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[Official Guidance] Advance Information Copies of 2017 Form 5500 Series
Form 5500 Annual Return/Report of Employee Benefit Plan Instructions IRS Information on Schedule R Form 5500-SF Annual Return/Report of Small Employee Benefit Plan Instructions IRS Information on Schedule R Schedule A -- Insurance Information Schedule C -- Service Provider Information Schedule D -- DFE/Participating Plan Information Schedule G -- Financial Transaction Schedules Schedule H -- Financial Information Schedule I -- Financial Information -- Small Plan Schedule MB -- Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actuarial Information Schedule R -- Retirement Plan Information Schedule SB -- Single-Employer Defined Benefit Plan Actuarial Information (Internal Revenue Service [IRS]; Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]; Pension Benefit Guaranty Corporation [PBGC])[...]



[Official Guidance] Agencies Release Advance Copies of Form 5500 Annual Return/Report for 2017
"[EBSA], the IRS, and the [PBGC] today released advance informational copies of the 2017 Form 5500 annual return/report and related instructions. The 'Changes to Note' section of the 2017 instructions highlight important modifications to the Form 5500 and Form 5500-SF and their schedules and instructions. Modifications are as follows ...
  • IRS-only questions that filers were not required to complete on the 2016 Form 5500 have been removed from the Form 5500, Form 5500-SF and Schedules ...
  • The instructions for authorized service provider signatures have been updated to reflect the ability for service providers to sign electronic filings on the plan sponsor and Direct Filing Entity (DFE) lines ... in addition to signing on behalf of plan administrators.
  • The instructions have been updated to reflect an increase in the maximum civil penalty amount assessable under [ERISA] section 502(c)(2) ...
  • Line 4 of the Form 5500 and Form 5500-SF have been changed to provide a field for filers to indicate the name of the plan has changed....
  • The instructions for line 6c have been updated to add mortality codes for several variants of the RP-2014 mortality table and to add a description of the mortality projection technique and scale to the Schedule MB, line 6 -- Statement of Actuarial Assumptions/Methods.
  • Line 6c has been modified to add a new question for defined benefit plans that answer 'Yes' to the existing question about whether the plan is covered under the PBGC insurance program."
(Internal Revenue Service [IRS]; Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]; Pension Benefit Guaranty Corporation [PBGC])



New, Free Daily Publication: The Message Boards Digest
Subscribe to the new, free Message Boards Digest, sent daily by email. You'll get a digest of all new topics on the BenefitsLink message boards. You'll see the number of times each topic has been viewed, and how many replies have been posted to it. (Some topics are included in the BenefitsLink newsletters, but most are not.) Subscribe now. (BenefitsLink)



Latest SOA Analysis Shows Year Over Year Increase in Mortality
"Reflecting this change, SOA stated that 'most 2017 pension obligations calculated using Scale MP-2017 (with a discount rate of 4.0%) are anticipated to be approximately 0.7% to 1.0% lower than those calculated using Scale MP-2016.'... IRS said it intends to (more or less) annually review applicable mortality improvement assumptions as they are revised by the SOA. It seems unlikely -- notwithstanding that the new 2017 SOA scale has been published now (in 2017), before the IRS regulation's 2018 effective date -- that IRS will update its rules for 2018." (October Three Consulting)



Impact of Borrowing from Your Retirement Plan
"This calculator can help you make a more informed decision about whether a loan is the right approach for your financial situation." (Smart About Money)



[Guidance Overview] Puerto Rico Treasury Department Finally Grants Relief to Participants Affected by Hurricane Maria (PDF)
"After a long and tumultuous process, and 56 days after Hurricane Maria hit Puerto Rico, the Puerto Rico Treasury Department issued Administrative Determination No. 17-29 to grant relief on eligible distributions (including hardship withdrawals) and plan loans by participants in Puerto Rico tax qualified retirement plans who were affected by Hurricane Maria." (Groom Law Group)



