Pensions Regulator Financial Support Directions Reasons published

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1 28th June 2007 Issue No: 27 Pensions Bulletin All change at the Department for Work and Pensions Following Gordon Brown s ascent to the premiership, the two key holders of pensions posts within the Department for Work and Pensions have moved on. Peter Hain replaces John Hutton as the secretary of state, whilst an as yet unknown individual is to replace James Purnell as the pensions minister. Some important consultations and Government decisions were expected imminently eg the deregulatory review of occupational pension provision. It is not clear how long these will now be delayed whilst the new ministers familiarise themselves with their responsibilities. Pensions Regulator Financial Support Directions Reasons published The Determinations Panel of the Pensions Regulator has published the reasons for its decision that the first Financial Support Directions (FSDs) be issued against Sea Containers Limited (SCL) (see Pensions Bulletin 2007/26). The document serves as a record of the oral hearing (with the trustees, SCL and the Regulator represented by Counsel) where the Panel determined to issue the FSDs. SCL has filed for Chapter 11 bankruptcy protection in the US. The potential effect of the FSDs is to strengthen the position of the trustees in relation to SCL s other unsecured creditors in the Chapter 11 proceedings. Currently the trustees standing as creditors is indirect and depends on the terms of the service agreement between SCL and the UK service company. It is uncertain whether or not the FSDs will be approved by the US Bankruptcy Court but if they are it will give the trustees a direct claim against SCL s assets, at the expense of the other unsecured creditors. It can be expected that the other unsecured creditors who were not represented at the Panel will energetically contest US court approval. However, the Panel took the view that, in effect, whatever the outcome of the US proceedings, the FSDs could not do the trustees any harm. The Pensions Act 2004 requires the Pensions Regulator to be of the opinion that it is reasonable to issue an FSD before doing so and sets out various matters which the Pensions Regulator must take into account when deciding what is reasonable. SCL s lawyer disputed that the reasonableness test had been met. The Panel disagreed. SCL also argued that the FSD notices were premature and that more time should have been given to SCL for them to formulate a proposal that could perhaps have been granted clearance. The Panel gave this short shrift. The Panel also rejected arguments that the FSDs would confer super priority status on the trustees as creditors and that the Pensions Regulator was acting inconsistently with its established practice of issuing clearance for transactions. The Pensions Regulator appears to have chosen a strong case to exercise its power to issue an FSD for the first time. The determination seems fairly clear cut, given the wide scope of the indemnity in the service agreement and that it had always been the intention of SCL to stand behind the obligations of SCSL its service company. Publication of the reasons gives a helpful insight into thinking at the Pensions Regulator on how and when to exercise its draconian moral hazard powers as well as into how the process works in practice.

2 ECJ delivers VAT blow to the Revenue The European Court of Justice (ECJ) in its judgment of 28th June 2007 has upheld the opinion of the Advocate General (see Pensions Bulletin 2007/11) in the case of JP Morgan Fleming Claverhouse Investment Trust plc, The Association of Investment Trust Companies v The Commissioners of HM Revenue and Customs. The case will now go back to the VAT and Duties Tribunal but the Revenue having suffered such an unequivocal defeat in Luxembourg it is hard to see how the Tribunal could find in their favour. So it is likely that the settled position will soon be that investment trusts do not have to pay VAT on their investment management fees. The intriguing question for the pensions industry is whether the principle of fiscal neutrality applies to personal and occupational pension schemes which should therefore be treated as special investment funds for the purposes of Article 13B of the Sixth VAT Directive (77/388/EEC) and thus be exempt from VAT on their investment management fees. If they are it would represent a substantial saving and potentially a windfall as the ECJ held that the Directive has direct effect and so schemes could make retroactive claims against the Revenue. However, the legal position in respect of pension schemes has yet to be confirmed and it is possible that any attempt to argue that pension schemes should be regarded as special investment funds for VAT purposes may have to go all the way back to the ECJ. Substantive comment from the Revenue is still awaited. This has the potential to be seriously good news for UK pension schemes but we are not there yet. Nevertheless, given this judgment, trustees may wish to take tax advice on how to proceed. Accounting for pensions New interpretation on balance sheets limits On 20th June the International Accounting Standards Board ratified an interpretation of the international pensions accounting standard IAS19 covering the recognition of pension scheme surpluses in company accounts and the potential effect of minimum funding requirements on the pension scheme asset or liability shown in the company accounts. This could require companies to include additional liabilities for schemes that have an accounting deficit, and also limit the pension scheme surplus companies can recognise on the balance sheet. Much of this was covered in the original draft interpretation ( IFRIC D19 ) produced in September 2006 (see Pensions Bulletin 2006/40). The final document confirms most of the general points but changes some of the details with potentially significant effects. The interpretation is expected to be formally issued in July for implementation for accounting years beginning on or after 1st January The key points are: Page 2

