Business of Benefits : Employee Benefits Lawyer & Attorney : Law Office of Robert J. Toth, Jr. : 403(b) Plans, Annuity & Insurance Law : Business of Benefits Blog

One of the most maligned and misunderstood,  yet  one of the most valuable (and one of my favorite), DC plan investments is the the insurance company general account investment-typically referred to as the "fixed fund," the "guaranteed fund," or even sometimes the "stable value fund"(in some of its iterations).  These funds guarantee principal and a certain rate of return over a stated period of time.  These funds usually (except in an inverted yield environment) provide a much higher rate of return over money market funds, while providing a measure of security of which money market funds can only dream. if the insurance company properly balances liquidity with the rate of return, it is an invaluable offering.

The downside to these funds is that the higher rate of return is often keyed to liquidity restrictions.  Dick Van Dyke, in a song from the classic movie "Mary Poppins," actually does a great  job of describing why this must be,  in "Fidelity Fiduciary Bank." He tries to describe to his employee's son, Michael, the value of these investments:

You see, Michael, you'll be part of  

Railways through Africa

Damns across the Niles

Fleets of ocean greyhounds

Majestic self, amortizing canals

Plantations of ripening tea. 

I've included the entire clip from the movie, below.

Its tough making a short term payout from an investment in an "amortized canal." You see, insurance company general accounts are truly  great  capital investment vehicles. U.S. life insurers (who offer  these investments)  held in 2008, according to the ACLI, some $4.6 trillion-12% of which are invested directly in such things as planes, trains and automobiles, and other things upon which the development of world's infrastructure seriously relies, while also purchasing (at much greater levels) the bonds which allow these infrastructure investments to be built.  Investing in these general account funds is truly taking part in an unusual sort of investment in which most plans-or even the majority of mutual funds-do not have the scale, wherewithal or structure, to partake. These are, in short, pretty cool investments.

Bur insurers have often mishandled the balance between liquidity and return, often not paying sufficiently for the long term lock up, or sometimes by the application of seemingly  mystical rules to the application of "market value adjustments" when cashing out early. The good funds still provide relatively high returns, while maintaining substantial liquidity. 

So what does 408(b)(2) have to do with all of this? Arguably, everything.  Ignoring the issue of insurer solvency for a moment,  in a world where the lack of transparency translates into higher costs to plans, and where there is concurrently serious consideration being given to increased use of insurance guarantees (including those found in general account investments) to provide greater retirement security, the regs are eerily silent on insurance transparency. With all the discussion of being concerned with things like "indirect compensation" and trying to figure just how much revenue a party to the plan is generating from the plan, an important piece is missing.

Technically, how the regs accomplish its silence is by way of 2550.408b-2(c)(1)(iii)(A), which specifically excludes investment products under which the underlying investments are not considered plan assets under 2510.3-101.  The DOL provided a good explanation on how this works in an information letter in 2004, explaining something called "guaranteed benefit policies."

This silence really is not the fault of the DOL reg writers.  It is just that the standard manner in which we have grown to evaluate equity investments over the past couple of decades just does not match up well with centuries' long, valuable practices of pooled capital investment of insurance type of entities.

We do need to devise a useful way under which plans and their fiduciaries can shop these products, to understand whether the plan is being paid sufficiently for its risk in accepting liquidity restrictions, and generally what sort of revenue (note, not profit) the insurance company expects to generate over time from the plan.  Here, the risk is not so much insurer insolvency, but being locked into a relatively poor (meaning, not competitively priced for a similar investment)  portfolio rate-yes, these general account managers do sometimes screw up, though the state regulatory structure helps minimize catastrophic errors. It is a risk for which the plan should be properly paid. Where there is not adequate consideration for that risk, the plan's contract  needs to notify the plan of changing rates, and the ability to reasonably get out of the contract if the rates go south. 

From the fiduciary side, it would seem appropriate to be paid for a long term interest rate risk. If there is insufficient return for that risk, then the contract purchased needs to provide liquidity. 

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In the following "Mary Poppins" clip, Michael opts to spend his tuppence on feeding the birds-an option that, if taken by a fiduciary,  would not likely be well received by Tim Hauser at the DOL's Solicitor's office or by Phyllis Borzi's staff.....

