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Pension News in 2016

The following list tracks important guidance that has been released since January 1, 2016. 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.

Legislative Developments

  • No entries

Treasury Regulations

  • Proposed regulations would amend the reasonable normal retirement age regulations to revise the safe harbors for governmental plans, postpone the effective date for governmental plans, and clarify when an NRA definition is needed in a governmental plan [Citation: Prop. Treas. Reg. §1.401(a)-1(b)(2)(v) and (4), 81 F.R. 4599-4605 (January 27, 2016)]
    Text available at http://1.usa.gov/1WONDTH
  • Proposed regulations would provide testing relief for certain closed DB plans, and modify testing rules for DB/DC plans; proposal to require allocation formulas or benefit formulas used in general nondiscrimination testing to reflect a reasonable classification withdrawn, [Citation: Prop. Treas. Reg. §§1.401(a)(4)-4(d)(8), 1.401(a)(4)-8(b)(1), 1.401(a)(4)-9(b)(2), 1.401(a)(4)-12, and 1.401(a)(4)-13(a)(4), 81 F.R. 4976-4986 (January 29, 2016); Prop. Treas. Reg. §§1.401(a)(4)-2(c), 1.401(a)(4)-3(c) withdrawn (see Announcement 2016-16)]
    Text available at http://1.usa.gov/1Sg03VO (includes withdrawn portion)
  • Proposed regulations would broaden and simplify the FBAR filing requirements for certain persons who only have signature or other authority over foreign accounts, but no financial interest in such accounts [Prop. FinCEN Reg. §§1010.306(c) and (e), 1010.350(a) and (f)(2) and 1010.420, 81 F.R. 12613-12622 (March 10, 2016)]
    Text available at http://1.usa.gov/1QOFOZX
  • Final regulations regarding the approval of a proposed benefit suspension under a multiemployer defined benefit plan in critical and declining status, as permitted under IRC §432(e)(9) [Citation: Treas. Reg. §1.432(e)(9)-1, 81 F.R. 25540-25573 (April 28, 2016), and Treas. Reg. §1.432(e)(9)-1(d)(8), 81 F.R. 27011-27015 (May 5, 2016)]
    Text available at http://1.usa.gov/1VWwc5K (April 28, 2016), and http://1.usa.gov/1Tp1n3B (May 5, 2016)
  • IRS finalizes change in designated Roth account regulations to eliminate “separate determination” rule when determining the character of partial direct rollovers of plan disbursements that include both after-tax and pre-tax amounts distributed from a designated Roth account [Citation: Treas. Reg. §1.402A-1, Q&A-5(a), 81 F.R. 31165-31166 (May 18, 2016)]
    Text available at http://1.usa.gov/1st4FwG
  • Proposed regulations under IRC §409A would modify certain sections of the 2007 final regulations dealing with the definition of deferred compensation, deferral elections and permissible payments, and replace part of the 2008 proposed regulations on income inclusion under IRC §409A(a) [Citation: Prop. Treas. Reg. §§1.409A-1(a)(4), (b)(1), (b)(3), (b)(4), (b)(5), (b)(9), (b)(11), (b)(13), (h)(4), (h)(5), (q), 1.409A-2(b)(2)(i), 1.409A-3(b), (d), (i)(5), (j)(1), (j)(2), (j)(4)(iii)(B), (j)(4)(ix), (j)(4)(xiii), 1.409A-4(a)(1)(ii)(B), and 1.409A-6(b), 81 F.R. 40569-40584 (June 22, 2016)]
    Text available at http://1.usa.gov/28Ny63V
  • Proposed amendments to IRC §457 regulations would update the regulations for law changes enacted since the publication of the 2003 regulations, address exceptions under IRC §457(e) and provide clarifications of the 2003 regulations [Citation: Prop. Treas. Reg. §§1.457-1, 1.457-2, 1.457-4, 1.457-6, 1.457-9, 1.457-10, 1.457-11, 1.457-12 and 1.457-13, 81 F.R. 40548-40569 (June 22, 2016)]
    Text available at http://1.usa.gov/28QTOqE
  • Regulations make it simpler for a defined benefit plan to offer a payment option consisting of a partial annuity with lump sum remainder [Citation: Treas. Reg. §1.417(e)-1(d)(7) and (8), 81 F.R. 62359-62365 (September 9, 2016)]
    Text available at http://bit.ly/2cPdbDP
  • Proposed regulations would modify fractions rule for real estate partnerships that include tax-exempt partners (qualified organizations) [Citation: Prop. Treas. Reg. §1.514(c)-2, 81 F.R. 84518-84526 (November 23, 2016)]
    Text available at http://bit.ly/2gPZ0Nb
  • Proposed regulations would update IRC §417(e)(3) regulations to incorporate PPA 2006, clarify application of stability periods to mortality assumptions and the use of mortality discounts, and eliminate outdated rules [Citation: Prop. Treas. Reg. §1.417(e)-1(d), 81 F.R. 85190-85196 (November 25, 2016)]
    Text available at http://bit.ly/2gcXsvb
  • Mortality tables for post-2017 plan years; expanded availability of substitute mortality tables [Citation: Prop. Treas. Reg. §§1.430(h)(3)-1, 1.430(h)(3)-2, and 1.431(c)(6)-1, 81 F.R. 95911-95929 (December 29, 2016)]
    Text available at http://bit.ly/2iuuZCF