3 For plans in surplus under IAS19, the interpretation clarifies the existing rules that limit the asset that can be shown on the balance sheet to the total of available future refunds and contribution reductions. In particular, the interpretation says that companies must take into account minimum funding requirements in valuing contribution reductions. So a company cannot assume that it will take a contribution holiday if the plan is subject to a minimum funding requirement that would not allow this. In a big departure from how IAS19 has been interpreted in the past, the rules also apply to plans in deficit. For example, take a plan with an IAS19 deficit of 100m and a funding deficit of 200m, which the employer is making good with an immediate contribution. If the employer will be unable to recover these extra contributions in future through contribution reductions or refunds, it will have to show a liability of 200m on the balance sheet rather than 100m. The new interpretation is a significant development in corporate reporting for pensions, and could mean large additional liabilities for some companies. Companies may change their approach to scheme funding and pensions strategy to avoid an adverse impact on their accounts, and companies will need to take advice on how it applies to their specific circumstances. The IASB has deliberately not stated how the new interpretation applies to the UK s scheme funding regime, and it remains to be seen how it will be interpreted in the UK environment. Companies agreeing funding plans should be aware of the potential impact, particularly if funding targets are set above IAS19 levels. Pensions tax simplification New information requirements proposed HM Revenue and Customs (HMRC) has published draft regulations making further amendments to the 2006 Provision of Information Regulations. The 2006 regulations contain numerous requirements for the exchange of information between the Scheme Administrator, HMRC, members and other parties connected to a registered pension scheme. The main change is that pensions that were in payment on 5th April 2006 ( relevant existing pensions ) must be reflected in the annual statements provided to members by a scheme after the first post A-day benefit crystallisation event. Relevant existing pensions are capitalised using a factor of 25 to determine how much of a member s standard lifetime allowance has been used up. Where they exist, they must be shown separately on lifetime allowance statements issued following the death of a member or a benefit crystallisation event and annual statements thereafter, as well as on statements between scheme administrators following the transfer of crystallised rights between schemes. To make this requirement work, scheme members will have to tell a scheme administrator the amount crystallised by a relevant existing pension within thirty days of the first benefit crystallisation event that occurs in that scheme. Page 3

4 Other amendments include: in some circumstances, exempting the administrator of an annuity contract (which has been treated as a registered pension scheme) from the duty to report to HMRC when that scheme has been wound up; requiring that the reporting obligations also transfer when a lifetime annuity or scheme pension in payment is transferred between insurance companies; and correcting references to amended legislation in the regulations concerning Event Report 8A (when a stand-alone lump sum is paid). There is no indication at this stage whether these new requirements will be backdated to A-day or will only apply for future reportable events. If this draft is finalised as written then the main amendment appears to signal a change of position by HMRC the regulations currently do not require pre A-day pensions to be included in lifetime allowance statements allowing administrators to take a risk-based approach. This will be frustrating for administrators who have developed lifetime allowance statements based on their previous understanding and now have to revisit the work already done. It also seems likely that the duty placed on members to tell scheme administrators about relevant existing pensions will be either forgotten or lead to confusion. In summary, the pre A-day pension reporting requirements will lead to yet more administration over a technical point that will not affect the vast majority of scheme members whose benefits are nowhere near the lifetime allowance. Pension Protection Fund Churchill reappointed Chairman The Pension Protection Fund (PPF) has announced the reappointment of Lawrence Churchill as Chairman for a second three-year term. Following his re-appointment, Lawrence Churchill has set out five areas for improvement: the PPF s own financial position; refining the fairness and proportionality of the risk-based levy, now that the PPF has virtually complete scheme data; responding to levy payers requests for stability in levy amounts; focusing on communication with scheme members as more join the PPF and reaffirming the priority of consultation with schemes, employers and their advisers; and improving the efficiency of the process for assessing schemes for entry into the PPF. Page 4

