Defined benefit plans – Page 3

IRS Provides Guidance on Calculating the Maximum Loan Amount under IRC § 72(p)(2)(A)

The IRS has issued a memorandum providing guidance to its Employee Plans (EP) Examinations staff to determine, the amount available for a loan under § 72(p)(2) of the Internal Revenue Code (IRC), where the participant has received multiple loans during the past year from a qualified plan.

Background
In general, IRC § 72(p)(1) provides that a loan from a plan is a distribution to the participant. IRC § 72(p)(2)(A) excepts a loan that does not exceed the lesser of:

(i) $50,000, reduced by any excess of

(I) the highest outstanding balance of loans during the 1-year period ending on the day before the date on which such loan was made, over

(II) the outstanding balance of loans on the date on which such loan was made; or

(ii) the greater of

(I) half of the present value of the vested accrued benefit, or

(II) $10,000.

Under IRC § 72(p)(2)(A)(i), if the initial loan is less than $50,000, the participant generally may borrow another loan within a year if the aggregate amount does not exceed $50,000. The $50,000 is reduced by the highest outstanding balance of loans during the 1-year period ending the day before the second loan, in turn reduced by the outstanding balance on the date of the second loan.

The guidance to EP examiners is best illustrated by an example: assume a participant borrowed $30,000 in February, which was fully repaid in April, and then borrowed $20,000 in May, which was fully repaid in July, before applying for a third loan in December.

In this example, the IRS instructs its examiners that the Plan can apply the limitations in one of two ways.

In the first approach, the plan may determine that no further loan would be available in December, since $30,000 + $20,000 = $50,000.

Alternatively, the plan may identify “the highest outstanding balance” as $30,000, and permit the third loan in the amount of $20,000 in December.

At this time, IRS EP examiners will accecpt the position that the law does not clearly preclude either computation of the highest outstanding loan balance in the above example.

President Orders Review of Fiduciary Duty Rule

On February 3, 2017, the President issued a Presidential Memorandum on the Fiduciary Duty Rule, ordering the Department of Labor (DOL) to “examine the Fiduciary Duty Rule to determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice”.

DOL Review

The memorandum directs the DOL to “prepare an updated economic and legal analysis concerning the impact of the Fiduciary Duty Rule”, considering whether the rule:

has harmed or is likely to harm investors due to a reduction in access to certain retirement savings offerings, retirement product structures, retirement savings information, or related financial advice;
has resulted in dislocations or disruptions within the retirement services industry that may adversely affect investors or retirees; or
is likely to cause an increase in litigation, and an increase in the prices that investors and retirees must pay to gain access to retirement services.

Possible Revision or Rescission

The memorandum also instructs the DOL to rescind or revise the rule if it makes an affirmative determination as to any of the above considerations, or if it concludes for any other reason after appropriate review that the Fiduciary Duty Rule is inconsistent with the Administration’s stated priority “to empower Americans to make their own financial decisions, to facilitate their ability to save for retirement and build the individual wealth necessary to afford typical lifetime expenses, such as buying a home and paying for college, and to withstand unexpected financial emergencies”.

Possible Delay

While the Memorandum does not directly delay the rule, the acting U.S. Secretary of Labor, Ed Hugler, responded to the President’s direction through a News Release stating that “The Department of Labor will now consider its legal options to delay the applicability date as we comply with the President’s memorandum.”

While it is still unclear whether the DOL will delay the rule, it is entirely possible, likely even, that the DOL will delay the rule within the next few weeks. It is also a good bet that the DOL will ultimately make some revisions to the rule, even if they do not rescind it entirely. In the meantime, financial advisors and others subject to the Rule will need to evaluate their compliance efforts so that they remain as nimble as possible in the face of he constantly shifting regulatory sands.

Plan Sponsors and Plan Administrators should note that neither the Fiduciary Duty Rule, nor the potential impending changes to the rule, directly impact their responsibilities as plan fiduciaries, other than how the rule impacts those providing financial advice to Plan Sponsors and Administrators.

DOL Conflict of Interest Final Rule Page

IRS Issues Updated Determination Letter Revenue Procedure

The IRS has updated and restated its revenue procedures governing determination letters for various types of employee benefit plans.

Rev. Proc. 2017-4 reflects the prior elimination of the five-year remedial amendment cycles for individually designed plans and includes other changes made to the determination letter program, including:

limited-scope determination letters on partial terminations if an employer is not otherwise eligible to request a determination letter;
determination letters on leased employees only if the employer is otherwise eligible to request a determination letter;
no determination letters on affiliated service groups; and
modified procedures for requesting relief from retroactive revocations of determination letters or letter rulings.