IRS Guidance

  • Annual update of user fee procedure for 2016 [Citation: Rev. Proc. 2016-8, 2016-1 I.R.B. (January 4, 2016)]
    Text available at https://www.irs.gov/irb/2016-01_IRB/ar14.html
  • Annual update of determination letter procedure for 2016 [Citation: Rev. Proc. 2016-6, 2016-1 I.R.B. (January 4, 2016)]
    Text available at https://www.irs.gov/irb/2016-01_IRB/ar12.html
  • Expiration dates on determination letters no longer apply, April 30, 2017, deadline for individually-designed defined contribution plans to elect pre-approved plan cycle, Cycle A clarification for related employers [Notice 2016-3, 2016-3 (January 19, 2016)]
    Text available at http://1.usa.gov/1O6D0pI
  • IRS provides guidance for adopting mid-year amendments to a safe harbor 401(k) plan and for changing information in the safe harbor notice during the plan year [Citation: Notice 2016-16] Text available at http://1.usa.gov/1PJU76S
  • Voluntary closing agreement option available to Pre-Approved Plan sponsors who have missed April 30, 2016, restatement deadline for 20 or more clients [Citation: Umbrella Closing Agreement Program, IRS Employee Plan News, Issue No. 2016-5 (April 4, 2016)]
    Text available at http://1.usa.gov/1qleUCI
  • IRS concerns about plan designs involving short service employees resurfaces; regulations must be “reasonably interpreted” to prevent discrimination in favor of HCEs [Citation: Discriminatory Plan Designs Using Short Service, IRS Employee Plan News, Issue No. 2016-5 (April 4, 2016)]
    Text available at http://1.usa.gov/1MOF9Lr
  • Proposed regulations that would require allocation formulas or benefit formulas to reflect reasonable classification will be withdrawn [Citation: Announcement 2016-16 (April 14, 2016)]
    Text available at http://1.usa.gov/1VYXvLw
  • Procedures for requesting approval of a proposed benefit suspension under a multiemployer defined benefit plan in critical and declining status, as permitted under IRC §432(e)(9); model notice to participants provided [Citation: Rev. Proc. 2016-27, I.R.B. 2016-19 (May 9, 2016)]
    Text available at http://1.usa.gov/1VV4x5m
  • IRS addresses the IRC §72 recovery of basis rules in the context of a “phased retirement” payment under a defined benefit plan [Citation: Notice 2016-39, 2016-26 I.R.B. (June 27, 2016)]
    Text available at http://1.usa.gov/1XMCiHF
  • IRS revamps remedial amendment period rules and amendment cycles to reflect constriction of determination letter program; 5-year cycles eliminated for individually-designed plans [Citation: Rev. Proc. 2016-37, 2016-29 I.R.B. (July 14, 2016)]
    Text available at http://1.usa.gov/29bvlwg
  • IRS provides relief from certain verification procedures that may be required for participant loans and hardship distributions to victims of Louisiana Storms [Citation: Announcement 2016-30, I.R.B. 2016-37 (September 12, 2016)]
    Text available at http://bit.ly/2c2y6QB
  • IRS provides self-certification alternative to applying for extension on 60-day rollover period under certain circumstances [Citation: Rev. Proc. 2016-47, I.R.B. 2016-37 (September 12, 2016)] Text available at http://bit.ly/2bo8IUv
  • Static mortality tables released for valuation dates occurring in 2017; applicable to IRC §417(e) determinations for annuity starting dates that occur in stability periods beginning in 2017 [Citation: Notice 2016-50, 2016-38 I.R.B. (September 19, 2016)]
    Text available at http://bit.ly/2cuyifk
  • Latest update of the EPCRS procedure incorporates the changes made by Rev. Procs. 2015-27 and 2015-28, revises the procedure to incorporate the contraction of the determination letter program, modifies the sanction process under Audit CAP [Citation: Rev. Proc. 2016-51, 2016-42 I.R.B. (October 17, 2016), advance release by IRS on September 29, 2016)]
    Text available at http://bit.ly/2dFrZBm
  • IRS provides relief from certain verification procedures that may be required for participant loans and hardship distributions to victims of Hurricane Matthew [Citation: Announcement 2016-39, I.R.B. 2016-45 I.R.B. (November 7, 2016) (advance release on October 21, 2016)]
    Text available at http://bit.ly/2f9wfgk
  • Adjusted dollar limits for 2017 [Citation: Notice 2016-62, 2016-46 I.R.B. (November 14, 2016) (advance release on October 27, 2016)]
    Text available at http://bit.ly/2dRpxLJ
  • IRS explains applicability of market rate of return rules to pension equity plans [Citation: Notice 2016-67, 2016-47 I.R.B. (November 21, 2016); advance release on November 7, 2016]
    Text available at http://bit.ly/2fv1r5P
  • 2016 Required Amendment List issued by the IRS [Citation: Notice 2016-80, 2016-52 I.R.B. (December 26, 2016) (advance release on December 14, 2016)]
    Text available at http://bit.ly/2hBptRB
  • IRS guidance on user fee waiver for certain small employers that submit for determination letters after 2016 [Citation: Notice 2017-1, 2017-2 I.R.B. (January 9, 2017) (advance release on December 19, 2016)]
    Text available at http://bit.ly/2i8MfwC
  • DOL expands exception for State-mandated IRA savings programs for nongovernmental employers to permit establishment of such programs by political subdivisions of a State [Citation: DOL Reg. §2510.3-2(h), 81 F.R. 92639-92654 (December 20, 2016)]
    Text available at http://bit.ly/2gYnGBw

