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1 Employee Retirement Income Security Act (ERISA) A Fiduciary is any person (eg, trustee, plan administrator, employer of cer and director plan sponsor, or investment adviser) who (1) Exercises any discretionary authority or control over plan management (2) Exercises any authority or control over management or disposition of plan assets (3) Renders investment advice for a fee or other compensation (4) Has discretionary authority or responsibility over plan administration B IRS involvement (1) All new plans must be submitted to the IRS for approval (2) Monitors operation of existing plans (3) Interprets existing law and issue regulations to be applied to all plans (4) Rules on matters of employer deductibility of plan contributions C Department of Labor (DOL) involvement (1) Monitors investment of plan assets and the actions of those in charge of administering plans (2) Shares with the IRS oversight of prohibited transactions D Created the Pension Bene t Guarantee Corporation (PBGC) (1) Mandatory insurance for de ned bene t plans; annual premium $19/year/participant (2) Plan termination insurance under PBGC (a) Guaranteed (basic) bene ts nonforfeitable i Retirement bene ts ii Death bene ts in pay status iii Survivor bene ts in pay status iv Disability bene ts owed or in pay status (b) Bene t must be a pension bene t (c) Participant must be eligible for bene t at time of plan termination (d) Nonguaranteed bene ts i Retirement bene ts in excess of PBGC limit ii Medical insurance premiums/bene t (e) Limitations i Monthly payments only no lump sum ii Guaranteed monthly bene t cannot be greater than employee s gross monthly income during the ve consecutive years of highest earnings iii Maximum age 65 monthly bene t adjusted annually along with the Social Security wage base (SSWB) changes ($3,579 in 2002) E Quali ed plan terminations (1) General information (a) QRP are established for the bene t of the participant and his or her bene ciaries (b) The plan must be permanent (2) Termination of plan (a) Termination cannot be implemented arbitrarily (b) Termination must be because of business necessity
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266 - Retirement Planning (c) Termination must follow speci c rules governing allocation of plan assets (3) Voluntary termination (a) Standard termination A single employer may terminate under this type of termination if the plan has suf cient assets for bene t liabilities Plan assets must be distributed according to ERISA (b) Distress termination A single employer may terminate under distress termination if the plan does not have suf cient assets to pay vested bene ts (where employer is in bankruptcy (BK) proceedings or will be able to continue in business only if relieved of outstanding pension liabilities) Employer must provide to PBGC actuarial certi cation of asset values and bene t liabilities (4) Involuntary termination The PBGC may terminate an underfunded plan for one or more of the following reasons: (a) Plan does not comply with minimum funding standard (b) Plan cannot pay bene ts when due (c) Plan has unfunded liabilities following a distribution of more than $10,000 to an owner (d) If plan is not terminated, loss to the PBGC is expected to be unacceptably high (5) Switching from DBP to DCP (a) Requires the DBP to be terminated (b) Creation of a new DCP (c) Voluntary standard termination (d) 100 percent vesting of affected participants (e) Distribution of plan assets in accordance with ERISA (6) Switching from a DBP to a cash balance plan (a) Requires only amending the DBP (b) Avoids vesting, distribution, and plan termination (7) Priority for allocating plan assets (must precede asset reversion) (a) Employee voluntary contributions (b) Employee mandatory contributions (c) Certain annuity payments in pay status (d) Other guaranteed (insured) bene ts (e) Other vested bene ts that are not guaranteed (f) All other plan-provided bene ts (8) Reversion of residual assets to employee (a) 50 percent penalty on assets reversions (b) Penalty reduced to 20 percent if employer (1) transfers 25 percent of potential reversion amount to a replacement plan, or (2) increases the participants accrued bene ts by at least 20 percent 2 Department of Labor (DOL) regulations ERISA of 1974 A Established guidelines for quali ed and nonquali ed employee bene t plans involving retirement income B Established nondiscriminatory rules for favored employee groups: highly compensated employees and key employees C Established vesting schedules for employees
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Topic 78: Regulatory Considerations - 267 D Requires adequate funding of pension plans 3 Fiduciary obligations: ERISA requires that a duciary act solely in the interest of the participants and their bene ciaries A duciary must A Act for the exclusive purpose of providing bene ts to participants and their bene ciaries and defraying reasonable expenses of administrating the plan B Act with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims This is the Prudent Man Rule C Diversify investments of the plan in order to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so D Act in accordance with the plan document and instruments governing the plan inasmuch as these documents and instruments are consistent with ERISA provisions This rule requires the duciary to strictly follow the terms of the plan document when making decisions 4 Prohibited transactions (between a retirement plan and a disquali ed person/party) A There are six prohibited transactions: (1) Sale, exchange, or lease of property (2) Lending money or extending credit (3) Furnishing goods, services, or facilities (4) Transfer to or use of plan assets by a disquali ed person (5) If a duciary, dealing with plan income or assets in own account (6) If a duciary, receiving consideration for own account from a party involved in the plan transaction (cannot receive outside pay) B Disquali ed persons/party for the purposes of Prohibited Transactions Rules (1) A duciary (2) Any person providing services to the plan (3) An employer or employee organization, any of whose members are covered by the plan (4) A 50 percent owner of (3) (5) A member of the family of (1), (2), (3), or (4) (6) A corporation, partnership, trust, or estate that is 50 percent or more owned by (1), (2), (3), or (4) (7) An of cer, director, 10 percent or more shareholder, highly compensated employee (earning at least 10 percent of the employer s total payroll), or a 10 percent or more partner or joint venture of person in (3), (4), or (5) C Tax consequences imposed on a plan committing prohibited transaction(s) this is a twotier penalty: (1) A penalty tax equal to 15 percent of the amount involved in the prohibited transaction is imposed on all disquali ed persons involved (individually and together) for each year or part thereof that the transaction remains uncorrected The 15 percent penalty carries over from year to year, and a new 15 percent penalty is assessed each year Because it is both a continuing transaction and a new transaction each year, this penalty tax pyramids (2) An additional penalty tax equal to 100 percent of the amount involved is imposed if the prohibited transaction is not timely corrected
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268 - Retirement Planning D Exemptions from Prohibited Transactions Rules (1) Receipt of bene ts under terms of the plan (2) Distribution of plan assets according to allocation provisions (3) Loans available to plan participants and bene ciaries (see Topic 76) (4) Loans made to an ESOP (5) Purchase or sale of qualifying employer securities by an individual account, pro t sharing, stock bonus, thrift or savings plan, or ESOP, for adequate consideration and without commission (6) Providing of ce space/services for the plan for reasonable compensation 5 Reporting requirements A Advance Determination Letter for new plans (ie, not prototypes) B Prototype/model plans IRS preapproved plans C Summary plan descriptions (SPD) for communicating plan bene ts to the participants and their bene ciaries
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