IRS Issues 2016 “Required Amendments List”

The IRS has issued its first “Required Amendments List” for qualified plans since it eliminated the five-year remedial amendment cycle, and significantly curtailed the favorable determination letter program for individually designed plans. The IRS will issue a new List each year.

This first List, set forth in Notice 2016-80 contains amendments that are required as a result of changes in qualification requirements that become effective on or after January 1, 2016. December 31, 2018 is the plan amendment deadline for a disqualifying provision arising as a result of a change in qualification requirements that appears on the 2016 List.

The Required Amendments List is divided into two parts:

Part A lists the changes that would require an amendment to most plans or to most plans of the type affected by the particular change. Part A of the 2016 List contains no changes applicable to most plans.

Part B lists changes that the Treasury Department and IRS do not anticipate will require amendments in most plans, but might require an amendment because of an unusual plan provision in a particular plan. Part B of the 2016 List contains a single change that may apply to certain collectively bargained defined benefit plans: Restrictions on accelerated distributions from underfunded single-employer plans in employer bankruptcy under Code § 436(d)(2), which was enacted as part of the Highway and Transportation Funding Act of 2014, P.L. 113-159, § 2003. Code Section provides (amendments made by P.L. 113-159, § 2003 in italics):

A defined benefit plan which is a single-employer plan shall provide that, during any period in which the plan sponsor is a debtor in a case under title 11, United States Code, or similar Federal or State law, the plan may not pay any prohibited payment. The preceding sentence shall not apply on or after the date on which the enrolled actuary of the plan certifies that the adjusted funding target attainment percentage of such plan (determined by not taking into account any adjustment of segment rates under section 430(h)(2)(C)(iv)) is not less than 100 percent.

Section 430(h)(2)(C)(iv) sets minimum and maximum and maximum rates for actuarial calculations of the funded status of defined benefit plans.

If a defined benefit plan incorporates the limitation of Section 436(d)(2) by reference to the statute or regulations (or through the use of the sample amendment in Notice 2011-96, which incorporated the statute and regulations), then no amendment to the plan would be required to comply with the changes.

Additional Background

In Rev. Proc. 2016-37, the IRS eliminated, effective January 1, 2017, the five-year remedial amendment/determination letter cycle for individually-designed qualified plans. After January 1, 2017, individually-designed plans will only be able to apply for a determination letter upon initial qualification, upon termination, and in certain other circumstances that the IRS may announce from time to time. See Announcement 2015-19.

To provide individually designed plans with guidance on what amendments must be adopted and when, the IRS announced that it would publish annually a Required Amendments List. The Required Amendments List generally applies to changes in qualification requirements that become effective on or after January 1, 2016. The List also establishes the date that the remedial amendment period expires for changes in qualification requirements contained on the list. Generally, an item will be included on a Required Amendments List only after guidance (including any model amendment) has been issued.

Where a required amendment appears on the List, then for an individually-designed non-governmental plan, the deadline to adopt the amendment is extended to the end of the second calendar year that begins after the issuance of the Required Amendments List in which the change in qualification requirements appear (i.e. until December 31, 2018 for items on the 2016 List).

ERISA Benefits Law Receives Recognition as a Top Tier Law firm in 2017 U.S. News – Best Lawyers® “Best Law Firms” Rankings

Just eight months after opening its doors as a niche ERISA and employee benefits law firm focused on providing the highest quality legal services at the most affordable rates anywhere, ERISA Benefits Law has been recognized as a top tier law firm in the 2017 U.S. News – Best Lawyers® “Best Law Firms” rankings. The firm received a Tier 1 metropolitan ranking in Tucson, Arizona in Employee Benefits (ERISA) Law.

The U.S. News – Best Lawyers “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

IRS Announces 2017 COLA Adjusted Limits for Retirement Plans

The IRS has released Notice 2016-62 announcing cost‑of‑living adjustments affecting dollar limitations for pension plans and other retirement-related items for tax year 2017.