IRS Chief Counsel Advice, Private Letter Rulings and Technical Advice Memoranda

  • Cash balance plans that still use IRC §417(e) methodology to compute lump sums may use IRC §411(b)(5)(E) age discrimination test, but, for post-2016 plan years, may not rely on the safe harbor age discrimination test under IRC §411(b)(5)(A) [Citation: CCA 201617006 (March 28, 2016)]
    Text available at http://1.usa.gov/1WKL3Qk
  • Chief Counsel of IRS confirms use of statutory entry dates for determining otherwise excludable employees; recognizes acceptability of other identification methods [Citation: CCA 201615013 (April 8, 2016)]
    Text available at http://1.usa.gov/1WV366r
  • Transfers to qualified replacement plan under IRC §4980(d) could be made in two steps due to contingent litigation liability involving the terminated defined benefit plan; termination date not affected [Citation: PLR 201626003]
    Text available at http://bit.ly/2cpUpRf
  • Court order that IRA benefits should be paid to trust did not make trust beneficiaries designated beneficiaries under IRC §401(a)(9) because order was entered after participant’s death [Citation: PLR 201628006]
    Text available at http://bit.ly/29uxUdq
  • Employees of LLC that is a disregard entity and owned solely by a tax-exempt organization are eligible to participate in a 403(b) plan; must be taken into account under universal availability rule [Citation: CCA 201634021 (July 11, 2016)]
    Text available at http://bit.ly/2bSC0uX
  • 25% match added to electively-deferred salary was of material value resulting in recognition of the substantial risk through the elected date of payment [Citation: CCA 201645012]
    Text available at http://bit.ly/2eM9CNk