[Official Guidance] Text of Puerto Rico Treasury Administrative Determination No. 17-29: Rules Applicable to Distributions by Qualified Retirement Plans and Individual Retirement Accounts Due to Hurricane Maria
"Eligible Individuals may choose to receive Eligible Distributions independently of other forms of payment available under the Retirement Plan or IRA. In addition, such Eligible Individuals who receive an Eligible Distributorship do not have to be subject to a restriction period in the continuation of their contributions to the Retirement Plan or the IRA after the distribution is completed.... [E]ligible expenses are considered all those expenses that an individual will incur to correct losses or damages suffered by Hurricane Maria for Puerto Rico and extraordinary and unforeseen expenses to cover basic needs as a result of the disaster caused by said phenomenon.... [T]he related expenses may have been incurred by the Eligible Individual, his or her spouse, descendants or ascendants.... During the Eligible Period, the approval and disbursement of loans to participants of a Retirement Plan is permissible, even if at the time the loan is completed, said retirement plan does not provide for them, subject to the plan being amended ... to adopt such loans." [Translation provided by Google Translate; official Spanish-language document is available online.] (Puerto Rico Departamento de Hacienda)



U.S. Single Premium Pension Buy-Out Sales Post Record-Breaking Results for Second Consecutive Quarter
"U.S. single premium pension buy-out product sales were $6.4 billion in the third quarter of 2017, a 7 percent increase compared with prior year. This is the tenth consecutive quarter of sales over $1 billion ... Year-to-date, single premium buy-out product sales were $11.9 billion, 47 percent higher than the same period in 2016." (LIMRA Secure Retirement Institute)



Participants Say More Information About Plan Investment Fees Would Be Useful
"[N]early seven in 10 survey respondents in employer-sponsored retirement plans said they were at least somewhat familiar with their plan's fees, while 31% were not at all familiar with the fees. Roughly two-thirds had not read any investment fee disclosure in the previous year.... Of the one-third who had read a fee disclosure, nearly seven in 10 said they found the information understandable ... Roughly four in five participants said it would be at least somewhat useful to have additional information about investment fees." (PLANSPONSOR)



[Guidance Overview] IRS Guidance on Missing Plan Participants and Required Minimum Distributions
"Unlike the DOL, the IRS's [October 19] administrative enforcement guidance ... does not require the administrator to identify and contact the missing participant's designated beneficiary. Moreover, the IRS guidance requires the use of one of [three] search methods ... [T]he DOL does not require that these search methods be used in all cases ... It is not known whether the DOL will give any deference to the IRS's position on what constitutes 'reasonable efforts' to locate missing participants." (Baker Botts L.L.P.)



Defined Benefit Plans: 10 New Definitions for 2018
"As changes occur in the defined benefit plan landscape, our business language needs to keep up.... Outdated terms may lead to excessive risk taking and time wasted on short-term issues that have little or no bearing on pension plan success. These new definitions can help improve how sponsors, consultants and managers address pension plan challenges as we head into 2018." (Willis Towers Watson)



[Official Guidance] Defined Contribution LRM and Information Package, October 2017 (PDF)
123 pages. Oct. 2017, published online Nov. 14, 2017. "This information package contains samples of plan provisions that have been found to satisfy certain specific requirements of the Internal Revenue Code, taking into account changes in the plan qualification requirements, regulations, revenue rulings, and other guidance in the 2017 Cumulative List of Changes in Plan Qualification Requirements (Notice 2017-37)." [Also online: 130-page red-lined version showing changes from the previous (October 2011) version.] (Internal Revenue Service [IRS])



Pension Plan Limitations for 2018
"These changes will take effect on January 1, 2018, and are based on the fact that the Consumer Price Index increased by 2.2% last year. Many of the limitations are being increased, while others remain unchanged." (Trucker Huss)