Highlights Affecting Plan Sponsors of Qualified Plans for 2017

The contribution limit for employees who participate in 401(k), 403(b), most 457 plans, and the federal government’s Thrift Savings Plan remains unchanged at $18,000.
The catch-up contribution limit for employees aged 50 and over who participate in 401(k), 403(b), most 457 plans, and the federal government’s Thrift Savings Plan remains unchanged at $6,000.
The limitation on the annual benefit under a defined benefit plan under Section 415(b)(1)(A) is increased from $210,000 to $215,000.
The limitation for defined contribution plans under Section 415(c)(1)(A) is increased in 2017 from $53,000 to $54,000.
The annual compensation limit under Sections 401(a)(17), 404(l), 408(k)(3)(C), and 408(k)(6)(D)(ii) is increased from $265,000 to $270,000.
The dollar limitation under Section 416(i)(1)(A)(i) concerning the definition of key employee in a top-heavy plan is increased from $170,000 to $175,000.
The limitation used in the definition of highly compensated employee under Section 414(q)(1)(B) remains unchanged at $120,000.
The dollar amount under Section 409(o)(1)(C)(ii) for determining the maximum account balance in an employee stock ownership plan subject to a 5‑year distribution period is increased from $1,070,000 to $1,080,000, while the dollar amount used to determine the lengthening of the 5‑year distribution period is increased from $210,000 to $215,000.
The compensation amount under Section 408(k)(2)(C) regarding simplified employee pensions (SEPs) remains unchanged at $600.
The limitation under Section 408(p)(2)(E) regarding SIMPLE retirement accounts remains unchanged at $12,500.

The IRS previously Updated Health Savings Account limits for 2017. See our post here.

The following chart summarizes various significant benefit Plan limits for 2015 through 2017:

Type of Limitation	2017	2016	2015
415 Defined Benefit Plans	$215,000	$210,000	$210,000
415 Defined Contribution Plans	$54,000	$53,000	$53,000
401(k) Elective Deferrals, 457(b) and 457(c)(1)	$18,000	$18,000	$18,000
401(k) Catch-Up Deferrals	$6,000	$6,000	$6,000
SIMPLE Employee Deferrals	$12,500	$12,500	$12,500
SIMPLE Catch-Up Deferrals	$3,000	$3,000	$3,000
Annual Compensation Limit	$270,000	$265,000	$265,000
SEP Minimum Compensation	$600	$600	$600
SEP Annual Compensation Limit	$270,000	$265,000	$265,000
Highly Compensated	$120,000	$120,000	$120,000
Key Employee (Officer)	$175,000	$170,000	$170,000
Income Subject To Social Security Tax (FICA)	$127,200	$118,500	$118,500
Social Security (FICA) Tax For ER & EE (each pays)	6.20%	6.20%	6.20%
Social Security (Med. HI) Tax For ERs & EEs (each pays)	1.45%	1.45%	1.45%
SECA (FICA Portion) for Self-Employed	12.40%	12.40%	12.40%
SECA (Med. HI Portion) For Self-Employed	2.9%	2.9%	2.90%
IRA Contribution	$5,500	$5,500	$5,500
IRA catch-up Contribution	$1,000	$1,000	$1,000
HSA Max Single/Family	$3,400/6,750	$3,350/6,750	$3,350/6,650
HSA Catchup	$1,000	$1,000	$1,000
HSA Min. Annual Deductible Single/Family	$1,300/2,600	$1,300/2,600	$1,300/2,600

PBGC Expands Missing Participant Program to Defined Contribution Plans

The Pension Benefit Guaranty Corporation (PBGC) has issued a Proposed Rule that would redesign its existing missing participants program for single employer Defined Benefit (DB) plans and to adopt three new missing participants programs that will cover most Defined Contribution (DC) plans, as well as multiemployer DB plans and professional service employer DB plans. All four programs would follow the same basic design. Among the most prominent changes to the existing program would be:

• Provision for fees to be charged for plans to participate in the missing participants program.

• A requirement to treat as ‘‘missing’’ non-responsive distributees with de minimis benefits subject to mandatory cash-out under the plan’s terms.

• More robust requirements for diligent searches, using sponsor and related plan records, free web-search methods, and (subject to waiver) commercial locator services (which would be clearly defined).

• Fewer benefit categories and fewer sets of actuarial assumptions for determining the amount to transfer to PBGC.

• Changes in the rules for paying benefits to missing participants and their beneficiaries.

An important part of all of the missing participants programs will be a new unified pension search database. This database would include information about missing participants and their benefits and a directory through which members of the public could easily query the database (using a choice of fields) to determine whether it contained information about benefits being held for them. PBGC anticipates that its new pension search database will provide a comprehensive, nationwide, authoritative, reliable, easy to use source of information about missing participants and the benefits being held for them.

