The Impact of the Pension Protection Act of 2006 on Non-Profit & Governmental Employee Benefit Plans
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- Noah Shepherd
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1 The Impact of the Pension Protection Act of 2006 on Non-Profit & Governmental Employee Benefit Plans Prepared By The National Practice Managers of Gardner & White, October 2006 Gardner & White Corporation 8902 North Meridian Street, Suite 202 Indianapolis, IN
2 I. Introduction Although to many organizations, The Pension Protection Act of 2006 represents the most comprehensive revision to the laws governing defined benefit pension plans since the enactment of the Employee Retirement Income Security Act of 1974 (ERISA), its impact on the defined contribution pension, deferred compensation, and tax deferred annuity plans of many non-profit and government employers will also be significant and long-lasting. The enactment of the Act follows a long period of tepid stock market performance, low interest rates, and increasingly unfavorable participant demographics, the combination of which has contributed to the deterioration of the funding of many defined benefit pension plans and, in extreme cases, has lead to plan termination where a plan sponsor was unable to meet its funding obligations. As a result, many of the Act s provisions are solely aimed at underfunded defined benefit pension plans, estimated nationally at $450 billion. However, and most importantly for non-profit and governmental plan sponsors, the Act also makes important changes to the rules governing 401(k), 403(b), 457(b) and other defined contribution retirement plans, nonqualified deferred compensation plans, individual retirement accounts (IRAs), and certain health and welfare benefits. The primary focus of this white paper will be on these aspects of the new law. After months of sometimes contentious negotiations, the House voted 279 to 131 and the Senate voted 93 to 5 in overwhelmingly adopting this legislation. President Bush signed the Act into law on August 17, The Act is 907 pages long, and the accompanying Joint Committee on Taxation Technical Explanation is 386 pages long. Obviously, this is a very large piece of legislation, which also includes important changes in the Internal Revenue Code. Much of the new law will require (in some areas mandates) specific regulations to be issued by the jurisdictional agencies. Some aspects of the law are intended to coordinate with other recently passed legislation, and some areas make permanent previous enacted laws and regulations. We will be continuing to sort out the details for a long time. This summary describes the basic issues addressed in the Pension Protection Act and should not be relied upon as legal or technical advice or opinion. Please consult with your Gardner & White representative, should you have specific questions related to your organization s employee benefit plans. 2
3 II. Qualified Retirement & Savings Plans Defined Contribution Faster Vesting in Employer Nonelective Contributions. The Code and ERISA currently require that, with respect to employer nonelective contributions to a defined contribution plan or 403(b), plan participants either fully vest after five years or vest 20% per year beginning after two years of service. The Act requires that vesting in such contributions occur more quickly. A defined contribution plan or 403(b) must provide that a participant either fully vest in such contributions after three years of service or vest 20% per year beginning after one year of service. This new faster vesting schedule is the same vesting schedule that currently applies to employer matching contributions. Nonelective contributions made on or before December 31, 2006 may continue to vest on their prior vesting schedule, thus possibly creating a scenario where plans will now have two nonelective contribution vesting schedules rather than one. This change does not affect plans of governmental employers. This provision applies to contributions made for plan years beginning after December 31, 2006, with a possibly later date for plans subject to collective bargaining. Preemption of State Law for Automatic Enrollment Arrangements. One previously unresolved issue was whether the use of an automatic enrollment arrangement would violate state wage laws (such as minimum wage laws and laws regulating payroll withholding). The Act resolves the issue by preempting any state law that directly or indirectly prohibits or restricts the inclusion (or operation) of an "automatic contribution arrangement" (a term broadly defined to include automatic enrollment arrangements in addition to those meeting the requirements of a qualified automatic enrollment feature). Unfortunately, the Act did not apparently remedy this concern for plans of governmental employers, and a further technical correction may be necessary. This provision became effective on August 17, Automatic Enrollment Safe Harbor for 401(k) and 403(b) Plans. Recognizing that left to their own devices, participants rarely save enough for retirement, Congress has decided to accentuate the positive of negative elections in an effort to stimulate both participation and deferral rates. Employers are encouraged to add automatic enrollment arrangements for their 401(k) and 403(b) plans, whereby an employee is automatically enrolled in a plan and deemed to have elected to defer a specified percentage of compensation into a plan. Building on prior IRS authorization of this technique, the Act provides that a 401(k) plan (or 403(b) plan) with an automatic enrollment arrangement that meets certain requirements (a "qualified automatic enrollment feature") is treated as automatically satisfying the ADP and ACP nondiscrimination tests and is exempt from the top-heavy rules. According to predictions by the Profit Sharing/401(k) Council of America, 10 million more employees will contribute in the next five years as a result of this provision. 3