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Any discussion on any tax issue addressed in this blog (including any attachments or links) is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code or promoting, marketing or recommending to another person any transaction or tax-related position addressed therein. Further, nothing contained herein is intended to provide legal advice, nor to create an attorney client relationship with any party.   

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Lurking darkly in the background behind all the recent discussions of fee disclosure and how the prohibited transaction rules apply under 408(b)(2), is something most of us in the benefits world typically pay little attention to: the U.S. Criminal Code.

We all have a general knowledge that kickbacks and racketeering schemes of any sort are illegal.  But many do not realize that there is a specific "anti-kickback" rule applying to ERISA plans that is NOT found in ERISA, but instead under criminal law.  I invite you to read the following. I rarely cite the entire section of any statute, but the language of this one is so striking (and so unfamiliar to most of us, and not referenced in most benefits books), I thought it would provide useful reading. This section, by the way, only applies to ERISA plans: 

18 USC §1954. Offer, acceptance, or solicitation to influence operations of employee benefit plan

 

Whoever being—

(1) an administrator, officer, trustee, custodian, counsel, agent, or employee of any employee welfare benefit plan or employee pension benefit plan; or

(2) an officer, counsel, agent, or employee of an employer or an employer any of whose employees are covered by such plan; or

(3) an officer, counsel, agent, or employee of an employee organization any of whose members are covered by such plan; or

(4) a person who, or an officer, counsel, agent, or employee of an organization which provides benefit plan services to such plan

receives or agrees to receive or solicits any fee, kickback, commission, gift, loan, money, or thing of value because of or with intent to be influenced with respect to, any of the actions, decisions, or other duties relating to any question or matter concerning such plan or any person who directly or indirectly gives or offers, or promises to give or offer, any fee, kickback, commission, gift, loan, money, or thing of value prohibited by this section, shall be fined under this title or imprisoned not more than three years, or both:

Provided, That this section shall not prohibit the payment to or acceptance by any person of bona fide salary, compensation, or other payments made for goods or facilities actually furnished or for services actually performed in the regular course of his duties as such person, administrator, officer, trustee, custodian, counsel, agent, or employee of such plan, employer, employee organization, or organization providing benefit plan services to such plan. 

The language of the statute is broad, and looks at first glance to be able to cover a number of poorly designed compensation schemes or service arrangements. We all know that doing something as foolish as buying a plan sponsor a car in order to keep its 401(k) business would clearly step over the line. But there some other, and familiar, arrangements which could raise some issues.

Take, for example, a sales rep which has no service agreement with a plan and who is compensated solely by commissions. Let us say this rep gets word that a 401(k) client is considering moving its business to a different vendor (and a different sales rep). The rep approaches the clients and offers to pick the TPA fees of the plan if the plan continues to purchase the investment products through him.  It is clear that this kind of arrangement can be sound when it is made properly part of a negotiated service agreement with a plan vendor.  But with a sales rep without a service agreement- a problem?

Another example could be "tying" arrangements, where a bank has a client's 401(k) plan as well as holding a corporate loan with the plan sponsor.  The plan sponsor notifies the bank that it is moving its 401(k) to another institution. The bank responds by threatening to call the loan, or not to extend any future credit if the 401(k) plan is moved- a problem?

This is a criminal statute. Unlike the "civil law" ERISA prohibited transaction rules where "intent" doesn't matter,  "scienter" (that is, intent) is still a critical element.  But still the word is caution.  Compliant compensation schemes are difficult enough to design, given the prohibited transaction rules and the forthcoming 408(b)(2) regs. But don't forget about the non-ERISA criminal rules when addressing these issues.

If, by the way, you find yourself in these sorts of circumstances, it would be helpful to go talk to your lawyer.

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Any discussion on any tax issue addressed in this blog (including any attachments or links) is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code or promoting, marketing or recommending to another person any transaction or tax-related position addressed therein. Further, nothing contained herein is intended to provide legal advice, nor to create an attorney client relationship with any party.   