[Official Guidance] Text of IRS Notice 2017-69: Weighted Average Interest Rates, Yield Curves, and Segment Rates Applicable for November 2017 (PDF)
"This notice provides guidance on the corporate bond monthly yield curve, the corresponding spot segment rates used under Section 417(e)(3), and the 24-month average segment rates under Section 430(h)(2) ... In addition, this notice provides guidance as to the interest rate on 30-year Treasury securities under Section 417(e)(3)(A)(ii)(II) as in effect for plan years beginning before 2008 and the 30-year Treasury weighted average rate under Section 431(c)(6)(E)(ii)(I)." (Internal Revenue Service [IRS])



Deadlines Loom for Retirement, Health & Welfare Plans
"If it is true that change is the only constant in life, it is equally true that knowledge is the great equalizer. Irrespective of the uncertainty relating to potential Income Tax Reform legislation, employers should be aware of important year-end deadlines and considerations related to their retirement and health and welfare plans." (Husch Blackwell)



[Official Guidance] Text of PBGC Interest Rate Update for Benefits Payable in Terminated Single-Employer Plans, December 2017
"The December 2017 interest assumptions under the benefit payments regulation will be 0.75 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for November 2017, these assumptions are unchanged." (Pension Benefit Guaranty Corporation [PBGC])



Are You Up to Date on Qualified Plan Beneficiary Rules?
"Many different rules impact the administration of paying a deceased participant's benefit to the correct beneficiary. These include knowing your plan document, required minimum distribution (RMD) regulations for beneficiary options, spousal consent issues, properly completed beneficiary designation forms, and having iron-clad procedures for paying beneficiaries. Keeping up to date with these rules can save you time, money and aggravation." (PenChecks)



2018 Planning for ERISA Single-Employer DB Plan Operations
"Adjustments to funding policy in light of the eventual phasing out of funding relief, management of escalating PBGC premiums, preparation for changes to mortality tables used to determine funding requirements, and consideration of alternatives for measuring accounting pension cost should be on your checklist for serious discussions with your plan's actuary.... [Other items include:] Implement benefit restrictions if funding shortfall or top-25 highly compensated employees rules apply.... Identify lost participants with vested benefits.... Address foreign asset reporting obligations.... Evaluate the need for plan amendments -- and deadlines." (Conduent)



[Guidance Overview] Puerto Rico Governor Authorizes Rules for Retirement Plan and IRA Distributions in Wake of Recent Natural Disasters
"Under EO 2017-067, the PR Treasury must create: [1] Tax rules applicable to distributions from qualified retirement plans and [IRAs] that are disbursed following Hurricane Maria or any disaster declared by executive order ... [2] Rules on responsibilities imposed to trustees, administrators and service providers of retirement plans and IRAs in connection with compliance with their tax withholding responsibilities ... [3] Rules applicable to loans taken from participants in a retirement plan.... [4] Preferential tax rates for Puerto Rico residents who make Eligible Distributions from retirement plans and IRAs." (Littler)



AICPA's Progress Toward Improving Employee Benefit Plan Audits
"An enhanced peer review program was created with subject matter experts specific to employee benefit plan audits to review these engagements. The enhanced peer review program identified the following two trends: [1] 20% of engagements had material nonconformity related to improper utilization of SOC reports and certifications; and [2] More than 50% of engagements had material nonconformity related to inadequate or no documentation." (Schneider Downs)



[Official Guidance] Text of IRS Rev. Rul. 2017-22: Covered Compensation Tables for 2018 (PDF)
"This revenue ruling provides tables of covered compensation under Section 401(l)(5)(E) of the Internal Revenue Code and the Income Tax Regulations thereunder, for the 2018 plan year.... For purposes of determining covered compensation for the 2018 year, the taxable wage base is $128,700." (Internal Revenue Service [IRS])