DOL Regulations

  • Final regulations expand the definition of a fiduciary with respect to persons who provide investment advice for a fee [Citation: DOL Reg. §2510.3-21, 81 F.R. 20946-21002 (April 8, 2016)]
    Text available at http://1.usa.gov/1Whtl6P
  • Substantial revisions of the Form 5500 series proposed for 2019 reporting year and corresponding amendments to DOL regulations proposed [Citation: Proposed Revision of Annual Information Return/Reports (Joint Release from DOL/IRS/PBGC), 81 F.R. 47534 (July 21, 2016); Prop. DOL Reg. §§2520.103-1 - 2520.103-4, 2520.103-6, 2520.103-8, 2520.103-10, 2520.103-20, 2520.104-26, 2520.104-42, 2520.104b-10, 2590.715-2715A, 2590.715-2717, 81 F.R. 47534-47681 (July 21, 2016)]
    Text available at http://bit.ly/29WfUuv (Form 5500 revisions); http://bit.ly/29WfUuv (Proposed regulations); http://bit.ly/29Fdxcl (DOL Fact Sheet)
  • DOL adds new exemption from the definition of an ERISA employee pension benefit plan for an auto-enrollment IRA savings program mandated by State law for nongovernmental employees; proposes to expand exception to allow for IRA savings programs mandated by political subdivisions of a State [Citation: DOL Reg. §2510.3-2(a) and (h), 81 F.R. 59464-59477 (August 30, 2016); Prop. DOL Reg. §2510.3-2(h), 81 F.R. 59581-59592 (August 30, 2016)]
    Text available at http://bit.ly/2c5GiOL (final regulation), http://bit.ly/2bGnLJu (proposed amendment)
  • DOL updates claims procedures for disability benefits to coordinate with ACA procedures [Citation: DOL Reg. §2560.503-1(b)(7), (g)(1)(v), (g)(1)(vii) and (viii), (h)(4), (i)(3)(i), (j)(4), (j)(5),(j)(6), (j)(7), (l), (m)(4), (o) and (p), 81 F.R. 92316-92343 (December 19, 2016)]
    Text available at http://bit.ly/2hAGxXj
  • Interpretive bulletin outlines DOL positions on proxy voting, statements of proxy voting policy, and shareholder activism [Citation: DOL Reg. §2509.2016-01 (Interpretive Bulletin 2016-1), 81 F.R. 95879-95884 (December 29, 2016)]
    Text available at http://bit.ly/2iJ5yRd

DOL Formal Guidance/Prohibited Transaction Exemptions

  • DOL’s Wage and Hour Division issues interpretation of joint employment relationships [Citation: Administrator’s Interpretation No. 2016-1 (January 20, 2016)]
    Text available at http://1.usa.gov/1ZOLGGC
  • New class exemptions and modifications to existing exemptions coordinate with final investment advice fiduciary regulations [Citation: Best Interest Contract Exemption, 81 F.R. 21002-21089 (April 8, 2016), Class Exemption for Principal Transactions in Certain Assets between Investment Advice Fiduciaries and Employee Benefit Plans and IRAs, 81 F.R. 21089-21139 (April 8, 2016), Amendments to Class Exemptions 75–1, 77–4, 80–83 and 83–1, 81 F.R. 21208-21221 (April 8, 2016), Amendment to and Partial Revocation of PTE 86–128 and Amendment to and Proposed Partial Revocation of PTE 75–1, 81 F.R. 21181-21208 (April 8, 2016), Amendment to PTE 75-1, Part V, 81 F.R. 21139-21147 (April 8, 2016), and Amendment to and Partial Revocation of PTE 84-24, 81 F.R. 21147-21181 (April 8, 2016)]
    Text available at http://1.usa.gov/1PYn2NS (Best Interest Contract Exemption), http://1.usa.gov/1oIwjDG (Principal Transactions Exemption), http://1.usa.gov/1PYmHe6 (Modifications to PTE 75-1, PTE 77-4, PTE 80-83 and PTE 83-1), http://1.usa.gov/1S1cEcF (Modifications to PTE 86-128 and PTE 75-1), http://1.usa.gov/1S1cAtD (Modifications to PTE 75-1, Part V), and http://1.usa.gov/1qxO1vc (Modifications to PTE 84-24)
  • Clarifications adopted to the Best Interest Contract Exemption and the Principal Transactions Exemption [Citation: Technical corrections to the Best Interest Contract Exemption, 81 F.R. 44773-44784 (July 11, 2016); Technical corrections to the Principal Transactions Exemption, 81 F.R. 44784-44792 (July 11, 2016)]
    Text available at http://bit.ly/29Niorx (Best Interest Contract Exemption) and http://bit.ly/2adxDgm (Principal Transactions Exemption)