‘‘Missing’’ would be defined more specifically than in the current regulation. As explained below, a distributee would be missing if—

(1) For a DB plan, the plan did not know where the distributee was (e.g., a notice from the plan was returned as undeliverable), unless the distributee’s benefit was subject to mandatory ‘‘cashout’’ under the terms of the plan, or

(2) For a DC plan, or a distributee whose benefit was subject to a mandatory cash-out under the terms of a DB plan, the distributee failed to elect a form or manner of distribution.

For DC plans, PBGC proposes to specify simply that a diligent search is one conducted in accordance with DOL guidance, the most recent of which was issued on August 14, 2014 by the Employee Benefits Security Administration (EBSA) in Field Assistance Bulletin No. 2014–01 regarding Fiduciary Duties And Missing Participants In Terminated Defined Contribution Plans (the FAB). The FAB provides guidance about required search steps and options for dealing with the benefits of missing participants in terminated DC plans.

PBGC is proposing to charge a one-time $35 fee per missing distributee, payable when benefit transfer amounts are paid to PBGC, without any obligation to pay PBGC continuing ‘‘maintenance’’ fees or a distribution fee. There would be no charge for amounts transferred to PBGC of $250 or less. There would be no charge for plans that only send information about missing participant benefits to PBGC.

More…

Overview of Proposed Expanded Missing Participants Program

Proposed Expanded Missing Participants Program FAQs

Read the Proposed Rule

IRS Updates EPCRS Retirement Plan Correction Procedures

The IRS released Revenue Procedure 2016-51 on September 29, 2016, updating its prior Employee Plans Compliance Resolutions System (EPCRS) correction guidance. Significant changes made to the EPCRS system include:

Plan sponsors applying under EPCRS to correct a plan document failure will not longer be permitted to include an application for a favorable determination letter with their EPCRS application. This change is to coordinate EPCRS with the recently announced changes to the IRS determination letter program.
Similarly, individually designed plans using the Self-Correction Program (SCP) to correct significant failures will no longer need to have a current favorable determination letter (since the IRS will no longer issue periodically updated determination letters). Individually designed plans will simply need a favorable determination letter.
Fees associated with the Voluntary Correction Program (VCP) will now be considered user fees and therefore will no longer be set forth in the EPCRS revenue procedure. For VCP submissions made:
- in 2016, refer to Rev. Proc. 2016-8 and Rev. Proc. 2013-12 to determine the applicable user fee.
- after 2016, refer to the annual Employee Plans user fees revenue procedure to determine VCP user fees for that year.
The IRS is changing its approach to determining Audit CAP sanctions. A reasonable sanction will no longer be a negotiated percentage of the maximum payment amount (MPA). Instead, it will be based on all of the facts and circumstances, but will generally not be less than the user fee for a VCP application. The MPA is one of the factors they will consider. Others include:
- the type of failure;
- the number and type of employees affected;
- the steps the plan sponsor took to prevent the error and identify it; and
- the extent to which the error has been corrected before discovery.
The IRS will no longer refund half the paid user fee if there is disagreement over correction in Anonymous Submissions.
The new revenue procedure is effective January 1, 2017. Unlike with prior EPCRS updates, plan sponsors may not elect to voluntarily apply the updated provisions before January 1, 2017.

A Retirement Plan Established by a Church-Affiliated Organization is not an ERISA-Exempt Church Plan (at least in the 9th, 3rd and 7th Circuits)

The 9th Circuit Court of Appeals recently held that, to qualify for the church plan exception to the requirements of the Employee Retirement Income Security Act (ERISA), a church plan (i) must be established by a church or by a convention or association of churches and (ii) must be maintained either by a church or by a church-controlled or church-affiliated organization whose principal purpose or function is to provide benefits to church employees.

The specific holding in in Rollins v. Dignity Health, 2016 WL 3997259 (9th Cir. 2016) was that Dignity Health’s pension plan was subject to the requirements of ERISA and did not qualify for ERISA’s church-plan exemption because it was not originally established by a church, even if it was maintained by a “principal purpose” organization. The 3rd and 7th circuits have reached the same conclusion when confronted with this question. See Kaplan v. Saint Peter’s Healthcare Sys., 810 F.3d 175, 180–81 (3d Cir. 2015); Stapleton v. Advocate Health Care Network, 817 F.3d 517, 523–27 (7th Cir. 2016).