[Official Guidance] Text of IRS Publication 4810: Specifications for Electronic Filing of Form 8955-SSA, Annual Registration Statement Identifying Separated Participants With Deferred Vested Benefit (PDF)
52 pages, rev. Nov. 2017. "The purpose of this publication is to provide the specifications for electronically filing Form 8955-SSA, Annual Registration Statement Identifying Separated Participants With Deferred Vested Benefits, with the [IRS]. This publication must be used to prepare current and prior year Form 8955-SSAs. Generally, the boxes on the paper forms do correspond with the fields used for the electronic record; however, if the form and field instructions do not match, the guidance in this publication supersedes the form instructions.... Beginning November 2, 2017, FIRE accounts will be required to establish a secret phrase to assist in resetting of passwords for FIRE systems (Production and Test)." (Internal Revenue Service [IRS])



Text of Ninth Circuit Opinion: Attorney Fee Award Considers Entire Litigation, Not Limited to Specific Issue on Appeal (PDF)
"[In] analyzing a party's request for appellate attorney's fees under the Hummell test, a court must consider the entire course of the litigation, rather than focusing exclusively on the prior appeal. Weighing the five Hummell factors in light of all of a defendant's conduct, from its wrongful denial of the plaintiff's claim for ERISA benefits to its filing of a petition for a writ of certiorari, the panel held that the moving party was entitled to attorney's fees for the prior appeal, in which the panel had affirmed an award of litigation attorney's fees." [Micha v. Sun Life Assurance of Canada, Inc., No. 16-55053 (9th Cir. Oct. 31, 2017)] (U.S. Court of Appeals for the Ninth Circuit)



Participant's Missed Plan Loan Installment Payments Did Not Violate Level Amortization Requirement Because They Were Properly Cured
"The IRS assumed that the 401(k) plan permitted plan loans and allowed for a cure period ... in which a participant could make up a missed installment payment by the last day of the calendar quarter following the calendar quarter in which the required installment was due. The IRS explained that, in two situations, the participant properly cured missed loan repayments by either making payments within the cure periods or by refinancing the loan with a replacement loan within the cure period." [IRS Chief Counsel Advice Memorandum 201736022] (Wolters Kluwer Law & Business)



The Perils of Missing Participants
"Perhaps the most troubling of [the DOL investigators'] positions is ... that forfeiture of unclaimed retirement benefits may be a prohibited transaction -- because correction would require restoring the forfeited funds, adjusting such amounts for earnings in the case of a defined contribution plan, disgorging any profits earned by the plan sponsor by reason of the forfeiture, and paying a 15% excise tax to the [IRS].... [E]ven if the plan document provides for the forfeiture and restoration and received a favorable determination letter from the [IRS], this does not insulate the plan sponsor from potential DOL liability because prohibited transaction issues are within the purview of the DOL." (Wilkins Finston Friedman Law Group LLP)



2018 Inflation-Adjusted Limits Affect Many Employee Benefit Plans
"[Rev. Proc. 2017-58] sets out the 2018 inflation adjustments for ... health flexible spending arrangements (FSAs), qualified transportation fringe benefits, qualified adoption assistance programs, penalties related to the [ACA] individual mandate and qualified long-term care (LTC) premiums. The limits also include ... the qualified retirement plan limits released in Notice 2017-64 and the recently announced Social Security taxable wage base. The 2018 tax limits may affect design, administration, communication and tax reporting for these benefits." (Willis Towers Watson)



ERISA Fiduciary Update (PDF)
45 pages. Topics: [1] DOL Fiduciary Rule: Arbitration agreements and prohibition on waiving right to participate in class action; [2] Tibble v. Edison Int'l: The tab for choosing retail over institutional shares of mutual funds; [3] Health Plan TPAs as Fiduciaries: Fee disputes; [4] Cross-plan offsetting in health plans; [5] Attacks on arrangements between Financial Engines and recordkeepers; [6] The 'Vanguard' of fee, and other investment, litigation; [7] Surprise! Defendants win in Tatum v. R.J. Reynolds Tobacco Co.; [8] Proof of causation and burden-shifting in fiduciary breach cases; and [9] Standing: Defined benefit plan fiduciary claims. (Utz & Lattan, LLC)



