Pension News - What's New in 2021?
The following list tracks important guidance that are released during 2021. Except where noted, these items are summarized in detail, with appropriate commentary, in our quarterly newsletter, eRISA Update. See our Newsletters page to sign up for eRISA Update.
Last Updated:
September 29, 2021
Legislative Developments
Treasury Regulations
- Regulations define qualified plan loan offsets eligible for extended rollover period [Citation: Treas. Reg. §1.402(c)-3, 86 F.R. 464 (January 6, 2021)]
Text available at https://www.govinfo.gov/content/pkg/FR-2021-01-06/pdf/2020-27151.pdf
- Final regulations clarify how extensions under IRC §7508A are applied, implement IRC §7508A(d), and eliminate ambiguity in legislative language referring to disaster declarations [Citation: Treas. Reg. §§1.165-11(b)(1) and (h) and 301.7508A-1(g) and (h), 86 F.R. 2607 (June 11, 2021)]
Text available at https://www.govinfo.gov/content/pkg/FR-2021-01-13/pdf/2021-00185.pdf
- IRS proposes to reduce the minimum return requirement from 250 to 10 for mandatory electronic filing on many plan-related reporting forms, effective in 2023 [Citation: Prop. Treas. Reg. §§54.6011-3, 301.6011-2, 301.6011-10, 301.6033-4, 301.6057-3, 301.6058-2, 301.6059-2, 301.6721-1, 86 F.R. 39910 (July 23, 2021)]
Text available at: https://www.govinfo.gov/content/pkg/FR-2021-07-23/pdf/2021-15615.pdf
IRS Guidance
- 2021 annual update of general procedures for obtaining Employee Plans private letter rulings and determination letters, user fees for Employee Plans submissions, including VCP [Citation: Rev. Proc. 2021-4, 2021-1 I.R.B. (January 4, 2021)]
Text available at https://www.irs.gov/pub/irs-irbs/irb21-01.pdf
- IRS issues 2021 covered compensation table [Citation: Rev. Rul. 2021-3, 2021-5 I.R.B. (February 1, 2021; advance release on January 15, 2021)]
Text available at https://www.irs.gov/pub/irs-drop/rr-21-03.pdf
- IRS guidance on legislative changes applicable to cafeteria plans [Citation: Notice 2021-15, 2021-10 I.R.B. (March 8, 2021); advance publication on February 18, 2021)]
Text available at: https://www.irs.gov/pub/irs-drop/n-21-15.pdf
- IRS website provides FAQs regarding the partial termination relief enacted as part of Consolidated Appropriations Act [Citation: Partial Termination of a Qualified Retirement Plan Under Section 209 of the Taxpayer Certainty and Disaster Tax Relief Act of 2020, Coronavirus-related relief for retirement plans and IRAs questions and answers, www.irs.gov (April 27, 2021)]
Text available at:
https://www.irs.gov/newsroom/coronavirus-related-relief-for-retirement-plans-and-iras-questions-and-answers#partial-termination
- Temporary relief that waives physical presence requirement for spousal consent if certain conditions are met is extended to June 30, 2022 [Citation: Notice 2021-40, 2021-?, modifying Notice 2021-03, 2021-2 (January 11, 2021; advance notice on December 22, 2020), and Notice 2020-42, 2020-26 I.R.B. (June 22, 2020)]
Text available at: https://www.irs.gov/pub/irs-drop/n-21-40.pdf
- Latest update of EPCRS procedure allows for expanded SCP to increase benefits, rights, and features, extends SCP correction period for significant failures to 3 years, extends the special 9-1/2 month correction rule for Elective Deferral Failures under auto-enrollment plans through December 31, 2023, raises de minimis failure threshold to $250, and replaces Anonymous VCP submissions in 2022 with pre-submission no-fee conference option [Citation: Rev. Proc. 2021-30, 2021-31 (August 2, 2021; advance release July 16, 2021)]
Text available at https://www.irs.gov/pub/irs-drop/rp-21-30.pdf
- IRS guidance on the pension provisions in the American Rescue Plan Act provide funding relief for single-employer pension plans [Citation: Notice 2021-48, 2021-33 I.R.B. (August 16, 2021; advance release on July 30, 2021)]
Text available at: https://www.irs.gov/pub/irs-drop/n-21-48.pdf
- Cycle 2 opinion letter procedures for §403(b) Pre-approved Plans; procedure modified to more closely resemble procedures for pre-approved qualified plans [Citation: Rev. Proc. 2021-37, 2021-38 I.R.B. (September 21, 2021; advance release on September 1, 2021)]
Text available at: https://www.irs.gov/pub/irs-drop/rp-21-37.pdf