4 The four basic requirements are as follows: Unless a newly eligible plan participant opts out, automatic elective contributions made on the participant s behalf must equal at least 3% of the participant s compensation for the first plan year in which the deemed election applies to the participant, 4% for the second plan year, 5% for the third plan year, and 6% for any plan year thereafter, but in no case may exceed 10% of compensation. Participants must be given the opportunity to make an affirmative election to cease elective contributions at the "automatic" level or to have a different level of contributions made. The employer must either (1) satisfy a matching contribution requirement or (2) make a nonelective contribution of at least 3% of compensation for each non-highly compensated employee eligible to participate in the automatic enrollment arrangement, and the participant must fully vest in the employer contributions after 2 years of service. If matching contributions are made, the plan is deemed to satisfy the ACP test if (1) matching contributions are not provided with respect to elective contributions in excess of 6% of compensation, (2) the rate of matching contributions does not increase as the rate of an employee s elective contributions increases, and (3) the rate of matching contributions with respect to any rate of elective contributions of a highly compensated employee is not greater than the rate of matching contributions with respect to the same rate of elective contributions for a non-highly compensated employee. (The matching contribution requirement is met if the employer makes a matching contribution on behalf of each non-highly compensated employee equal to 100% of the first 1% of the compensation deferred by the employee and 50% of the employee s deferrals which exceed 1% but do not exceed 6% of the employee s compensation.) Each participant subject to the automatic enrollment arrangement must receive a notice explaining his or her right to elect to cease automatic elective contributions or to have a different level of contributions and the manner in which the elective contributions will be invested absent the participant s investment direction. The employee must be allowed a reasonable period of time after receipt of the notice and before the first automatic elective contribution is made to make such an affirmative election. A plan with an automatic contribution arrangement that chooses not to satisfy the safe harbor requirements described above (an eligible automatic contribution arrangement ) will have 90 days to return erroneous deferrals and 6 months (rather than 2 and 1/2 months) to make ADP/ACP corrective distributions to participants. 4
5 The provision is effective for plan years beginning after December 31, Investment of Assets Absent Participant Election. ERISA Section 404(c) provides relief to plan fiduciaries from liability for investment decisions made by a plan participant who "exercises control" over the investment of his or her plan account. Since the enactment of 404(c), plan sponsors have been concerned as to their level of protection in cases where a participant fails to make an investment election. The Act extends the protection of ERISA Section 404(c), and a participant is treated as exercising control with respect to assets in the participant s account, if such assets are invested in a "default investment" in accordance with forthcoming Department of Labor ("DOL") regulations until such time as the participant actually exercises control by making an affirmative investment election. Default investments are often utilized in situations where a participant in a plan providing participant-directed investments fails to provide any such direction for plan contributions made on the participant s behalf. The prevalence of default investments is certain to increase given the Act s future safe harbor treatment of plans with qualified automatic enrollment features. The Act specifies that the DOL regulations be issued within six months following the Act s enactment and that they provide guidance on designating certain investments as default investments, as well as the appropriate mix of asset classes considered to be consistent with long-term capital appreciation or longterm capital preservation (or a blend of both). This should provide support for existing default investment practices that make use of lifecycle and target retirement date funds rather than money market and stable value funds. Before a participant s account is first invested in a default investment, notice must be provided so that the participant has a reasonable period of time to actually make an affirmative investment election before