PBGC Regulations and Other Guidance

  • Final regulations incorporate statutory changes made by MAP-21 and HATFA and technical guidance issued by the PBGC with respect to such statutes; additional waivers added [Citation: PBGC Reg. §§4010.2, 4010.4, 4010.8 and 4010.11, 81 F.R. 15432-15440 (March 23, 2016)]
    Text available at http://1.usa.gov/1UFSOH5
  • PBGC proposes to add optional participation in missing participant transfer program for most DC plans and non-covered DB plans; modify missing participant procedures for terminated Title IV-covered plans; and extends missing participant procedures to terminated multiemployer DB plans [Citation: Prop. PBGC Reg. §§4050.101-4050.407, 81 F.R. 64700-64726 (September 20, 2016)]
    Text available at http://bit.ly/2dgBSZ1. Also see http://bit.ly/2coTf4S for FAQs about the proposal and http://bit.ly/2dmP5iW for a draft of the reporting forms (and instructions) that will be used.
  • Regulations cut penalties in half for late payment of premiums; substantially reduced penalty for plans with good premium compliance records that correct promptly upon notification by PBGC [Citation: PBGC Reg. §4007.8, 81 F.R. 65542-65545 (September 23, 2016)]
    Text available at http://bit.ly/2cqNm7s

EBSA Advisory Opinions, Field Assistance Bulletins and other informal guidance

  • DOL issues first round of FAQs on the conflict-of-interest exemptions issued in conjunction with the expanded definition of investment advice fiduciary [Citation: Conflict of Interest Exemptions FAQs (made public on October 27, 2016)]
    Text available at http://bit.ly/2fn686v

