DOL clarified that Interpretative Bulletin 2016-01 was not intended to suggest that individual plans regularly undertake significant expenses to engage in shareholder activism. Also, investment managers and individual plans should not regularly incur significant plan expenses for activist investment activities[.]"
Seyfarth Shaw LLP

[Guidance Overview]

See QLAC Rules to Understand How 401(k) and IRA-Based Lifetime Income Works

"[T]he best place to start to get a fundamental understanding of how DC plans and IRAs can be used to provide lifetime income is to look at the IRS's guidance on the Qualified Longevity Annuity Contracts [QLAC]. The preamble to the proposed regulation provides clear ... guidance on how lifetime income is structured.... The IRS's guidance in Revenue Ruling 2012-3 was actually designed to make the QLAC regs work ... [It] approves the notion that Lifetime Income in a 401(k) is an investment option, and not a benefit under the plan (thus not subject to 411(d)(6) and other sticky rules)."
Business of Benefits

[Guidance Overview]

SEC Proposes Best Interest Standard (PDF)

24 pages. "The SEC's proposed best interest standard appears to be directed at the same goal as the 'impartial conduct standards' included ... with the adoption of the DOL Fiduciary Rule.... As part of the proposed rule package, the SEC published for comment a short-form customer or client relationship summary (Form CRS) brokers would be required to use in setting out the material facts of the relationship with their clients. Proposed Form CRS also contains a set of questions for customers to ask their brokers before agreeing to a recommendation." Steptoe & Johnson LLP

[Guidance Overview]

DOL and ESG Investing: Evolving Guidance

"[W]hile DOL continues to acknowledge that ETI factors can be a 'tie-breaker,' it cautions plan fiduciaries against converting factors that could be Collateral Benefits into relevant investment return economic factors, such as by concluding that the ESG factors 'promote positive general market trends or industry growth.' Instead, FAB 2018-01 states that fiduciaries must 'not too readily treat ESG factors as economically relevant.' ... DOL hypothesizes that plan participants could have competing views on Collateral Benefits and that a fiduciary could thus violate his or her duty of loyalty by favoring some participants' views over others." Groom Law Group

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Wells Fargo's 401(k) Practices Probed by DOL

"The Labor Department is examining whether Wells Fargo & Co. has been pushing participants in low-cost corporate 401(k) plans to roll their holdings into more expensive individual retirement accounts at the bank ... Labor Department investigators also are interested in whether Wells Fargo's retirement-plan services unit pressed account holders to buy in-house funds, generating more revenue to the bank[.]" The Wall Street Journal; subscription may be required

How a 'Mega Roth' Can Help Your DC Plan

"Plan sponsors that want to allow participants to contribute more Roth monies to a defined contribution (DC) plan than the standard limits have an option: An in-plan Roth conversion of after-tax contributions in the same year they are made to the DC plan." Callan

Why Workers Retire When They Do

"In the 1980s, 41 percent cited employer retirement incentives, such as a pension plan, as their main reason to retire. That percentage was down 14 points to 27 percent by the 2010s. Conversely, the number citing personal reasons, such as health issues, increased 14 points from 25 percent to 39 percent over the same time period." National Public Pension Coalition

States Step Forward in Fiduciary Fight

"Three states have now entered the fiduciary rule litigation arena, claiming that they 'can no longer rely on DOL to adequately represent their interests.' ... The arguments presented in support of those motions boil down to three key areas.... The plaintiffs describe the 5th Circuit's definition of a fiduciary as 'narrow' and 'inconsistent with ERISA's history and purpose,' which they write was 'adopted to give retirees protections that extended beyond those offered by existing laws.' " National Association of Plan Advisors [NAPA]

Benefits in General

Voluntary Severance Plans: From Success to Backfire

"[T]he benefits of an ERISA severance plan generally include ... [1] no litigation until there has been an exhaustion of the plan's claims procedures, which may foreclose claims that are not promptly asserted; [2] judicial review under highly deferential standards, rather than de novo; [3] litigation in federal court under well-defined ERISA rules applied by a judge, instead of before a jury in state court; and [4] damages that ERISA limits to plan benefits and potential attorneys' fees, rather than the full panoply of damages recoverable through tort claims outside ERISA." The Wagner Law Group

Executive Compensationand Nonqualified Plans

[Guidance Overview]

2018 Update for Internal Revenue Code Section 162(m) Changes

"Be careful to examine shareholder-approval issues before amending a plan that previously received such approval.... To preserve corporate deductions, consider increased use of deferred compensation and restricted stock (with longer vesting schedules), and less use of stock options. Likewise, draft new severance plans and employment agreements to provide for installment payouts, as well as to allow severance bonus payouts at target[.]" The Wagner Law Group

Selected Discussionson the BenefitsLink Message Boards

Are Deferral Failures Discrete or Collective?

A plan failed to allow deferrals for some participants beginning in 2015 and continuing to 2017. On plan correction, how do we interpret Rev. Proc. 15-28, which allows correction using a 25% QNEC if within the SCP time limit for significant errors (last day of the 2nd plan year)? It's clear that for 2015, the 50% QNEC correction applies, because 2018 is beyond the 2-year deadline. But what about 2016 and 2017? Are each of the missed deferrals treated as discrete and therefore eligible for the 25% safe harbor correction or are all missed deferrals considered part of a continuous whole and all subject to the 50% QNEC correction? BenefitsLink Message Boards

Required Minimum Distributions -- Can We Choose a Non-QJSA Source?

I've got a participant in a plan that has deferrals, safe harbor, profit sharing, and merged old money purchase money. The participant is an owner and needs an RMD this year. Can he opt to have his RMD come from his profit sharing 'portion' and therefore avoid the QJ&S hassle? If he can do that and then move to deferrals and safe harbor, that should buy about two or three years, and I'm hoping he retires by then and takes it all. (I know he'll have to do the QJ&SA mambo at that point, but at least it's only once.) BenefitsLink Message Boards

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Press Releases

Former Financial Executives Sentenced in $179 Million Loan Scam Employee Benefits Security Administration [EBSA], U.S. Department of Labor

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BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2018 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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