the default investment is made. The notice must contain an explanation of the participant s right to specifically direct investment of the assets in the account and the manner in which contributions will be invested absent any participant investment direction. On September 27, 2006, the Secretary of Labor issued a Proposed Regulation that identifies 3 default options; age weighted or target date portfolios, a balanced portfolio, a managed account. This provision is effective for plan years beginning after December 31, Investment Advice. The Act creates a statutory exemption from the prohibited transaction rules under ERISA and the Code so that a plan fiduciary (an "advice fiduciary") may provide investment advice to plan participants and beneficiaries who direct the investment of their accounts and to IRA beneficiaries if an "eligible investment advice arrangement" is utilized. 5
6 An "eligible investment advice arrangement" is one that either (1) provides that any fees received by the advice fiduciary for investment advice or with respect to an investment transaction involving plan assets do not vary among investment options selected or (2) utilizes a computer model meeting specified requirements including incorporation of relevant information about the participant (for instance, the participant s age and risk tolerance) and operates in a manner that does not favor investments offered by the advice fiduciary. Certification by an independent investment expert that the computer model meets all such requirements is mandated prior to its use. An eligible investment advice arrangement must also satisfy all of the following requirements: Use of the arrangement must be authorized by a plan fiduciary other than the advice fiduciary. Information on the arrangement must be provided to participants before any advice is given and annually thereafter, and such information must include a description of the fees, rates of return, roles of parties involved and an acknowledgment of the investment adviser s status as a fiduciary. Investment transactions must occur only at the direction of a participant. Compensation received by the advice fiduciary must be "reasonable." An independent audit of the arrangement must be conducted annually to ensure compliance with these requirements (and evidence of such compliance must be retained for six years). The Act expressly provides that, while the plan sponsor has no duty to monitor the specific advice provided by the advice fiduciary, nothing in the exemption relieves a plan sponsor from responsibility for the prudent selection and monitoring of the advice fiduciary. These rules prohibit certain transactions between an employer-sponsored retirement plan and a "disqualified person" (or a "party in interest" under ERISA). The Code s rules also extend to IRAs and other non-employer-sponsored plans. A disqualified person includes a plan fiduciary, a plan service provider and the employer sponsoring the plan for its employees. Prohibited transactions include (1) the sale, exchange or leasing of property, (2) the lending of money or other extension of credit, (3) the furnishing of goods, services or facilities, (4) the transfer to, or use by or for the benefit of, the income or assets of the plan, (5) in the case of a fiduciary, any act that deals with the plan s income or assets for the fiduciary s own interest or account, and (6) the receipt by a fiduciary of any consideration for the fiduciary s own personal account from any party dealing with the plan. Penalty taxes are assessed against a disqualified person who engages in a prohibited transaction. 6
7 This provision of the Act is effective for investment advice provided after December 31, Mapping of Investments. The Act also provides that, in connection with a "qualified change in investment options" (A "qualified change in investment options" is a change in the investment options offered to a participant or beneficiary under the terms of a plan, under which: (1) the participant s account is reallocated among one or more new investment options offered instead of one or more investment options that were offered immediately before the effective date of the change; and (2) the characteristics of the new investment options, including characteristics relating to risk and rate of return, are, immediately after the change, reasonably similar to the characteristics of the investment options offered immediately before the change. This process is commonly called "mapping" of investments) under a plan providing participant-directed investments, a participant is considered to have exercised control (for ERISA Section 404(c) purposes) over the assets in his or her account during the change in options if the participant exercised control over such assets before a change, provided that the following three requirements are met: The participant must receive a written notice between 30 and 60 days before the change in investment options that compares the existing and new investment options and explains how, unless the participant affirmatively chooses other investment options, his or her account will be invested in new options with investment characteristics similar to those of the existing options. The participant must not actually have provided affirmative investment instructions even though the participant had an opportunity