Audit Quality Series, Part 2: Reducing the Chances of Auditor-Related Problems
"[Y]ou can't simply look at the number of audits a firm performs to determine if you have a potential problem. There are many firms doing top quality work who do fewer than 100 audits. You need to look for indications of potential problem areas such as: [1] Lack of experience in the EBP audit arena; [2] Negative or absent peer reviews; [3] DOL findings or referrals based on 'Unacceptable' filings; [4] Lack of significant EBP-specific training for partners and staff; [5] Not being a member of AICPA's Employee Benefit Plan Audit Quality Center." (Fiduciary Plan Governance, LLC)



TSP Hardship Withdrawal Programs Extended
"Officials at the 401(k)-style retirement savings program for federal employees announced Monday that they would extend the deadline for workers and retirees impacted by Hurricane Maria to make withdrawals from their accounts under relaxed rules.... The original deadline for submissions was set for Jan. 24, but ... federal employees and retirees now have until March 8 to request a hardship withdrawal. The funds must be distributed by March 15." (Government Executive)



Qualified Retirement Plan Amendments: 2017 Year-End Update (PDF)
"This advisory reminds plan sponsors of deadlines for amending qualified retirement plans and certain year-end legal updates." (Alston & Bird)



[Guidance Overview] IRS Finally Answers Pension Plan Mortality Questions (PDF)
"While current tables are based on data through 1994, the enhanced tables incorporate data through 2009 and projection tables reflect data through 2013. In general, the tables defined in Notice 2017-60 anticipate that plan participants will live longer and receive benefits over a longer period of time. This will drive up costs for the majority of plan sponsors who can anticipate a 3% to 5% increase in liabilities as a result of the change." (Lockton)



DOL Targets Retirement Plans with Missing Participants
"By examining Form 5500 annual reports, the DOL discovered that some plans were reporting a larger number of terminated vested participants who were not receiving benefits. Worse yet, the DOL was able to contact a significant number of these 'missing' participants by simply sending a certified letter to their last known address. As a result, the DOL has reportedly initiated a national audit campaign targeting plans with missing participants with a view towards treating lackadaisical efforts to locate them as a breach of fiduciary duty. And, the IRS can weigh in with additional penalties for failure to make RMDs to those ex-employees who have attained age 70-1/2." (The Retirement Plan Blog)



The Fiduciary Duty to Locate Missing Participants
"The DOL has only published guidance outlining the procedures that a terminating retirement plan should follow to locate missing participants, and that ongoing plans should follow before making automatic rollover distributions to an IRA for participants who are owed small-sums (between $1,000 and $5,000). Despite this lack of guidance, the DOL has been asserting in recent audits that a retirement plan's failure to identify and locate a missing participant is a breach of fiduciary duty ... even when the retirement plan has followed its procedures and has relatively few missing participants." (Vorys, Sater, Seymour and Pease LLP)



Disciplined, Confident and a Little Stressed: Millennials Report Positive 401(k) Saving Behaviors
"86 percent of Millennials, 90 percent of Gen Xers and 84 percent of Boomers [consider a 401(k) plan] a 'must-have' benefit. Millennials are especially reliant on 401(k)s for the money they'll need in retirement, with 78 percent saying a 401(k) is their largest or only source of retirement income.... [F]inancial stress has affected the job performance of more than a third of Millennials (35%), compared to 18 percent of Gen Xers and 11 percent of Baby Boomers. Not surprisingly, student loan debt impacts many Millennials, with 24 percent citing it as a source of financial stress." (Charles Schwab)



Chamber Backs Mandatory Arbitration of Employee Benefit Issues
"The Chamber is backing the University of Southern California in its attempt to move a proposed class action over the fees associated with its retirement plan into arbitration. In a brief filed Nov. 6, the Chamber asked the U.S. Court of Appeals for the Ninth Circuit to rule that employment agreements with arbitration clauses -- like the ones USC required its workers to sign -- apply to disputes involving retirement plans governed by [ERISA]." [Munro v. Univ. of Southern Calif., No. 17-55550 (9th Cir., amicus brief filed Nov. 6, 2017)] (Bloomberg BNA)