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As 403(b) plan sponsors continue to understand and apply new regulations, meet expectations in their roles as fiduciaries and seek assistance with some very tough decisions, the comparison between 403(b) and 401(k) plans generally takes place.  Spending time pondering this question is not a waste of time.  However, there is NO blanket statement declaring either plan type is better than the other for every plan sponsor.  Facts and circumstances must be identified and considered before starting up a new plan or terminating a plan possibly with the intent to set up a different type of plan.

Expenses related to plan documentation, investment products and administrative services are usually the first items to hit the list for consideration on what plan is best suited for the plan sponsor. Weighing the cost is certainly an appropriate approach.  But don't end up paying the piper because you failed to consider potential limitations with your new plan design... 

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It had to happen if we kept at this long enough. We have written often over the past few years on the minutiae of 403(b), particularly where they demonstrate the often goofy differences between 401(k) plans and 403(b) plans. We have also written some on the finer technical rules which apply to plan distributed annuities, which tend to apply in some pretty unusual ways.

Now there is the rare opportunity to discuss the "crossing" of these two worlds, hopefully without the cataclysmic effect of the crossing of the "proton ray gun" beams in the original Ghostbusters movie. These two areas find a common theme in the handling of mandatory cash outs to terminated employees, of all things.

I make light of this point, but minutiae like this is not without important effect: the "form and operation" plan document rules require us to get it right, or risk serious tax consequences.

It goes something like this: Code Section 401(a)(31) contains the direct rollover rules and applies to both 401(a) and 403(b) plans. Oddly enough, this section also contains the mandatory cash out rules which applies to account balances of less than $5,000 (I say "oddly" because 411(a)(11) actually has the old rule, which still exists, which permits the distribution without consent of amounts less than $5,000 from a tax qualified plan) for terminated participants.

Now suppose you have a 403(b) plan funded with individual annuity contracts, and you diligently drafted 401(a)(31) language containing a mandatory cash-out clause. This rule, buy the way, requires cash-outs to be  made for all participants, and into an IRA, if the plan chooses to have cash outs..

It appears to me as if you may have a problem on your hands.  If the Plan Administrator cannot access those funds in the individual annuity contract, how is it to "mandatorily" cash out sums less than $5,000 and roll it into an IRA when it has no control over those assets? Sounds like a serious "form and operation" challenge.

The real answer probably lies in the  oft-overlooked section 401(a)(31)(C), which only requires a mandatory rollover if the force-out would otherwise be subject to immediate taxation. Forcing a 403(b) annuity contract out of a plan as an in-kind distribution does not appear to have to comply with 401(a)(31), because that force out would not be a taxable event. This means you can turn to ERISA Section 203(e) (Code Section 411(a)11 does not apply to 403(b) plans) which permits the distribution, without consent, of the vested "present value of the nonforfeitable benefit. " It does not require an IRA, or a rollover, or even a cash distribution. The in-kind annuity account distribution seems to work.

A handy tool, by the way, to help manage the Form 5500 "100 participant" rule for audit purposes.

This is where those "beams cross" into the Plan Distributed Annuity (PDA) world.  A 401(a) plan could, instead of following the 401(a)(31) rules,  merely purchase a PDA in the name of the participant without that being a taxable distribution, either. Code Section 411(a)11 DOES apply here (as well as ERISA Section 203(e), in most cases. It uses the term "nonforfeitable accrued benefit," not cash lump sum).  Perhaps a handy tool  clean out certain kinds of plans.

By the way, this further demonstrates the caution one should use: ERISA 203(e) will not apply to governmental and church 403(b)plans-which raises the possibility of forcing out larger amounts. You do not save on the Form 5500 and audit fees (there are none), but it offers some interesting planning opportunities.

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Any discussion on any tax issue addressed in this blog (including any attachments or links) is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code or promoting, marketing or recommending to another person any transaction or tax-related position addressed therein. Further, nothing contained herein is intended to provide legal advice, nor to create an attorney client relationship with any party.   

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Growing up, I often listened to Paul Harvey with great fascination. His stories were most interesting in topic alone. However, I grew to understand that capturing even the smallest of details could shift the entire meaning of a story. I must confess my intrigue with details is probably deeply rooted with years of listening to Mr. Harvey, a broadcasting legend.

