EMPLOYEE BENEFITS HOT TOPICS IV Table of Contents
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1 1. DOL ENFORCEMENT AND PENALTIES FOR LATE AND INCOMPLETE 5500 FILINGS (May 10, 2011) The DOL initiated an aggressive program imposing penalties for failure to timely file forms 5500 and audit reports. This program describes the reasonable cause and appeals process with representatives of the DOL and how the system has changed as a result of E-FAST. The following topics are discussed: What happens when an employer fails to include an audit report with its form 5500? What is the process and timeline for getting and responding to DOL notices on late and incomplete 5500 filings? Can the employer get an extension to respond? What does the DOL consider to be reasonable cause that would reduce or eliminate the penalty? If the DOL issues an adverse Notice of Determination, what is the appeals process? Moderator: James R. Raborn, Baker Botts LLP, Houston, TX Panelists: Jonathan P. Matzkin, Senior Technical Advisor, Office of the Chief Accountant, Employee Benefits Security Administration, U.S. Department of Labor, Washington DC Lisa A. Tavares, Venable LLP, Washington, DC Serena G. Simons, The Segal Company, Washington, DC Susan P. Serota, Pillsbury Winthrop Shaw Pittman LLP, New York, NY Department of Labor, Office of Chief Accountant and Office of Administrative Law Judge Process Related to Failure to File Independent Qualified Public Accountant Report (IQPA) with Form 5500 provided by Lisa Tavares Employee Benefit Plan Auditing and Financial Reporting Models produced by the ERISA Advisory Council. Cases: DOL v. Airport Hospitality, Ltd DOL v. Spalding and Everflo Companies DOL v. Northwestern Institute of Psychiatry DOL v. Arenson Office Furnishings, Inc. DOL v. Product Management, Inc. Profit Sharing Plan DOL v. Dutch American Import Co., Inc. Employee Stock Ownership Plan ---Please Note: Decision is being appealed by DOL
2 2. WORKER CLASSIFICATION: WHEN AN INDEPENDENT CONTRACTOR IS REALLY AN EMPLOYEE (April 3, 2012) Improper classification of workers as independent contractors instead of employees causes a myriad of problems for employers. With the recent issuance of the IRS Voluntary Classification Settlement Program, there has been a renewed focus on how companies should be classifying their workers. This program provides: An overview of the worker classification issue and how it has evolved A summary of the new IRS Voluntary Classification Settlement Program A discussion of the advantages and disadvantages of using the new IRS Voluntary Classification Settlement Program and its implications for employee benefit programs Moderator: Susan A. Wetzel, Haynes and Boone, LLP, Dallas, TX Panelists: Ligeia Donis, Senior Technician Reviewer, Employment Tax Branch 2, Internal Revenue Service, Office of Chief Counsel, Washington, DC Victoria A. Judson, Division Counsel / Associate Chief Counsel, TEGE, Internal Revenue Service, Office of Chief Counsel, Washington, DC Daniel L. Morgan, Dickstein Shapiro, LLP, Washington, DC Avery Neumark, Rosen Seymour Shapss Martin & Company LLP, New York, NY Employee Independent Contractor Misclassification Issues (PowerPoint Presentation) presented by Avery E. Neumark, CPA, JD, Partner and Director of Employee Benefits and Executive Compensation, Rosen Seymour Shapss Martin & Company LLP IRS Reference Material
3 3. REGULATIONS AND ENFORCEMENT: AN UPDATE FROM THE DOL (May 3, 2012) The distinguished panelists discuss the following topics: EBSA s enforcement priorities, including national and regional enforcement projects. A review of those areas upon which the Department is focusing its investigations and its reasons will be discussed. Finally, the rationale for choosing certain plans to be investigated, how investigations are initiated, how they are conducted and advice for those under investigation will be provided. Update on EBSA s regulatory and outreach activities including issues around transparency and accountability for plans, employers, service providers and employees as well as outreach and educational initiatives. Moderator: Mary Ellen Signorille, AARP Foundation Litigation, Washington, DC Panelists: Hon. Phyllis C. Borzi, Assistant Secretary, Employee Benefits Security Administration, U.S. Department of Labor, Washington, DC Mable Capolongo, Director of Enforcement, Employee Benefits Security Administration, U.S. Department of Labor, Washington, DC EBSA Enforcement (PowerPoint Presentation) by Mabel Capolongo, Director of Enforcement, Employee Benefits Security Administration, U.S. Department of Labor, Washington, DC DOL Reference Material
4 4. EXECUTIVE COMPENSATION AND EXPATRIATE AGREEMENTS (May 22, 2012) This program covers the basic components required to be covered by an employer s expatriate agreements. Concerns related to benefits, compensation, housing, education, relocation, travel and other conditions of an international assignment are discussed. Special issues that come up when implementing the agreements and how to administer them are also discussed. Moderator: Marjorie R. Culver, Seyfarth Shaw LLP, New York, NY Panelists: J. Mark Poerio, Paul Hastings LLP, Washington, DC Celia M. Joseph, Fisher and Phillips LLP, Philadelphia, PA Christopher Bracebridge, Covington & Burling LLP, London, United Kingdom Katell Deniel Allioux, Salans LLP, Paris, France Crossing the Pond In Search of Better Executive Compensation Practices by Mark Poerio, Damian Myers and Nicholas Zouaghi-Maulet. Reprinted by permission from The Corporate Governance Advisor, March/April 2011.