- Interim amendment deadlines for Pre-approved Plans modified to adopt uniform deadline no longer linked to adopting employer’s tax return due date [Citation: Rev. Proc. 2021-38, 2021-38 I.R.B (September 21, 2021; advance release on September 1, 2021)]
Text available at: https://www.irs.gov/pub/irs-drop/rp-21-38.pdf
DOL Regulations
- DOL revises its interpretation of independent contractor status under the FLSA to promote certainty for stakeholders, reduce litigation, and encourage innovation in the economy [Citation: DOL Reg. §§795.100-795.115, 29 C.F.R. Part 795, 86 F.R. 1168 (January 7, 2021)] The DOL has proposed withdrawing this regulation. See the March 12, 2021, entry below,
Text available at https://www.govinfo.gov/content/pkg/FR-2021-01-07/pdf/2020-29274.pdf
- Civil penalty adjustments for 2021 [Citation: DOL Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2021, DOL Reg. §2575.3, 86 F.R. 2964 (January 14, 2021)]
Text available at https://www.govinfo.gov/content/pkg/FR-2020-01-15/pdf/2020-00486.pdf
- DOL rescinds 2020 update of its procedures for non-regulatory Guidance Documents [Citation: 29 C.F.R. Part 89 [removed], 86 F.R. 7237 (January 27, 2021)]
Text available at https://www.govinfo.gov/content/pkg/FR-2021-01-27/pdf/2021-01746.pdf
- DOL will not enforce 2020 regulations regulation the use non-pecuniary factors in a fiduciary’s selection of plan investment or designated investment alternatives, and in exercising proxy voting and other shareholder rights [Citation: Statement Regarding Enforcement of DOL Reg.§2550.404a-1 (March 10, 2021)]
Text available at: https://www.dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/laws/erisa/statement-on-enforcement-of-final-rules-on-esg-investments-and-proxy-voting.pdf
- DOL withdraws regulations that would change standards for determining whether a worker is an employee or an independent contractor under the FLSA [Citation: Independent Contractor Status Under the Fair Labor Standards Act; Withdrawal, 86 F.R. 24303 (May 6, 2021)]
Text available at: https://www.govinfo.gov/content/pkg/FR-2021-05-06/pdf/2021-09518.pdf
- DOL/IRS/PBGC propose modifications to the Form 5500 series to incorporate SECURE Act; conforming proposed modifications to DOL’s reporting regulations [Citation: Proposed Revision of Annual Information Return/Reports, 26 C.F.R. Part 301 and 29 C.F.R. Parts 2520 and 4065, 86 F.R. 51488 (September 15, 2021); Prop. DOL Reg. §§2520.103-1, 2520.103-10, 2520.103-14, 2520.104-51]
Text available at:
https://www.govinfo.gov/content/pkg/FR-2021-09-15/pdf/2021-19714.pdf (revisions to the Form 5500 series)
https://www.govinfo.gov/content/pkg/FR-2021-09-15/pdf/2021-19713.pdf (conforming amendments to DOL’s reporting regulations)
DOL Formal Guidance/Prohibited Transaction Exemptions
PBGC Regulations and Other Guidance
EBSA Advisory Opinions, Field Assistance Bulletins and other informal guidance from the DOL
- Temporary nonenforcement policy for use of PBGC missing participant program to rollover accounts from terminated defined contribution plans (including abandoned plans) [Citation: Field Assistance Bulletin (FAB) 2021-01 (January 12, 2021)]
Text available at: https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/field-assistance-bulletins/2021-01
- Follow-up DOL letter withdraws earlier letter that said criminal convictions under foreign law did not violate prohibition on QPAM criminal convictions under PTE 84-14 [Citation: Letter from Kate O’Scannlain, Solicitor, DOL, to Lisa Bleier, Managing Director & Associate Legal Counsel of the Securities Industry and Financial Markets Association (SIFMA), issued November 3, 2020 (withdrawn March 23, 2021)]
Withdrawal discussed in following article:https://www.erisapracticecenter.com/2021/03/what-happens-abroad-apparently-does-not-stay-abroad-dol-revokes-trump-administration-guidance-that-provided-relief-to-qpams-for-convictions-under-foreign-law/
- Claimant entitled to copy of audio recordings and transcripts of telephone conversations [Citation: DOL Information Letter 06-14-2021 (June 14, 2021)]
Text available at:https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/information-letters/06-14-2021