to do so. The investment of the participant s account immediately before the change must be the result of the participant s exercise of control over the assets in his or her account. If these requirements are satisfied, a plan fiduciary is protected from liability under ERISA Section 404(c) with respect to the mapping of a participant s account from one set of investment options to another. This provision is effective for plan years beginning after December 31, Hardship Rules. A 401(k), 403(b) and 457 plan may permit distribution on account of "hardship," which, prior to the Act, was defined as an immediate and heavy financial need of the participant, the participant s spouse or dependent that could only be satisfied by a plan distribution The Act directs the Secretary of the Treasury to revise the hardship rules to permit a distribution on account of an event that occurs with respect to a designated beneficiary of a participant if such event would constitute a hardship if it occurred with respect to the participant, the participant s spouse or dependent. For example, distributions on account of the 7
8 hardship of a parent, domestic partner or grandchild (if designated as a beneficiary under the plan) would be permitted. The Act directs that the Secretary of the Treasury modify the hardship distribution rules within 180 days following August 17, Right to Diversify Out of Company Stock. Currently, for-profit sponsors of certain types of defined contribution plans are permitted to either contribute in the form of company stock or require that plan contributions be invested in company stock and are only required to allow diversification out of company stock under limited circumstances. The Act greatly expands those circumstances for plans that hold publicly-traded employer securities (i.e., securities issued by the employer or a member of the employer s controlled group of corporations that are readily tradable on an established securities market). Those plans, as a condition of qualification under the Code, must allow participants to immediately diversify their employee contributions and elective deferrals out of company stock and to diversify their employer contributions after three years of service. The plan must notify participants of their right to diversify and the importance of investment diversification. As an alternative to company stock, the plan must also offer participants a choice among three investment options with different risk and return characteristics. This qualification requirement does not apply to a plan that invests in company securities that are not publicly traded (a plan holding employer securities that are not publicly traded is generally treated as holding publicly-traded employer securities if the employer (or any member of the employer s controlled group of corporations) has issued a class of stock that is a publicly-traded employer security. However, this is not the case if neither the employer nor any parent corporation of the employer has issued any publicly-traded security or any special class of stock that grants particular rights to, or bears particular risks for, the holder or the issuer with respect to any member of the employer s controlled group that has issued any publicly-traded employer security) or that is qualified as an employee stock ownership plan (unless the employee stock ownership plan accepts elective deferrals, employee after-tax contributions or employer matching contributions). This provision is effective for plan years beginning after December 31, 2007 with a three-year phase-in transition period for diversifying employer contributions already invested in company stock prior to the provision s effective date. 8
9 III. All Qualified Retirement & Savings Plans Reporting and Disclosure. An employer is required to file an annual return (Form 5500) with the DOL for each of its retirement plans and health and welfare plans that are subject to ERISA s reporting and disclosure rules. Small plans with 25 or fewer participants on the first day of the plan year will be able to use a simplified 5500 format for plan years beginning after The Act now requires that an employer file the Form(s) 5500 with the DOL in electronic format and also electronically post such information on the employer s intranet within 90 days after filing for plan years beginning after 2007 (timed to begin with the mandatory e-filing of 5500 s). Participant Benefit Statements. Will be required quarterly for plans that allow participants to direct their investments, and once each calendar year for other defined contribution plans. Several specific items must be including notice if there are any restrictions on any right to direct an investment, and a notice that assets may not be adequately diversified if the value of any one investment exceeds 20% of the total account balance. Defined benefit plans must provide participants with vested benefits notice every three years unless the plan gives an annual notice. The DOL has one year to issue a model notice for plan sponsor use. This is generally effective for plan years beginning in Plan Amendments. While qualified retirement plans must operationally comply with the Act as of the effective date of each provision, the Act generally provides that qualified plan documents may be retroactively amended to comply with the