Wednesday, February 25, 2009

Treasury Regulation – [TD 9447] – Automatic Contribution Arrangements

26 CFR Parts 1 and 54

[TD 9447]

RIN 1545-BG80

Treasury Regulation – [TD 9447] – Automatic Contribution Arrangements

TD 9447 contains final regulations relating to automatic contribution arrangements. These regulations affect administrators of, employers maintaining, participants in, and beneficiaries of section 401(k) plans and other eligible plans that include an automatic contribution arrangement.

SUMMARY: This document contains final regulations relating to automatic contribution arrangements. These regulations affect administrators of, employers maintaining, participants in, and beneficiaries of section 401(k) plans and other eligible plans that include an automatic contribution arrangement.

DATES: Effective date: These regulations are effective on February 24, 2009.   Applicability date: Except as provided in Sec. Sec.  1.401(k)-3(j)(1)(i) and 1.401(m)-2(a)(6)(ii), the final regulations relating to qualified automatic contribution arrangements (Sec. Sec.  1.401(k)-2, 1.401(k)-3, 1.401(m)-2, and 1.401(m)-3) apply to plan years beginning

on or after January 1, 2008. The regulations relating to eligible automatic contribution arrangements (Sec. Sec.  1.402(c)-2, 1.411(a)-4, 1.414(w)-1, and 54.4979-1) apply for plan years beginning on or after January 1, 2010.
Final regulations under section 401 and other sections of the Code provide guidance relating to certain automatic contribution arrangements, eligible rollover distributions, forfeitures, and excise tax on certain excess contributions and excess aggregate contributions. 

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Tuesday, February 24, 2009

IRS Notice 2009-16 – Update for Weighted Average Interest Rates, Yield Curves, and Segment Rates

Part III --- Administrative, Miscellaneous, and Procedural

IRS Notice 2009-16 – Update for Weighted Average Interest Rates, Yield Curves, and Segment Rates

Weighted average interest rate update; corporate bond indices; 30-year Treasury securities; segment rates. This notice contains updates for the corporate bond weighted average interest rate for plan years beginning in February 2009; the 24-month average segment rates; the funding transitional segment rates applicable for February 2009; and the minimum present value transitional rates for January 2009.

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Tuesday, February 17, 2009

Retirement News for Employers – Winter 2009 Edition

The IRS released Retirement News for Employers – Winter 2009 Edition. It contains the following articles:

  • Did You Amend Your SIMPLE IRA Plan for EGTRRA?
  • New Law Waives Required Minimum Distributions for 2009
  • We're Glad You Asked!
  • New on the Web
  • Automatic Enrollment 401(k) Plans for Small Businesses
  • Fixing Common Plan Mistakes: Failure to Limit Contributions for a Participant
  • Recent Guidance
  • New Form 990 Requirements
  • The Filing Cabinet
  • Desk Side Chat With Monika Templeman - The Biggest Mistake
  • DOL News
  • Mark Your Calendar
  • Timing Is Everything Flyer.

Saturday, February 14, 2009

Field Assistance Bulletin No. 2009-01 - Defined Benefit Plan Annual Funding Notice - Pension Protection Act of 2006

The DOL announced the release of a Field Assistance Bulletin (FAB) concerning new disclosure requirements mandated by the PPA.

Washington - The U.S. Department of Labor's Employee Benefits Security Administration (EBSA) today released Field Assistance Bulletin (FAB) 2009-01 concerning new disclosure requirements mandated by the Pension Protection Act of 2006 (PPA).

The PPA amended the Employee Retirement Income Security Act of 1974 (ERISA) to require plan administrators of defined benefit pension plans to provide participants and others with information annually about the funding status of their plans. An estimated 1,500 multiemployer plans covering approximately 10 million participants and beneficiaries plus 29,000 single-employer plans covering approximately 33.8 million participants and beneficiaries are subject to the new disclosure requirements. Many of these plans must furnish their first annual funding notice under the new law no later than April 30, 2009.