New ERISA Disability Claims Procedures: Action Steps for Plan Sponsors (PDF)
"[T]he requirement that a plan administer may not prevent a claimant from seeking court review for failure to exhaust administrative remedies appears to open the door to more proceedings. The regulations suggest that in this instance, a court should apply a de novo standard of review ... This alone may provide incentive for claims administrators to ensure timely and accurate reviews." (Boutwell Fay LLP)



Text of Fifth Circuit Opinion Rejecting Insurer's Argument That Discretionary Authority Transfers to SPD (PDF)
"The Summary Plan Description explains that certain benefits offset the long-term disability benefit amount, including '[p]ension benefits from a Verizon pension plan, if [the beneficiary] elect[s] to receive them.'... MetLife argues that selecting a trustee-to-trustee transfer constitutes 'electing to receive' pension benefits, while Thomason argues that such a transfer cannot be an election to receive the funds because he has no control over them ... We do not reach the actual meaning of 'elect to receive' under the Plan. Instead, we determine that the Summary Plan Description is ambiguous and thus we construe it in Thomason's favor." [Thomason v. MetLife, No. 16-10634 (5th Cir. July 18, 2017)] (U.S. Court of Appeals for the Fifth Circuit)



Audit Time: Do You Know Where Your Participants Are?
"[The DOL] has announced that it has expanded to the whole country a pilot program in which it asks plan administrators to provide current contact information for selected participants. The DOL considers it a breach of fiduciary responsibility if the plan doesn't know how to reach them.... On October 19, the IRS issued a memo explaining when examiners will not find a qualification failure if required minimum distributions haven't been made because participants couldn't be located.... [T]here are lots of practical steps to take and document." (Carol Buckmann, via 401kTV)



Why Automating Retirement Savings May Not Be Enough
"There is no doubt that automatic retirement savings plans do considerable good. They prod us into getting started on a path of saving regularly for our futures. The problem arises when we see them as a complete solution, rather than one piece of a complex and difficult set of behaviors that we will need to perform and integrate into our lifestyles." (Psychology Today)



Employee Benefit Provisions in the Proposed House Tax Bill
"The [proposed] rules raise many issues. For example, how do you tax nonqualified deferred compensation that has vested, but whose value is wholly contingent on future events? Will there be a reconciliation of the taxes that are paid when deferred compensation vests with the amount (including earnings) that is eventually paid? Special complications apply to existing awards granted before 2018 but that will not vest until after 2017." (Nixon Peabody LLP)



Is Keeping Former Employees in Your Plan a Good Idea?
"[F]ormer employees with balances of $5,000 or less may actually cause the plan to incur an unnecessary audit fee, adding administrative difficulty, and potentially increasing fees per participant paid to the custodian and third-party administrator.... [O]ther issues to consider regarding potentially lost participants include how up-to-date are the addresses of the former employees in the plan? Are they still living the United States or even alive? What are the escheatment laws in your state? At what point does the account become abandoned?" (Belfint Lyons & Shuman, CPAs)



FBI Raids TPA's Office Amid Allegations of Missing Retirement Funds
"The FBI has raided the offices of a downtown Dallas financial business amid concerns that money may be missing from retirement accounts the company manages. The company, Vantage Benefits Administrators, declined to comment, according to its in-house lawyer, Laura Mercer. The company's website is down, and employees reached by The Dallas Morning News said they could not comment. Vantage specializes in managing retirement plans such as 401(k)s for other companies." (The Dallas Morning News)