5 5. A CHAT WITH ANDY ZUCKERMAN ON GOOD FAITH AND RETROACTIVE AMENDMENT AND DETERMINATION LETTER PROCESSING ISSUES (June 14, 2012) The distinguished panelists discuss the following topics: Good Faith and Retroactive Amendment Issues o When is a Good Faith Interim Amendment o What Happens if an Amendment is Determined Not to be Good Faith o Factors Supporting Approval of a Retroactive Amendment under EPCRS Proposed Changes to the Interim Amendment Requirements Under Consideration Determination Letter Processing o Status of Current Submissions o Changes that Affect Cycle B Submissions o Status of Master & Prototype / Volume Submitter Defined Contribution and Defined Benefit Plans o Status of Normal Retirement Age for Governmental Plans in the Determination Letter Program o Status of ESOPs and Cash Balance Plans in the Determination Letter Program Other IRS Initiatives Moderator: Mark A. Bodron, Baker Botts LLP, Houston, TX Panelists: Andrew E. Zuckerman, Director,EP Rulings & Agreements, TE/GE, Internal Revenue Service Washington, DC Donald J. Kieffer, Area Manager, EP Determinations, TE/GE, Internal Revenue Service, Mountainside, NJ Lisa A. Tavares, Venable LLP, Washington, DC A Chat with Andy Zuckeman on Good Faith and Retroactive Amendment and Determination Letter Processing Issues (PowerPoint Presentation) presented by Andrew E. Zuckerman, Director, EP Rulings & Agreements, Tax Exempt & Government Entities, Internal Revenue Service; Donald J. Kieffer, Area Manager, EP Determinations, Tax Exempt & Government Entities, Internal Revenue Service; Lisa A. Tavares, Venable LLP; and Mark A. Bodron, Baker Botts LLP Source Documents
6 6. WHAT TO EXPECT WHEN YOU RE EXPECTING A CLAIM UNDER HEALTH CARE REFORM (AND HOW TO AVOID ONE) (June 19, 2012) Since the enactment of the Affordable Care Act of 2010 (the "Act"), employers and other sponsors of group health plans have had to implement a host of reform requirements ranging from the expansion of coverage for children up to age 26 to covering the types of preventive care mandated by the federal government. Because some requirements depend on a plan s "grandfathered status", not all plans are subject to the same mandates. Moreover, the regulations implementing some of the reforms are not as clear as plan sponsors would like. These regulatory "gray areas" and the "gray areas" for those mandates that will take effect in 2014, including the employer mandate to provide "minimum essential coverage", could potentially lead to claims against plans and/or employers for non-compliance. During this teleconference, the panelists discuss the following topics: The Act s reform requirements The types of claims that plan sponsors can expect to be brought against the plan for non-compliance and the remedies available How the Act s external review requirements affects the claim process and possibly reduces the benefit claim litigation Best practices for avoiding these potential causes of action and limiting the plan s liability Moderator: Clarissa A. Kang, Tucker Huss, APC, San Francisco, CA Panelists: James R. Napoli, Proskauer Rose LLP, Washington, DC Teresa S. Renaker, Lewis, Feinberg, Lee, Renaker & Jackson, PC, Oakland, CA Power Point Presentation by James R. Napoli, Proskauer Rose LLP View from Proskauer: Health Care Reform Remains Alive and Well as DOL Enforces ACA Through Plan Audits by James R. Napoli and Kara L. Lincoln, Proskauer Rose LLP Overview of PPACA Claims by Teresa S. Renaker, Lewis, Feinberg, Lee, Renaker & Jackson, PC
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