The FAB addresses a need for interim guidance pending the adoption of regulations or other guidance under section 101(f) of ERISA by announcing a "good faith" enforcement policy. The FAB also includes technical assistance in the form of questions and answers and model annual funding notices.

The FAB provides some background information:

Section 101(f) of the Employee Retirement Income Security Act (ERISA) sets forth requirements applicable to furnishing annual funding notices. Before the Pension Protection Act of 2006 (PPA), section 101(f) applied only to multiemployer defined benefit plans. Section 501(a) of the PPA amended section 101(f) of ERISA, making significant changes to the annual funding notice requirements. These amendments require administrators of all defined benefit plans that are subject to title IV of ERISA, not only multiemployer plans, to provide an annual funding notice to the Pension Benefit Guaranty Corporation (PBGC), to each plan participant and beneficiary, to each labor organization representing such participants or beneficiaries, and, in the case of a multiemployer plan, to each employer that has an obligation to contribute to the plan. An annual funding notice must include, among other things, the plan's funding percentage, a statement of the value of the plan's assets and liabilities and a description of how the plan's assets are invested as of specific dates, and a description of the benefits under the plan that are eligible to be guaranteed by the PBGC.

The PPA amendments to section 101(f) apply to plan years beginning after December 31, 2007, with special rules for disclosing "funding target attainment percentage" or "funded percentage" with respect to any plan year beginning before January 1, 2008. Section 501(c) of the PPA requires the Department to develop a model annual funding notice within one year of the date of enactment of the PPA.

Recently, concerns have been expressed about the imminent compliance date of the new annual funding notice requirements, the absence of regulatory guidance from the Department, and the cost and burdens attendant to annual funding notice compliance efforts prior to the adoption of annual funding notice regulations and the issuance of a model annual funding notice by the Department. In recognition of the foregoing, this memorandum provides guidance to the Employee Benefits Security Administration's national and regional offices concerning good faith compliance with the new annual funding notice requirements.

It provides for good faith compliance and a model annual funding notice for single-employer and multiemployer defined benefit plans. It also contains 17-Q&As:

  1. When must plans first comply with the new annual funding notice requirements?
  2. What is the benefit to plan administrators of using the model notices?
  3. May the plan administrator of a multiemployer plan use the model in the Appendix to 29 C.F.R. 2520.101-4 for purposes of compliance with section 101(f) for plan years beginning on or after January 1, 2008?
  4. Must a plan administrator furnish an annual funding notice to the Pension Benefit Guaranty Corporation?
  5. Are all ERISA-covered defined benefit pension plans subject to the new annual funding notice requirement?
  6. Section 101(f)(2)(B)(i)(I) of ERISA states that an annual funding notice must include, "in the case of a single-employer plan, a statement as to whether the plan's funding target attainment percentage (as defined in section 303(d)(2)) for the plan year to which the notice relates, and for the 2 preceding plan years, is at least 100 percent (and, if not, the actual percentages)[.]" How should plan administrators calculate this percentage for the model?
  7. Section 101(f)(2)(B)(ii)(I)(bb) of ERISA states that an annual funding notice must include, in the case of a single-employer plan, "the value of the plan's assets and liabilities for the plan year to which the notice relates as of the last day of the plan year to which the notice relates determined using the asset valuation under sub clause (II) of section 4006(a)(3)(E)(iii) and the interest rate under section 4006(a)(3)(E)(iv)[.]" How should plan administrators calculate year-end assets and liabilities for the model?
  8. Section 101(f)(2)(B)(i)(II) of ERISA states that an annual funding notice must include, "in the case of a multiemployer plan, a statement as to whether the plan's funded percentage (as defined in section 305(i)) for the plan year to which the notice relates, and for the 2 preceding plan years, is at least 100 percent (and, if not, the actual percentages)[.]" How should plan administrators calculate this percentage for the model?
  9. Section 101(f)(2)(B)(ii)(II) of ERISA, as amended by the Worker, Retiree, and Employer Recovery Act of 2008, Pub. L. No. 110-458, states that an annual funding notice must include, "in the case of a multiemployer plan, a statement, for the plan year to which the notice relates and the preceding 2 plan years, of the value of the plan assets (determined both in the same manner as under section 304 and under the rules of sub clause (I)(bb)) and the value of the plan liabilities (determined in the same manner as under section 304 except that the method specified in section 305(i)(8) shall be used)[.]" How should plan administrators calculate these assets and liabilities for the model?
  10. Section 101(f)(2)(B)(iii) of ERISA states that an annual funding notice must include "a statement of the number of participants who are (I) retired or separated from service and are receiving benefits, (II) retired or separated participants entitled to future benefits, and (III) active participants under the plan[.]" What is the meaning of the terms "active" and "retired or separated" for purposes of section 101(f)(2)(B)(iii) of ERISA? On what day of the plan year must the administrator focus when counting participants for purposes of this statement?
  11. Section 101(f)(2)(B)(iv) of ERISA states that an annual funding notice must include "a statement setting forth the funding policy of the plan and the asset allocation of investments under the plan (expressed as percentages of total assets) as of the end of the plan year to which the notice relates[.]" How should a plan administrator state the asset allocation on the model?
  12. Section 101(f)(2)(B)(vi) states that an annual funding notice must include, "in the case of any plan amendment, scheduled benefit increase or reduction, or other known event taking effect in the current plan year and having a material effect on plan liabilities or assets for the year (as defined in regulations by the Secretary), an explanation of the amendment, scheduled increase or reduction, or event, and a projection to the end of such plan year of the effect of the amendment, scheduled increase or reduction, or event on plan liabilities." When does an amendment, scheduled increase, or other known event have a "material effect" on plan liabilities or assets for purposes of section 101(f)(2)(B)(vi)?
  13. May plan administrators add additional or explanatory information to a model?
  14. May the annual funding notice be furnished to recipients electronically?
  15. For multiemployer plans, how is "each employer that has an obligation to contribute to the plan" defined for purposes of furnishing a model notice?
  16. Section 101(f) of ERISA requires the disclosure of plan funding information not only for the plan year to which the notice relates, but also for the two plan years preceding that year. Thus, for example, an annual funding notice for the 2008 plan year must include PPA funding information pertaining to the 2007 and 2006 plan years (both pre-PPA years). What funding information for these pre-PPA years should the plan administrator include in its model?
  17. Do the new annual funding notice requirements apply to plans for which the effective date of the PPA funding rules is delayed in accordance with sections 104 through 106 of PPA, or that are subject to special funding rules in accordance with section 402 of the PPA? May such plans use the model notice in Appendix A?

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Free Webcast: Getting Ready for the 2009 Form 5500 and Electronic Filing

The DOL announced a free February 19 webcast, Getting Ready for the 2009 Form 5500 and Electronic Filing:

Washington – The U.S. Department of Labor's Employee Benefits Security Administration (EBSA) will host its first of a series of free webcasts on February 19 from noon to 2 p.m. EST to help employers and service providers prepare for changes in the requirements of the 2009 Form 5500 reports and a preview of the new electronic filing Web site.

This webcast will cover the new simplified annual reporting form for small plans with easy to value investments; expanded reporting by large plans of compensation received by plan service providers; realignment of the reporting rules for Internal Revenue Code section 403(b) pension plans subject to Title I of the Employee Retirement Income Security Act (ERISA) to make them on par with 401(k) plans; and annual reporting changes required by the Pension Protection Act or defined benefit pension plans and multiemployer plans.

The modernized version of the ERISA Filing Acceptance System – known as EFAST2 – will receive only electronic filing submissions, provide quick responses in the event there are errors in a filing and publicly disclose filed Form 5500 reports through the EFAST Web site. The seminars are part of EBSA's fiduciary education campaign to help workers and employers, especially small businesses, understand their rights and obligations under employee benefit laws.