Act and regulations (and not violate the 411(d)(6) anti-cutback rules!) if amended on or before the last day of the first plan year beginning on or after January 1, New DB(k) Plans. The Act permits a new type of plan which will combine a defined benefit plan with a 401(k) plan in a single vehicle with only one 5500 filing. The DB portion will have to provide either a 1% final average pay formula for up to 20 years service or a cash balance formula that increases with the participant s age. The 401(k) portion will have to include the automatic enrollment feature and will have to provide a fully-vested 50% on the first 4% of deferrals. Other employer contributions will be permitted. The DB(k) only applies to employers with 500 or fewer employees. This provision is not effective until Missing Participants. The PBGC program for missing participants will now be available for missing participants from defined contribution plans on a voluntary basis and will be effective after final regulations are issued. 9
10 Gap Period Income. The PPA eliminated a 401(k) regulation that became effective earlier in 2006 requiring the calculation of gap period income (a calculation of income from the end of the year for which contributions were made to the date of distribution) on refunds after a testing failure. This applies whether or not the corrective distribution was made within the 2 and ½ month period. The repeal doesn t affect 402(g) corrective distributions of excess deferrals. The final regulations gap period income rule stays in effect for the 2006 and 2007 plan years (unless the IRS changes its mind). Under the new rule, highly compensated employees include corrective distributions in income in the year of distribution (not in the year the correction was made). This change is effective for plan years beginning in Plan Distribution Notices. The 90-day distribution notice requirements are now changed to 180 days. This gives the plan additional time to process the distribution or automatic rollover without having to re-notice the participant. If the participant has the right to defer receipt of the benefit, the notice must describe the consequences of failure to defer. This change is effective for plan years beginning in Qualified Joint & Survivor Annuities. For plans subject to Code Section 417(g), the Act requires plans to give a choice of survivor annuities. If the plan survivor annuity is at least 75%, the plan must also offer a 50% option. If the plan survivor annuity is less than 75%, then the plan must offer a 75% option. This change is effective for plan years beginning after Military and Public Service Personnel. The Act enables individuals called up for active duty for at least 180 days (or indefinitely) between 9/11/2001 and 12/31/2007 to take penalty-free early distributions from their IRAs, 401(k)s, 403(b)s and similar arrangements between the date of their call up and the end of their active duty. The law provides them the later of 2 years from their return from active duty (or 8/16/08) to repay a qualified reservist distribution (QRD) and thus avoid paying income tax on the distributions. Public safety employees, who often retire earlier than most workers due to the physical rigors of their jobs will enjoy a waiver of the 10% penalty tax on early distributions from a governmental plan. However, the early withdrawal penalty will still apply to public safety employees who choose to retire before age 50 and defer payment of benefits until after age 50. In addition, distributions from a governmental plan to pay for health or long-term care insurance premiums of a retired public safety officer will be excluded from income up to $3,000, so long as the money is paid directly to the insurer. 10
11 Adding Phased Retirement. Effective in 2007, plans can be amended to allow participants age 62 and who are still employed to commence their retirement benefits. This is at the option of the plan sponsor. Increase in Maximum Bond Amount. ERISA currently requires every plan fiduciary and every person who handles plan assets to be bonded. The amount of such bond is 10% of the plan assets handled each year, with a maximum bond amount of $500,000. The Act increases the maximum bond amount to $1,000,000 for a plan that holds employer securities. For purposes of this provision, a plan is not considered to hold employer securities if the only securities held by the plan are part of a broadly diversified fund of assets, such as a mutual or index fund. This provision is effective for plan years beginning after December 31,
12 IV. EGTRRA 2001 Provisions Made Permanent The Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA") made a number of changes to the federal tax laws governing qualified retirement plans and IRAs. These changes generally included an increase in 401(k), 403(b), and 457 plan and IRA contribution limits, the introduction of catch-up contribution for individuals age 50 and older, and the expansion of the types of plan distributions that can be rolled over to various other retirement plans. These changes were scheduled to expire at the end of The Act repealed the sunset of EGTRRA s changes so they are now permanent provisions of the Code and continue in full force (but no change for estate tax). More specifically the following stay as part of the rules: Contribution catch-ups ($5,000) Increased contribution limits o 402(g) deferrals ($15,000) permanent elimination of 403(b) maximum exclusion allowance calculation (but the 15 years of service catch-up remains) o 415 limits o 401(a)(17) compensation o IRA contributions ($5,000) 25% deduction for profit-sharing plans o deferrals not part of 25% o gross compensation rather than net Roth 401(k)/403(b) Easier rollovers No: o multiple use test o same desk rule o 1 year hardship hold/chop-down Safe harbor top-heavy exemption Faster vesting: matching contributions Plan loans to owners 12
