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Retirement Plans Newsletter

November 27, 2023

[Guidance Overview]

New LTPT Proposed Regs Drop as Effective Date Looms

"These rules become effective for most 401(k) plans on January 1, 2024 -- a mere 25 working days after the proposed regulations were issued.... ... Safe harbor plans with a service-based eligibility condition have a number of administrative and design issues to consider.... [P]lan amendments to reflect the changes in the eligibility requirements to comply with SECURE 1.0 and SECURE 2.0 ... do not need to be made until the plan must be updated for other changes for these laws,"   MORE >>

American Retirement Association [ARA]

[Sponsor]

Navigate ERISA with Confidence: Choose EOB

EOB stands as the pinnacle of ERISA resources, providing not just information, but insight. With continuous updates and comprehensive coverage, including key decisions and new regulations, EOB empowers professionals to stay informed and ahead in their field.

Sponsored by ASPPA

[Guidance Overview]

Exceptional Usefulness and Quality icon Long Term, Part Time Employees, Part 1

"We already allow employees who work fewer than 500 hours per year to defer. Does this new rule impact us? That is a definite 'no'  ... Similarly, if you use the elapsed time method of determining eligibility for all of your employees, you also don't have to worry about this rule.... Our plan excludes certain classifications of employees. Do we now have to allow those employees to join the plan if they meet the LTPT requirements? As long as that exclusion is otherwise allowable, you can continue to apply it to those who would otherwise join as LTPT employees."   MORE >>

DWC

[Guidance Overview]

Exceptional Usefulness and Quality icon Long Term, Part Time Employees, Part 2

"[It] is not possible to unduly limit LTPT deferral rates in a way that would preclude them from receiving other plan benefits.... [It] is possible to allow 'regular' employees who are at least age 50 to make additional catch-up contributions while precluding LTPT employees from doing so. However, you would also have to elect to exclude the LTPT employees from nondiscrimination testing ... [T]he LTPT rules do not blow up your plan's safe harbor status at all."   MORE >>

DWC

[Guidance Overview]

2024 Retirement Plan Compliance Calendars

"For calendar-year defined benefit (DB) and defined contribution (DC) plans, these retirement plan compliance calendars list key IRS, [PBGC] and [DOL] reporting and disclosure deadlines."   MORE >>

Mercer

Second Circuit Adopts Pleading Standard for Prohibited Transaction Claims Under ERISA

"[T]he Second Circuit held that in order to plead a prohibited transaction claim between a plan fiduciary and party in interest, a complaint must plausibly allege that the fiduciary caused the plan to engage in a transaction that constituted furnishing of services between the plan and party in interest, where that transaction was unnecessary or involved unreasonable compensation, thereby supporting an inference of disloyalty." [ Cunningham v. Cornell Univ. , No. 21-0088 (2d Cir. Nov. 14, 2023)]   MORE >>

Roberts Disability Law

Cornell Ruling Widens Circuit Split on ERISA Fiduciary Question

"Decisions regarding ERISA prohibited transactions in cases heard in the 8th and 9th Circuits set different standards than the one set by the 2nd Circuit's decision, increasing the likelihood of the Supreme Court hearing an appeal to set nationwide precedent." [ Cunningham v. Cornell Univ. , No. 21-0088 (2d Cir. Nov. 14, 2023)]   MORE >>

PLANSPONSOR; free registration may be required

New York City Pension Case Tees Up First Test of ESG Fiduciary Duty Theory. Will More Suits Follow?

"AFFT and other conservative activists could deploy the same model to launch litigations challenging the use of ESG investing more generally on the same fiduciary duty theory. Just as AFFT apparently solicited a handful of NYC plan participants to stand as plaintiffs, such organizations could presumably identify participants in any number of public and private retirement plans willing to play the same role." [Wong v. NYCERS, TRS and BERS No. 652297/2023 (NY Cty. Sup. Ct. complaint filed May 11, 2023)]   MORE >>

Ropes & Gray, via Lexology; free registration required

DOL Sues Shuttered Law Firm Alleging Failure to Terminate Plan and Distribute Participant's Assets

"The McCullough, Campbell & Lane LLP retirement savings plan [allegedly] owes an average of more than $200,000 to 25 participants.... The [DOL] sued the retirement plan of [the now] defunct law firm ... and four of the firm's capital partners ... for allegedly failing to terminate the company retirement plan, which holds $5.4 million in assets." [Su v. Turner, No. 23-16121 (N.D. Ill. complaint filed Nov. 20, 2023)]   MORE >>

PLANSPONSOR; free registration may be required

Addressing the Unique Retirement Planning Needs of Women

"Women, in particular, face distinct challenges in retirement planning  ... Factors such as longer life expectancy, career interruptions, and the gender pay gap contribute to these challenges. This article explores the specific retirement planning needs of women and offers insights into how they can navigate these challenges to achieve financial security in their later years."   MORE >>

Safe Money Lady

[Opinion]