Mitigating Factors in Calculating a 403(b) Plan's Maximum Payment Amount Under EPCRS Closing Agreement
"[For a 403(b) plan]: [1] There is no tax exempt trust ... [2] The employer is a tax-exempt entity.... [3] The individual will suffer taxation, the amount of which should be included in the [minimum payment amount (MPA) calculated by the IRS agent]. But ... [b]ecause most 403(b) annuity contracts will qualify as annuities for 'inside buildup' purposes -- even if they fail 403(b) treatment -- the earnings should be excluded from the MPA.... [and] the MPA should only include the tax on portion of the excess in the account of the affected individual." (Business of Benefits)



Potential Impact of Tax Reform on Qualified Retirement Plans
"The retirement plan proposals that made it into the first draft of the legislation include: [1] Permanent 'closed plan' nondiscrimination testing.... [2] In-service withdrawals from defined benefit plans.... [3] Hardship withdrawals from individual account plans.... [4] Extended rollover period for plan loans." (Kilpatrick Townsend)



Tax Reform Contemplates Changes to Employee Benefits
"Elimination of certain income tax exclusions ... Loosen[ed] restrictions on hardship distributions from 401(k) plans ... Reduction in minimum age for in-service distributions from 457(b) plans and [DB] plans ... Extended rollover period for plan loan offset amounts ... Modified nondiscrimination testing rules for frozen legacy plans ... Additional limitations on archer medical savings accounts (Archer MSAs)." (Proskauer's ERISA Practice Center)



Has Your 401(k) Plan Had Its Annual Check-Up?
"While a number of variables contribute to how well a 401(k) works for its participants, four factors are critical to plan health -- but ... are not typically reviewed by the average 401(k) advisor. A positive report on all of them is required for a truly healthy 401(k). These four measures of health are widespread participation, high savings rates, adequate investment diversification and compliance with nondiscrimination rules." (ForUsAll)



Tax Reform Bill Contains Retirement Plan Changes
"Hardship distribution rule changes ... Plan loan rule change ... In-service distributions ... IRA contribution/conversion recharacterization rule.... [P]lan nondiscrimination testing [for closed plans]." (American Society of Pension Professionals & Actuaries [ASPPA])



[Guidance Overview] Missing Participants: IRS Memo Addresses RMD and Search Aspects
"While the [IRS Memo for EP examiners] appears to create a 'safe harbor' for purposes of IRS audits, plans need to keep in mind that the DOL may require additional steps.... [P]lans should take into account a missing participant's account balance and the cost of search methods in deciding what additional steps are appropriate. For example, the DOL could insist on using multiple commercial locator services in some circumstances." (Kilpatrick Townsend)



401(k) Lawsuits on the Rise: Best Practices for Plan Fiduciaries (PDF)
15 presentation slides. Topics: [1] Overview of ERISA fiduciary duties; [2] Overview of recent cases and activity; [3] Best practices for fiduciaries; and [4] Lessons/Takeaways. (McDermott Will & Emery)



[Guidance Overview] Relief Comes for Retirement Plans After Hurricane Maria and Wildfires
"Hardship distributions will still be taxable as an in-service distribution and potentially subject to early distribution penalties. [IRS Ann. 2017-15] simply temporarily removes certain administrative burdens of the plan so that funds can be released more quickly than normal procedures would typically allow. In addition, plans which do not currently have provisions for loans or hardship distributions can make them before the employer formally amends its plan to include such provisions. This guidance can be followed for distributions made by March 15, 2018." (RSM US)



Year-End Compliance Issues for Single-Employer Retirement Plans (PDF)
"This [article] looks at key areas -- including administrative compliance issues -- that sponsors of such defined benefit or defined contribution plans should address by Dec. 31, 2017." (Milliman)



[Guidance Overview] IRS Memo on RMDs Includes Standards for Searching for Missing Participants
"Prior to [the IRS Memo for EP examiners], qualified retirement plans that did not make RMDs to missing participants or beneficiaries risked being considered in violation of the RMD requirements, and different IRS regions could apply different standards on audit. Now, qualified retirement plans that cannot locate a participant or beneficiary will be treated as not violating the RMD standards if in compliance with the procedures [in the IRS memo]." (Seyfarth Shaw LLP)