ERISA Litigation

  • Investment platform provider was not acting in a fiduciary capacity when it negotiated its management and investment fees with the plan sponsor, resulting in dismissal of fiduciary breach action for excessive fees [Citation: McCaffree Financial Corp. v. Principal Life Ins. Co., 811 F.3d 998 (8th Cir. January 8, 2016)]
    Text available at http://1.usa.gov/1ONNA8Q
  • Supreme Court clarifies that enforcement of a plan’s remedy for equitable recovery against third-party payments made to participant is limited to identifiable funds [Citation: Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 136 S.Ct. 651 (January 20, 2016)]
    Text available at http://1.usa.gov/1NmZroP
  • Ninth Circuit reversed for the second time by the Supreme Court; specific pleading standards discussed by the Supreme Court regarding fiduciary claims involving the retention of employer stock as an investment option [Citation: Amgen, Inc. v. Harris, 136 S.Ct. 758 (January 25, 2016)]
    Text available at http://1.usa.gov/20pkOPQ
  • Administrator’s interpretation that sign-on bonus was not part of plan compensation used to determine benefits was not arbitrary or capricious [Citation: Ingram v. Terminal Railroad Association of St. Louis Pension Plan for Nonschedule Employees, 812 F.3d 628 (8th Cir. January 29, 2016)]
    Text available at http://1.usa.gov/1nQZynn
  • Company’s delivery of prospectuses regarding top hat plan put plaintiffs on notice of vesting issues that were the subject of the claim, starting the statute of limitations [Citation: Bond v. Marriott International, Inc., Case No. 15-1160, 637 Fed.Appx. 726 (4th Cir. January 29, 2016)]
    Text of available at http://1.usa.gov/20718hn
  • Plan language was not sufficiently specific to confer discretion on the plan administrator to interpret the plan document, so de novo review of administrator’s decision was warranted [Citation: Stephanie v. Blue Cross Blue Shield of Massachusetts HMO Blue, Inc., Case 813 F.3d 420 (1st Cir. February 17, 2016)]
    Text available at http://1.usa.gov/1Re1zEB
  • Vermont law requiring reporting of claims information preempted by ERISA [Citation: Gobeille v. Liberty Mutual Insurance Co., 136 S.Ct. 936 (March 1, 2016)]
    Text available at http://1.usa.gov/1RPalJo
  • Plan-imposed statute of limitations not applicable because denial of claim letter failed to state the plan’s limitation on bringing suit; per se prejudicial to plaintiff [Citation: Santana-Diaz v. Metropolitan Life Insurance Co.,816 F.3d 172 (1st Cir. March 14, 2016)]
    Text available at http://1.usa.gov/1RNTZOi
  • A church agency, as described in ERISA §3(33)(C)(i), may maintain but cannot establish a church plan [Citation: Stapleton v. Advocate Health Care Network, 817 F.3d 517 (7th Cir. March 17, 2016)]
    Text available at http://1.usa.gov/1MsgMhc
  • Second Circuit: alleged overvaluations and alleged riskiness are two sides of the same coin; no duty for appointing fiduciary to inform appointee of private information. The Second Circuit dismissed claims in a suit regarding retention of employer stock where there were claims based on both public and private information. See In re Lehman Brothers Securities Litigation, 817 F.3d 56 (2nd Cir. March 18, 2016)
    Text available at http://bit.ly/2dSK3MB
  • De novo standard of review applies when plan fails to adopt claims procedures that are in full compliance with the law, except for inadvertent and harmless deviations [Citation: Halo v.Yale Health Plan, 819 F.3d 42 (2nd Cir. April 12, 2016)]
    Text available at http://1.usa.gov/1SioYZi
  • Burden of proof shifts to plan if claimant makes prima facie case of benefit entitlement, in spite of deferential standard of review with respect to plan administrator’s benefits claim denial [Citation: Estate of Bruce H. Barton v. AFT Security Services Pension Plan, 820 F.3d 1060 (9th Cir. April 21, 2016)]
    Text available at http://1.usa.gov/1rqnoJj
  • Fifth Circuit addresses procedural issues regarding fiduciary breach suits involving ESOP transactions [Citation: Perez v. Bruister, 823 F.3d 250 (5th Cir. May 3, 2016)]
    Text available at http://1.usa.gov/1XcmYCg
  • Consultant did not assume fiduciary status merely by calculating participant’s projected retirement benefit upon participant’s request [Citation: Lebahn v. National Farmers Union Uniform Pension Plan, 828 F.3d 1180 (10th Cir. July 11, 2016)]
    Text available at http://bit.ly/2acpcOB
  • ERISA equitable relief for retaliatory discharge under ERISA §510 may not duplicate jury award in parallel State law claim; interaction between right to jury trial under Seventh Amendment and resolution of ERISA equitable relief addressed [Citation: Teutscher v. Woodson, 835 F.3d 936 (9th Cir. August 26, 2016)]
    Text available at http://bit.ly/2cLnRSC
  • Beneficiaries of participant who died before annuity starting date but after his last day of work were not entitled to benefits under the guaranteed payment period under the annuity; release from claims signed by participant to receive early retirement incentive precluded equitable relief claim by beneficiaries [Citation: O’Shea v. UPS Retirement Plan, 837 F.3d 67 (1st Cir. September 13, 2016)]
    Text available at http://bit.ly/2cEJssb
  • Plans maintained by entity involved in securities litigation are not considered to be “affiliates” of the employer and may share in the litigation settlement [Citation: In re American International Group, Inc. Securities Litigation (Rothstein v. American Internal Group, Inc. Incentive Savings Plan, et al), 837 F.3d 195 (2nd Cir. September 20, 2016)]
    Text available at http://bit.ly/2dRZCip

Miscellaneous Guidance

  • In a Q&A follow-up to SEC Release 33-4790, the SEC discusses the types of employer involvement in the offering of a brokerage window under a plan that could raise SEC registration issues. [Citation: Compliance and Disclosure Interpretations (“C&DIs”) of the SEC, Question 139.33 (September 22, 2016)]
    Text available at http://bit.ly/2cT4SlM

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