Supernerds Unite Against Dave Ramsey's 8% Safe Withdrawal Rate Guidance

"Ramsey doesn't appear to grasp the differences between geometric returns (what you earn in an investment) and arithmetic returns (the simple average). He also doesn't appreciate how a 100% stock portfolio increases sequence of return risk. A retiree who listened to Ramsey and followed an 8% withdrawal rule while holding a four-fund stock portfolio in the 2000s would have run out of money in as little as 13 years."   MORE >>

ThinkAdvisor

Benefits in General

[Official Guidance]

IRS Disaster Relief Announcement IL-2023-07, for Taxpayers Impacted by Severe Storms and Flooding in Parts of Illinois

"[I]ndividuals and businesses affected by severe storms and flooding in parts of Illinois ... now have until Feb. 15, 2024, to file various individual and business tax returns and make tax payments ... [I]ndividuals and households affected by severe storms and flooding that reside or have a business in Cook County qualify for tax relief."   MORE >>

Internal Revenue Service [IRS]

[Official Guidance]

IRS Disaster Relieve Announcement Vi-2023-01, for Taxpayers Impacted by Elevated Levels of Lead and Copper in Water Supply in Saint Croix, U.S. Virgin Islands

"[I]ndividuals and businesses affected by elevated levels of lead and copper in the water supply in the Island of St. Croix ... now have until Feb. 29, 2024, to file various individual and business tax returns and make tax payments."   MORE >>

Internal Revenue Service [IRS]

Employee Benefits Jobs

View job as ESOP Administrator
            for Blue Ridge ESOP Associates

ESOP Administrator

Blue Ridge ESOP Associates

Remote

View job as ESOP Administrator for Blue Ridge ESOP Associates

View job as Defined Contribution Account Manager
            for Nova 401(k) Associates

Defined Contribution Account Manager

Nova 401(k) Associates

Remote

View job as Defined Contribution Account Manager for Nova 401(k) Associates

View job as DB/DC Consultant
            for Nova 401(k) Associates

DB/DC Consultant

Nova 401(k) Associates

Remote

View job as DB/DC Consultant for Nova 401(k) Associates

View job as Director of Sales
            for Ubiquity Retirement + Savings

Director of Sales

Ubiquity Retirement + Savings

Remote

View job as Director of Sales for Ubiquity Retirement + Savings

View job as Vice President of Partner Ecosystem
            for Ubiquity Retirement + Savings

Vice President of Partner Ecosystem

Ubiquity Retirement + Savings

Remote

View job as Vice President of Partner Ecosystem for Ubiquity Retirement + Savings

View job as Retirement Account Administrator
            for Alerus

Retirement Account Administrator

Alerus

Remote / MN / ND

View job as Retirement Account Administrator for Alerus

View job as Senior Retirement Analyst
            for Dunbar, Bender & Zapf, Inc.

Senior Retirement Analyst

Dunbar, Bender & Zapf, Inc.

Remote / Pittsburgh PA

View job as Senior Retirement Analyst for Dunbar, Bender & Zapf, Inc.

Selected New Discussions

Distribution from Underfunded Cash Balance Plan

"My wife is a participant in a cash balance plan as a partner in a medical practice. Some internal discussions have made it seem like the plan is underfunded even though the 5500 for 2022 shows over 120% funded status. She will be separating from employment next year and our plan was to rollover her vested benefits to an IRA. When others have left, there have been discussions about who should be responsible for the 'make-whole' payment if the plan is truly underfunded at the time of separation. Some thoughts have been that the employee should just true up their own balance through an additional deduction from their P&L. That struck me as odd, so I was curious if there were any actual federal guidelines or regulations that would govern a situation like this where vested employees are seeking their benefits from an underfunded plan. The plan is covered by PBGC. Not sure what other details might be relevant, but thanks in advance for any assistance!"

BenefitsLink Message Boards

DOL Non-filer Notice

"I often read about IRS noticed for non-filing with large penalties -- folks are instructed to immediately file the voluntary way and pay the nominal penalty. Then, send the proof of that to IRS for penalty to be waived. Everyone also says once the DOL sends notice of non-filing there is no way to get any penalty relief (which could easily get into the millions after a few years). I don't ever see anyone post that they received the DOL letter though. Does the IRS one always come first? or, does the DOL send some sort of gentle reminder that allows you to quickly do the voluntary program before their official letter?

I ask because if you look at publicly available enforcement data online there are only a handful of businesses TOTAL each year that have penalties issues above 100k by DOL (like 5-10 total) yet there are millions of businesses that are subject to 5500 filings and MANY that are unaware of filing requirements for various reasons so have multiple years of non filing and are none the wiser.

  1. do notices always come from IRS first?
  2. Are the large penalties really only assessed if someone ignores letters that give them the chance to do the voluntary program?
  3. Is there a reason every posting on here about non filing penalties references IRS notices as the ones they are getting and not DOL?
  4. If DOL did an audit of a small plan and discovered 6 years of non filing, would they really assess millions in penalties? I ask because, while this is what they say they can do in documents, the metrics on their own enforcement site show this is not what is actually occuring. Most non filer penalties it shows are the 5-15k range. And, even those are not large in number."

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

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