Watch Out for What Your Plans Say -- or Don't Say -- About Transfers
"Few plans are drafted to deal with what happens when a collectively bargained employee (covered under one plan) transfers to an unrepresented position (or another facility) that is covered by a different plan.... [Issues] which your plan documents may not properly address: [1] Whether positions covered under other plans are 'excluded.' ... [2] Exactly when and how a transferred employee becomes eligible for and actually begins participation in a new plan.... [3] Whether your plan documents are consistent with relevant [memoranda of understanding (MOUs)] and/or employment agreements.... [4] Situations where, to make your plan 'work,' you end up treating 'transfers' as 'termination/re-hires.' " (Best Best & Krieger LLP)



ERISA's Six-Year Statute of Repose for Fiduciary Breach Claims Can Be Tolled
"The Eleventh Circuit held that ERISA's six-year statute of repose is not jurisdictional because ERISA does not contain the clear textual indication required to characterize the limitation as such. The Court also explained that, contrary to the trustee's argument, there is well-established precedent holding that statutes of repose are subject to express waiver, particularly when the statute setting forth the limitation period does not contain a categorical rule prohibiting waiver." [Sec'y, U.S. Dept of Labor v. Preston, No. 17-10833 (11th Cir. Oct. 12, 2017)] (Proskauer's ERISA Practice Center)



Cybersecurity as It Relates to Retirement Plan Data (PDF)
"[C]ourts have found that plan data is an asset of the plan under ERISA.... [As] it becomes prevalent for other ERISA fiduciaries to use procedures to secure online plan data from cyberattacks, as a matter of prudence, an ERISA fiduciary should also implement such procedures." (Groom Law Group, via Bloomberg BNA Pension & Benefits Daily)



Benefit Plans: Upcoming Compliance Deadlines and End of Year Planning
"[This article provides] a non-exhaustive list of quickly approaching employee benefits deadlines for 401(k) plans and health and welfare plans in the fall of 2017 and early 2018. The deadlines [listed] are generally for calendar year plans, unless otherwise specified." (Holland & Hart LLP)



Text of GAO Report on IRS Update of Mortality Tables for Determining Present Value Under Defined Benefit Pension Plans
"This final rule was published in the Federal Register on October 5, 2017. It was received October 4, 2017, and has a stated effective date of October 5, 2017. Therefore, the final rule does not have the required 60-day delay in its effective date. However, IRS stated that the final rule applies to plan calendar years starting on January 1, 2018, and later.... With the exception of the 60-day delay in effective date requirement, our review of the procedural steps taken indicates that IRS complied with the applicable requirements." [B-329474, Oct. 13, 2017] (U.S. Government Accountability Office [GAO])



[Official Guidance] Text of 2018 PBGC Update to Present Value of PBGC Maximum Guarantee
"The values [in this table] apply to benefits with annuity starting dates in 2018.... The 2018 table was developed using the 417(e) segment rates for August 2017 (1.93%, 3.57% and 4.36% respectively) for plan years beginning in 2018 and the 417(e) applicable mortality table for 2018." (Pension Benefit Guaranty Corporation [PBGC])



CalPERS Identifies Income Sources of Public Employee Pensions
"The CalPERS Pension Buck illustrates the sources of income that fund public employee pensions. Based on data over the past 20 years ending June 30, 2017, for every dollar CalPERS pays in pensions, 61 cents comes from investment earnings, 26 cents from employer contributions, and 13 cents from employee contributions. In other words, 74 cents out of every public employee pension dollar is funded by CalPERS' own investment earnings and member contributions." (CalPERS)



A Buyer's Post-Closing To-Do List for Employment and Benefits Issues
"Detailed employment and benefits diligence likely identified numerous potential liabilities and differences between the buyer and the target company, and it is now time to integrate the acquisition into the buyer's established business or portfolio.... Where is a buyer to begin, and what post-closing employment and benefits issues should be prioritized?" (Fisher Phillips)