5 Pensions Portability Directive First reading by the European Parliament The European Parliament has considered the European Commission s proposal for a Directive on the Portability of Pensions (see Pensions Bulletin 2007/24). Whilst the Parliament accepted the Commission s proposal for common minimum standards for the acquisition and preservation of pension rights it rejected the proposal to include the transferability of pension rights in the Directive. The Commission is now expected to produce a revised proposal for consideration by the Parliament at a later date. It increasingly looks like the Portability Directive is dead in the water. Despite the public utterances, our understanding is that within the Commission, certain member states are not prepared to progress a Directive which does not cover transferability, contrary to the Parliament which is not prepared to agree to one which does. It is also far from clear whether there is any political will from Portugal (the next EU Presidency) to drive the Directive forward. In any event, the UK s existing standards are already generally higher than any of the iterations of the Directive seen to date. Financial Assistance Scheme Annual report The annual report of the Financial Assistance Scheme (FAS), for the year ending 31st March 2007, has been laid before Parliament. Covering the first full year since the FAS was established, the report shows significant progress in the number of payments being made. At the end of the year 1,057 individuals had received payments from the scheme at an overall cost, over the year, of 3.8m. However the scheme cost just under 4m in the same year to run. The report indicates that much of the activity has concentrated on speeding up the time taken by trustees and administrators to supply data. However, this has not been an easy journey with much work having to be carried out to encourage trustees and administrators to attach a higher priority to this requirement. Financial Education OECD consults on good practice The Organisation for Economic Co-operation and Development (OECD) has launched a consultation on a draft code of good practice intended to provide governments and the private pensions industry with guidance on ways of improving their financial education programmes relating to private pensions. The draft code focuses on the main stakeholders roles and responsibilities in enhancing public awareness and capability on retirement income issues. These include the leadership and co-ordination role which governments can play, the information provision and training role which trade unions can undertake, how employers can ensure access to schemes and the important role which well-trained trustees and financial intermediaries can play. Pension Protection Fund Government feedback on Levy regulations Somewhat late in the day, the Department for Work and Pensions has published its formal response to two sets of draft regulations relating to the Pension Protection Fund levy, which were laid before Parliament in March (see Pensions Bulletin 2007/13). The Government appears to be simply putting on record its response to the consultation exercise so that the rationale behind the Levy regulations is in the public domain. Page 5

6 NISPI Newsletter Issue 28 NISPI (National Insurance Services to Pensions Industry) has published its latest newsletter covering various minor issues concerning contracted-out pensions. It includes: a reminder that where a Contributions Equivalent Premium (CEP) is not paid by the due date (typically six months after contracted-out employment terminates), liability for contracted-out benefits will remain with the tardy scheme; and an announcement of an enhancement to its service for calculating the technical amount for deemed buyback procedures in connection with schemes in wind up with insolvent employers. This Pensions Bulletin should not be relied upon for detailed advice or taken as an authoritative statement of the law. For further help, please contact David Everett at our London office or the partner who normally advises you. Lane Clark & Peacock LLP provides a full range of actuarial, consultancy, risk analysis and administration services to companies in the UK and internationally. LCP is part of the Alexander Forbes group of companies, employing over 4,000 people internationally. Alexander Forbes is a public company listed on the JSE in South Africa. 30 Old Burlington Street London W1S 3NN Tel: Fax: St Paul s House St Paul s Hill Winchester Hampshire SO22 5AB Tel: Fax: *PO Box 12 Suite 7, Pollet House St Peter Port Guernsey GY1 4AG Tel: Fax: *Oriel House York Lane, St Helier Jersey JE2 4YH Tel: Fax: LCP Belgium Marcel Thirylaan 200 Avenue Marcel Thiry 200 B Brussel Bruxelles, Belgium Tel: +32 (0) Fax: +32 (0) LCP Libera AG Stockerstrasse 34 Postfach 8022 Zürich, Switzerland Tel: +41 (0) Fax: +41 (0) LCP Libera AG Aeschengraben 10 Postfach 4010 Basel Switzerland Tel: +44 (0) Fax: +44(0) Actuarial Consultancy of the Year UK Pensions Awards 2005, 2006 & 2007 FT Business Pension and Investment Provider 2007 Investment Consultancy of the Year UK Pensions Awards 2007 FT Business Pension and Investment Provider 2007 All rights to this document are reserved to Lane Clark & Peacock LLP. This document may not be copied or used in anyway without prior permission from Lane Clark & Peacock LLP. LCP is a limited liability partnership registered in England and Wales with registered number OC LCP is a registered trademark in the UK (Regd. TM No ) and in the EU (Regd. TM No ). All partners are members of Lane Clark & Peacock LLP. A list of members names is available for inspection at 30 Old Burlington Street, W1S 3NN, the firm s principal place of business and registered office. The firm is regulated by the Institute of Actuaries in respect of a range of investment business activities. A member of the Multinational Group of Actuaries & Consultants Main offices in: AFRICA AUSTRALIA EUROPE NORTH AND CENTRAL AMERICA * No regulated business is carried out from these offices Page 6

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