13 V. Miscellaneous Provisions A. 529 Plans & Saver s Credit Made Permanent College Savings Plans. A last minute addition to the Act, the new law permanently extends the tax break for Section 529 plans, allowing earnings in such arrangements to continue to accumulate tax-free, so long as the money is used for qualified college expenses. Low Income Saver s Credit. Previously scheduled to terminate at the end of 2006, the Act made the Saver s Credit permanent. This provision gives a tax credit of up to $1,000 (50% of contributions up to $2,000) to single participants with less than a $25,000 adjusted gross income and to married participants with less than a $50,000 adjusted gross income (filing a joint return). The income thresholds now float with inflation beginning in The tax benefit is twofold: the participant s contribution reduces his or her gross income, which lowers tax liability in the year the contribution is made, and then the tax credit for that contribution further reduces the individual s taxes. The Saver s Credit is an important incentive for employees to make elective deferrals to either a 403(b) or 457(b) plan. The indexing of the income limitations should provide further savings opportunities to additional employees. Plan sponsors can play an important role in encouraging retirement savings by educating employees as to the existence of this tax credit. B. EPCRS Authorization Congress has given its blessing to the Employee Plans Compliance Resolution System (EPCRS) and provides that the IRS has authority to waive income and penalty taxes as part of problem resolution process. The Act urges the IRS to continue to update and improve EPCRS and to especially increase small employers awareness of the program and to take into account the special concerns of small employers. This includes extending the self-correction period for significant failures, expanding the availability of correcting insignificant failures under audit, and assuring that penalties and sanctions are reasonable in light of the violation. C. IRAs Rollovers by Nonspouse Beneficiary Permitted. The Act changes the rollover rules to now permit a nonspouse beneficiary to roll over an inherited retirement account or benefit from an employer plan to an IRA in the name of the nonspouse beneficiary such as a child, parent, partner or acquaintance. For example, rollovers could be made by domestic partners named as beneficiaries. The Act does not change the requirement that minimum distributions must then be made to the beneficiary. The beneficiary can either draw the money over a five-year period or over his or her life expectancy. In the past, such beneficiaries 13
14 had to withdraw the money as a lump sum and get hit immediately with taxes. Plus, the lump sum often pushed people into higher tax brackets because it was counted as taxable income. The rollover must be direct from the plan to an IRA (trustee-to-trustee transfer). This provision applies to employer plan distributions after December 31, 2006 (regardless of the participant s date of death). Tax-Free IRA Distributions to Charities. Prior to the Act, an individual who wished to donate IRA proceeds to a charity was required to include the proceeds in gross income from which a tax deduction was allowed for all or a portion of the donation. Because of the limitations on full deductibility of charitable contributions, such an individual often was not allowed a deduction for the full amount of the IRA proceeds donated to the charity, meaning that the individual paid tax on some portion of the proceeds even if the entire amount were donated. The Act now provides a federal income tax exclusion from gross income for otherwise taxable IRA proceeds donated to certain charitable organizations. (Donor-advised funds and private foundations are not proper charitable organizations for purposes of this income exclusion.) Under the Act, an individual who has attained age 70½ may make tax-free IRA distributions of up to $100,000 annually directly from an IRA to a charitable organization regardless whether the taxpayer itemizes deductions. The amount contributed must be fully deductible but the percentage limits are ignored. This provision does not apply to distributions from SEPs and SIMPLE plans. State tax treatment for a charitable donation of IRA proceeds is not changed by the Act. This provision is effective for distributions made in 2006 and continues to apply to distributions made through December 31, Direct Deposit of Tax Refund into an IRA. The Act authorizes the deposit of all or a portion of an individual s federal income tax refund directly into an IRA (provided that the individual otherwise qualifies to make an IRA contribution) and directs the IRS to develop a form to allow an individual to make such a deposit. This provision is effective January 1, 2007 and applies to 2006 tax year refunds to be paid in Conversion of Employer Plan Account into Roth IRA. The Act permits an individual to convert an employer plan account directly into a Roth IRA and pay the tax up-front, rather than first rolling the plan account into a traditional IRA and then converting that IRA into a Roth IRA, as was previously required. Conversion is permitted only if an individual s adjusted gross income is less than $100,000. This provision is effective for employer plan distributions beginning January 1,