Background

29 U.S.C. § 1003(b)(2) provides that a church plan is exempt from ERISA.
29 U.S.C. § 1002(33)(A) provides that in order to qualify for the church-plan exemption, a plan must be both established and maintained by a church.
29 U.S.C. § 1002(33)(C)(i) provides that a plan established and maintained by a church “includes” a plan maintained by a principal-purpose organization.

The 9th Circuit reasoned that “there are two possible readings of subparagraph (C)(i). First, the subparagraph can be read to mean that a plan need only be maintained by a principal-purpose organization to qualify for the church-plan exemption. Under this reading, a plan maintained by a principal-purpose organization qualifies for the church-plan exemption even if it was established by an organization other than a church. Second, the subparagraph can be read to mean merely that maintenance by a principal purpose organization is the equivalent, for purposes of the exemption, of maintenance by a church. Under this reading, the exemption continues to require that the plan be established by a church.”

The 9th Circuit then held that “the more natural reading of subparagraph (C)(i) is that the phrase preceded by the word “includes” serves only to broaden the definition of organizations that may maintain a church plan. The phrase does not eliminate the requirement that a church plan must be established by a church.”

More

Rollins v. Dignity Health, 2016 WL 3997259 (9th Cir. 2016)

Kaplan v. Saint Peter’s Healthcare Sys., 810 F.3d 175, 180–81 (3d Cir. 2015)

Stapleton v. Advocate Health Care Network, 817 F.3d 517, 523–27 (7th Cir. 2016)

IRS Announces More Changes to its Determination Letter Program

On June 29, 2016, the IRS updated its determination letter program for individually designed tax qualified retirement plans, making a number of significant changes, mostly having to do with (1) when individually designed plans must be amended to comply with changes in the law and other guidance, and (2) when those plans may request a favorable determination letter.

The bottom line for sponsors of individually designed plans is that they will need to amend their plans as frequently as annually to incorporate changes in the law, starting with required changes the IRS identifies in 2016, which will need to be made before December 31, 2018.

Background

Rev. Proc. 2007-44 provided a 5-year remedial amendment cycle (RAC) system for individually designed plans to request a determination letter generally every 5 years. Under that system, plans had to adopt interim amendments by the end of the year in which the amendments became effective. Plans would then have to make final conforming amendments at the end of their 5-year RAC cycle.

In Announcement 2015-19 the IRS stated that the RAC system would end, and a replacement system for the IRC Section 401(b) period would be created. Revenue Procedure 2016-37 ends the RAC system and replaces it with a new approach to the remedial amendment period.

When must individually designed plans be amended?

Interim amendments will no longer be required for individually designed plans. Instead, an individually designed plan’s Code Section 401(b) remedial amendment period for required amendments will be tied to a Required Amendment List (RA List) issued by the IRS, unless legislation or other guidance states otherwise. The RA List is the annual list of all the amendments for which an individually designed plan must be amended to retain its qualified plan status.

IRS will publish the RA List after October 1 of each year. Generally, plan sponsors must adopt any item placed on RA List by the end of the second calendar year following the year the RA List is published. For example, plan amendments for items on the 2016 RA List generally must be adopted by December 31, 2018.

Discretionary amendments will still be required by the end of the plan year in which the plan amendment is operationally put into effect.

What About Operational Compliance?

Revenue Procedure 2016-37 doesn’t change a plan’s operational compliance standards. Employers need to operate their plans in compliance with any change in qualification requirements from the effective date of the change, regardless of the plan’s 401(b) period for adopting amendments. To assist employers, IRS intends to provide annually an Operational Compliance List to identify changes in qualification requirements that are effective during a calendar year.

When may a plan apply for a Determination Letter?
Under Revenue Procedure 2016-37, a plan sponsor can request a determination letter only if any of these apply:

The plan has never received a letter before
The plan is terminating
The IRS makes a special exception

Other Implications

The new determination letter program makes the consequences of failing to timely amend a Plan potentially more dangerous, because the failure could continue for many years before being identified. Therefore, sponsors of individually designed plans that still have the option of converting to a volume submitter or prototype document should revisit that question now.

In addition, if your plan remains individually designed, you ought to incorporate into your annual compliance schedule a check of the RA List in the fall of each year.

Finally, all tax qualified retirement plan sponsors (whether their plan is individually designed or volume submitter or prototype) should incorporate into their annual compliance schedule a check of the IRS Operational Compliance List, to ensure they are operating their plan in compliance with law changes.