- FAQs clarify when employee benefit statements must start complying with the interim final rule on lifetime income disclosures [Citation: Temporary Implementing FAQs - Pension Benefit Statements - Lifetime Income Illustrations Interim Final Rule (July 26, 2021)]
Text available at:
https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/temporary-implementing-faqs-lifetime-income-interim-final-rule.pdf
ERISA Litigation
- Divorce decree met the requirements of a QDRO when it specified that all insurance benefits would be paid to the former spouse [Citation: Festini-Steele v. ExxonMobil Corporation, No. 20-1052, ___ F.3d ___ (10th Cir. February 18, 2021)]
Text available at https://www.ca10.uscourts.gov/opinions/20/20-1052.pdf
- Arbitration agreement did not apply to participant’s ERISA §502(a)(2) claims for fiduciary breach because the claims did not “relate to” his employment [Citation: Cooper V. Ruane Cunniff & Goldfarb Inc., No. 17-2805, ___ F.3d ___ (2nd Cir. March 4, 2021)]
Text available at: https://www.ca2.uscourts.gov/decisions/isysquery/ce309246-12c2-4409-94bd-fac1616a78dc/1/doc/17-2805_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/ce309246-12c2-4409-94bd-fac1616a78dc/1/hilite/
- Fees charged by Fidelity to mutual funds in order to be included on Fidelity’s platform of investment options do not make Fidelity a fiduciary with respect to plans that contract with Fidelity [Citation: Wong v. FMR, LLC, No. 20-1286, ___ F.3d ___ (1st Cir. March 5, 2021)]
Text available at: http://media.ca1.uscourts.gov/pdf.opinions/20-1286P-01A.pdf
- Claimant deemed to have exhausted administrative remedies because of plan’s deficient claims procedure [Citation: Theriot v. Building Trades United Pension Trust Fund, No. 20-30126, ___ F.3d ___ (5th Cir. March 12, 2021)]
Text available at: https://www.ca5.uscourts.gov/opinions/unpub/20/20-30126.0.pdf
- Employer may proceed with state law breach of contract, promissory estoppel and fraud claims against ESOP trustee that pulled out of refinancing deal with respect to ESOP loan [Citation: Dansko Holdings, Inc. v. Benefit Trust Co., Nos. 19-3847 & 19-3892, ___ F.3d ___ (3rd Cir. March 16, 2021)]
Text available at: https://www2.ca3.uscourts.gov/opinarch/193847p.pdf
- Ninth Circuit upholds forum selection clause in plan that required suit to be brought where the plan is administered [Citation: In re Becker (Becker v. Wells Fargo), No. 20-72805, ___ F.3d ___ (9th Cir. April 1, 2021)]
Text available at: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/01/20-72805.pdf
- Eleventh Circuit rules that ERISA attorney’s fees cannot be assessed against legal counsel [Citation: Peer v. Liberty Life Assurance Company of Boston, No. 19-13974, ___ F3d ___ (11th Cir. April 6, 2021)]
Text available at: https://media.ca11.uscourts.gov/opinions/pub/files/201913974.pdf
- Named fiduciary cannot be liable for fiduciary breach due to non-fiduciary actions performed by fiduciary’s delegate; electronic requests recognized as a writing; professional negligence and negligent misrepresentation claims against non-fiduciary service provider are not preempted by ERISA [Citation: Bafford v. Northrop Grumman Corp., No. 20-55222, ___ F.3d ___ (9th Cir. April 15, 2021)]
Text available at: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/15/20-55222.pdf
- Dudenhoeffer pleading standard remains elusive as Ninth Circuit rejects claim for failure to disclose nonpublic information about publicly-traded stock based on general economic principles regarding delayed disclosure [Citation: Wilson v. Craver, No. 18-56139, ___ F.3d ___ (9th Cir. April 19, 2021)]
Text available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/19/18-56139.pdf
- PBGC’s denial of lump sum payment requested prior to the company’s filing of a distress termination NOIT from trusteed DB plan was not arbitrary or capricious [Citation: Fisher v. PBGC, No. 20-7063, ___ F.3d ___ (D.C.Cir. April 20, 2021)]
Text available at: https://www.cadc.uscourts.gov/internet/opinions.nsf/C5C55F772DAF955C852586BD004DE0BC/$file/20-7063-1895224.pdf
- California CalSavers program, providing an IRA program to employees of employers that do not offer an ERISA plan, held not to be preempted by ERISA [Citation: Howard Jarvis Taxpayers Association v. California Secure Choice Retirement Savings Program, No. 20-15591, ___ F.3d ___ (9th Cir. May 6, 2021)]