15 D. Health and Welfare Benefit Plans Qualified Long-Term Care Rider on a Deferred Annuity or Life Insurance Contract. Taxation of earnings and gains on amounts invested in a deferred annuity contract does not occur until payments from the contract commence. If payments are made in the form of an annuity, an "exclusion ratio" is applied to determine the taxable amount of each payment. The Act now provides that, where long-term care insurance is provided by a rider to an annuity or life insurance contract, any charge against the cash value of the annuity contract or the cash surrender value of the life insurance contract made as a payment for the long-term care insurance is not includable in income. This provision is effective for annuity and life insurance contracts issued after December 31, 1996, but only with respect to taxable years beginning after December 31, Company-Owned Life Insurance. The Act provides that, with some exceptions, an employer is taxed on the portion of the death benefits received under a company-owned life insurance ("COLI") contract that is in excess of premiums paid. The employer will not be taxed on the excess benefit if the insured employee is (1) either an employee at any time during the 12 months prior to his or her death or is a director or other highly-compensated employee when the policy is issued, (2) notified before the COLI contract is issued, and (3) provides written consent to being insured under the COLI contract. The employer will also not be taxed on the excess benefit to the extent that the death benefit is paid to the insured s heirs or to a beneficiary designated by the insured, provided that the notice and consent requirements are met. This provision is effective for COLI contracts issued after August 17, E. Nonqualified Deferred Compensation Plans The Act amends Section 409A of the Code. 409A which governs the operation of nonqualified deferred compensation plans and the taxation of amounts deferred under such plans. Section 409A provides that funds that are either set aside in a foreign trust or become restricted for payment of nonqualified plan benefits upon a decline in the plan sponsor s financial condition are treated as transferred in connection with the performance of services (i.e., constitute taxable compensation, regardless of whether such assets are subject to the claims of the employer s general creditors). Consistent with its major focus on the funding of defined benefit pension plans, the Act provides that if (1) assets are set aside in (or transferred to) a trust during any "restricted period" ("restricted period" means (1) any period during which the employer s defined benefit pension plan (only plans with more than 500 participants are covered) is "at-risk" (2) any period during which the employer is in bankruptcy, and (3) the 12-month period beginning six months before the date the employer s defined benefit pension plan is terminated in an involuntary or 15
16 distress termination.) For purposes of paying deferred compensation to an "applicable covered employee" ("applicable covered employee" means the chief executive officer, the four highest compensated employees (other than the chief executive officer), and individuals subject to Section 16(a) of the Securities Exchange Act of 1934 of the plan sponsor or a member of the plan sponsor s controlled group. Such term also includes a former employee who was an applicable covered employee at the time of his or her termination of employment.) or (2) a nonqualified deferred compensation plan provides that assets will become restricted (or do become restricted) to provide benefits under the plan in connection with a restricted period, such assets are also treated as transferred in connection with the performance of services and are taxable to the applicable covered employee. Any subsequent increases or earnings on the transferred amount(s) are treated as additional transfers. As a further consequence, the applicable covered employee is subject to interest at the underpayment rate plus one percentage point on the underpayment of tax that would have occurred had the amounts been included in income when first deferred or, if later, the first taxable year the amounts were not subject to substantial risk of forfeiture, plus an additional 20% penalty tax. If an employer directly or indirectly provides the applicable covered employee with a "gross-up" payment to cover income taxes on compensation included in income under this provision, such payment is also taxable to the employee, interest is imposed on such payment as if part of the deferred compensation to which it relates and a 20% penalty tax also applies. The employer is denied a tax deduction for the gross-up payment. This provision is effective for transfers or reservations of assets after August 17,