Additional webcasts and educational material will be made available throughout the year.

News media are encouraged to cover this event.

Who: Employers, plan fiduciaries and providers of plan services
What: Webcast on Form 5500 and electronic filing
When: February 19, Noon to 2 p.m. EST
How: Online registration is first-come, first-served, by visiting www.dol.gov/ebsa and clicking the appropriate link under "Compliance Assistance Workshops, Seminars and Webcasts." For more information, wecontact Patricia Humphlett at 202.693.8660

Here is more information about the free webcast:

To help plan sponsors and plan service providers prepare for the changes to the Form 5500 and the electronic filing requirement that begin with the 2009 plan year filings, the Department of Labor will be providing webcasts and other educational outreach throughout the year. This first webcast will help you get started preparing for the changes and will include a preview of the new EFAST2 electronic filing website.

Among the changes to the Form 5500 are a new simplified annual reporting form for small plans with easy to value investments; expanded reporting by large plans of compensation received by plan service providers; realignment of the reporting rules for Internal Revenue Code section 403(b) pension plans subject to Title I of ERISA to make them on par with 401(k) plans; and annual reporting changes required by the Pension Protection Act (PPA) for defined benefit pension plans and multiemployer plans.

Along with the form changes, the ERISA Filing Acceptance System (EFAST) is being modernized. The new filing system, EFAST2, will receive only electronic filing submissions and will quickly indicate if there are errors in a filing. EFAST2 also will publicly disclose the filed Form 5500 reports through the EFAST website.


Duties of Fiduciaries in Light of Recent Events Regarding Bernard L. Madoff Investment Securities LLC

The DOL announced guidance on fiduciary duties in response to the alleged abuses involving the Madoff investment firm:

Washington – The U.S. Department of Labor's Employee Benefits Security Administration (EBSA), today announced guidance on the duties of employee benefit plan fiduciaries in light of alleged abuses involving Bernard L. Madoff Investment Securities LLC.

The department is providing guidance to fiduciaries, investment managers and other investment service providers to plans who believe they may have exposure to losses on investments with entities related to the Madoff firm. The guidance also provides steps that can be taken to assess and protect the interests of plans, participants and beneficiaries under the Employee Retirement Income Security Act (ERISA).

Here is the one-page guidance:

Recent events regarding Bernard L. Madoff Investment Securities LLC have resulted in fiduciaries, investment managers and other investment service providers asking the Department of Labor about steps they should be taking in connection with employee benefit plans they believe may have exposure to losses as a result of plan assets being invested with Madoff entities. Fiduciaries of employee benefit plans covered by the Employee Retirement Income Security Act of 1974 (ERISA) should address these events in a manner consistent with their fiduciary duties of prudence and loyalty to the plan's participants and beneficiaries.

Where plan fiduciaries determine that plan assets were invested with Madoff entities and material losses are likely, appropriate steps should be taken to assess and protect the interests of the plan and its participants and beneficiaries. Such steps may include (1) requesting disclosures from investment managers, fund managers, and other investment intermediaries regarding the plan's potential exposure to Madoff-related losses, (2) seeking advice regarding the likelihood of losses due to investments that may be at risk; (3) making appropriate disclosures to other plan fiduciaries and plan participants and beneficiaries; and (4) considering whether the plan has claims that are reasonably likely to lead to recovery of Madoff-related losses that should be asserted against responsible fiduciaries or other intermediaries who placed plan assets with Madoff entities, as well as claims against the Madoff bankruptcy estate. Fiduciaries must ensure that claims are filed in accordance with applicable filing deadlines such as those applicable to bankruptcy claims and for coverage by the Securities Investor Protection Corporation (SIPC).

The web site of the court-appointed trustee for the liquidation of Bernard L. Madoff Investment Securities LLC is www.madofftrustee.com. This web site contains the liquidation notice, claim forms and related claims information, and deadlines for the filing of claims with the trustee.

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