Text available at: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/06/20-15591.pdf
- Eighth Circuit instructs lower court on proper application of regulatory definition of educational organization to determine eligibility for the IRC §514(c)(9)(A) exemption for leveraged real estate investments by qualified organizations [Citation: Mayo Clinc v. U.S., No. 19-3189, ___ F.3d ___ (8th Cir. May 13, 2021)]
Text available at: https://ecf.ca8.uscourts.gov/opndir/21/05/193189P.pdf
- Equitable estoppel, whether used affirmatively or as a defense, cannot result in a contradiction of an ERISA plan’s terms [Citation: Wong v. Flynn-Kerper, No. 19-56289, ___ F.3d ___ (9th Cir. June 7, 2021)]
Text available at: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/07/19-56289.pdf
- Tenth Circuit agrees that fiduciaries breach duty to plan by failing to monitor recordkeeping fees that were a percentage of plan assets without a cap; lower court’s use of recordkeeper’s credit calculations to plan to compute damages was reasonable [Citation: Ramos v. Banner Health, No. 20-1231, ___ F.3d ___ (10th Cir. June 11, 2021)]
Text available at: https://www.ca10.uscourts.gov/opinions/20/20-1231.pdf
- Allegations if proven true could establish Aetna as a fiduciary because its unauthorized inclusion of administrative fees in plan would establish discretionary control over plan administration; summary judgment avoided and case will proceed to trial [Citation: Peters v. Aetna, Inc., No. 19-2085, ___ F.3d ___ (4th Cir. June 22, 2021)]
Text available at: https://www.ca4.uscourts.gov/Opinions/192085.P.pdf
- Federal common law claim for successor liability not sufficient to confer federal jurisdiction [Citation: East Central Illinois Pipe Trades Health and Welfare Fund and Plumbers and Steamfitters U.a. Locals 63 v. Prather Plumbing & Heating, Inc., No. 20-2525, ___ F.3d ___ (7th Cir. July 7, 2021)]
Text available at: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D07-07/C:20-2525:J:Scudder:aut:T:fnOp:N:2730142:S:0
- ERISA does not preempt state law claims brought by bankruptcy creditors against directors and officers who allegedly inflated the corporation’s stock, even though those actions also affected the ERISA plan maintained by the corporation [Citation: Halperin v. Davis, No. 20-2793, ___ F.3d ___ (July 28, 2021)]
Text available at:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D07-28/C:20-2793:J:Hamilton:aut:T:fnOp:N:2740159:S:0
- Fourth Circuit joins Second and Ninth Circuits in recognizing anti-assignment exception for garnishment under federal Mandatory Victims Restitution Act of 1996 [Citation: U.S. v. Frank, No. 20-6706, ___ F.3d ___ (4th Cir. August 10, 2021)]
Text available at: https://www.ca4.uscourts.gov/Opinions/206706.P.pdf
- Chapter 13 debtor may not start 401(k) contributions that will be exempt from disposable income under their creditor repayment plan where no 401(k) contributions were made for more than six months before the bankruptcy petition was filed [Citation: Penfound v. Ruskin, No. 19-2200, ___ F.3d ___ (6th Cir. August 10, 2021)]
Text available at: https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0179p-06.pdf
- Illinois law clearly treats charter schools as public schools, so ERISA claims cannot be brought with respect to public school plan that covers charter school employees [Citation: Graham v. Board of Education of the City of Chicago, No. 19-2745, ___ F.3d ___ (7th Cir. August 10, 2021)]
Text available at:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-10/C:19-2745:J:Easterbrook:aut:T:fnOp:N:2745950:S:0
- Allegations regarding imprudent use by a 403(b) plan trustee of retail mutual fund shares over institutional shares were sufficient to avoid dismissal and proceed to trial [Citation: Sacerdote v. New York University, No. 18-2707-cv, ___ F.3d ___ (2nd Cir. August 16, 2021)]
Text available at:
https://www.ca2.uscourts.gov/decisions/isysquery/ece192fb-3184-4b1b-b465-f7554f9563fe/1/doc/18-2707_complete_opinion.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/ece192fb-3184-4b1b-b465-f7554f9563fe/1/hilite/
Miscellaneous Guidance
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