17 VI. Qualified Retirement Plans Defined Benefit Plans Defined Benefit Pension Plan Funding Rules. When it comes to defined benefit pension plans of public-sector workers, the Act does not address funding issues in those plans because such plans are regulated under state law and not by ERISA. For private-sector plans and ERISA-complying plans of nonprofit organizations, the Act substantially revises the rules that govern a defined benefit pension plan sponsor s funding obligations by: requiring new factors and tables to determine Current Liability. Each participant s accrued benefit is converted to a present value. requiring contributions to an underfunded plan that are sufficient to fully fund the plan within seven years. requiring minimum contributions be made each quarter for certain underfunded defined benefit pension plans. mandating use of an interest rate based on a modified yield curve of investment-grade corporate bonds to determine the present value of a defined benefit pension plan s liabilities. restricting use of a defined benefit pension plan s credit balances (which arise from contributions in excess of a prior year s minimum required amount), a smoothing of assets concept. increasing the Funding Target from 90% to 100% of Current Liability. requiring larger contributions if a defined benefit pension plan is "at-risk". (Generally, a plan is "at-risk" for a year if, for the preceding year: (1) the plan s funding target attainment percentage, determined without regard to certain at-risk assumptions, was less than 80%, and (2) the plan s funding target attainment percentage, determined using the at-risk assumptions, was less than 70%. A plan s funding target attainment percentage is the ratio, expressed as a percentage that the value of the plan s assets (with certain reductions) bears to the plan s funding target for the year.) limiting benefit increases and acceleration of payments by underfunded plans; a change in the calculation of lump sums will generally reduce the amount of such lump sums. adding a special set of very detailed rules for Multi Employer Plans. increasing the limit on deductible contributions to 150% of a defined benefit pension plan s current liability and providing an increased DB/DC limit. 17
18 providing that airlines that opt for a soft freeze will have 10 years to meet their funding obligations; airlines opting for a hard freeze will have 17 years. requiring participant disclosure: an Annual Funding Notice will be mandated for all plans. changing the PBGC premiums methodology and method of calculation to reflect the added risk of underfunded plans, while leaving the PBGC flat rate premium unchanged (the surcharge is now permanent). These changes are generally effective beginning in
19 VII. Hybrid Plans Not Inherently Discriminatory. The new law clarifies that all defined benefit plans including cash balance and pension equity plans (PEPs) are not inherently age-discriminatory as long as benefits are fully vested after three years of service and interest credits do not exceed market rate of return. The age discrimination test will be satisfied if a participant s accrued benefit is not less than the accrued benefit of any similarly situated younger employer. There is no longer any permitted wearaway. The provision only operates prospectively and makes no inference as to past practice (leaving it to the courts to decide whether existing arrangements are discriminatory). However, the law clears the way forward for the conversion of existing DB plans to these more contemporary arrangements. This provision is effective for plan years beginning after
20 VIII. The Future of U.S. Retirement Benefits Some have predicted that the Act will hasten the abandonment of defined benefit pension plans and confirm that the 401(k) or 403(b) plan for eligible employers, with or without an employer match, will sweep the field. The decision of IBM, the antithesis of a faltering manufacturing company, earlier this year to freeze,, its defined benefit pension plan effective as of December 31, 2007 and to move its entire retirement program to a company- and employee-funded 401(k) plan has been seen as emblematic of this shift. Whether the Act s more stringent funding requirements for defined benefit pension plans will put more of them on a sound financial footing or instead cause their sponsors to freeze and terminate them remains to be seen in the coming years. The Act s encouragement of automatic enrollment arrangements through a new employer contribution-adp/acp safe harbor, preemption of state laws regulating wage withholding (at least for non-governmentals), and default investments that do not carry fiduciary risk may increase overall plan participation, which has hovered around 50% of the private sector workforce since at least When the new investment advice rules are added to the mix, the U.S. retirement system may now be poised to turn its back completely on the idea of employers bearing the investment and longevity risks inherent in defined benefit pension plans and to make the best of the rugged flexibility and individualism of 401(k) and 403(b) plans. The content of this Summary is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific facts and circumstances. 20
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