The significance of details has once again been confirmed. Just last week, I read an article titled “Recession No Hindrance to 403(b) Transformation” on planadviser.com.

Several colleagues and I found we were skeptical with the results because the survey indicates that plan sponsors are adjusting well to the final 403(b) regulations. These results are simply not consistent with the perception in the market.

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 ASPPA, AARP and WISER  are taking the bull by the horns and, rather courageously, are putting representatives from the mutual fund industry and the annuity industry together on panels in the "Lifetime Income Summit" to be held on May 21.

The agenda promises to be an interesting one. An insurance industry representative will chair the mutual fund panel on lifetime income, while a mutual fund representative will chair the insurance industry panel.

Both have much to learn from each other in this discussion, and I do hope they do listen. The industry responses to the DOL's and IRS's RFI on lifetime income show the continuing stark division between these two industries: Insurers, of course, love the thought of a retirement policy which favors lifetime guarantees from defined contribution plans;  with the mutual fund industry taking the stance that such is not needed from DC plans.

Both should take a closer look at their positions, as their economic self interests actually can align well here.  While it is true that only insurers have the legal ability to pool interests and actually provide guarantees, it is the mutual fund industry that has the products that make these guarantees attractive.

Participants love accumulating wealth in mutual funds, and even where annuity contracts are used for accumulation, the investment funds in those annuities are managed by mutual fund investment managers. But participants also love the security that only a pooling of interests can provide.

Folks from these two industries really need to scrap their historical stance on this issue, as its beginning to look a lot like a fight for the sake of a fight.  Plan and plan participants need investment products which can best be had by cooperation by these two groups-they should work together to find ways to embed guarantees in mutual funds; modify regulations to allow guarantees on DC plans that allow continued equity exposure; to find ways to allow participants a safe way to purchase insurance in DC plans to preserve a chunk of their mutual fund gains; and other assorted designs.

Forget about bickering about annuities. Find ways to allow plan participants the best of both worlds, combining the good guarantees with the good investment funds as a way to help provide their customers a chance for a secure retirement.

For , as these sorts of protections should be drawn from elsewhere than defined contribution [plans.

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Roger Siske, dear friend, mentor and traveling companion had taught me much about the art of travel, about enjoying myself well while on the road for what seems at times like far too many hours. One of the places to which we had traveled several times together was San Francisco, home of the two labyrinths of Grace Cathedral.

The Cathedral's Labyrinths are part of an impressive church meditative tradition.  It is a walking maze,  with many interconnecting paths,  offer blind alleys and cul-de-sacs as part of the design, often deliberately disrupting the sensibilities of the human mind. 

It is with pleasure I think of visiting those mazes, not of the one's created by the 403(b) rules regarding church plans.

It truly is an odd maze, one where differences in the manner in which a church approaches its missions reflects in a different way in which the rules will apply. This short piece will hopefully help wend through the maze.

"Church" is really used in three different ways in governing 403(b) plans, to different effect:

1.  Definition of Church Plan for ERISA purposes. This definition determines whether or not a 403(b) plan (or 401(a) plan, for that matter) will be subject to ERISA or not. it is the definition under 414(e) of the Code (ERISA, itself, doesn't define church):

A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches. 

An organization, whether a civil law corporation or otherwise, is associated with a church or a convention or association of churches if it shares common religious bonds and convictions with that church or convention or association of churches

This is a broad definition of church, effectively meaning the church itself and any other org which shares its common religious bonds.  This would include the likes of church hospitals and church affiliated universities.

2.  Definition of "Church related organization."  The 403(b) regs uses the term 414(e) definition of church, and calls it a "church related organizations" (note the emphasized language in the 414(e) definition above) when it addresses most issues which the typical practitioner sees as a "church."  It is used for identifying what organization can have a retirement income account; defining a minister under 403(b) (you don't need to be a minister of a "steeple church, below, to be a minister) and church employees; qualified organization for the 15 year long service catch-up; permissive disaggregation; and the extended effective dates or specific 403(b) reg purposes. 

The only special treatments attendant to this designation are those listed in the prior sentence.  The other 403(b) rules which apply to other 501(c)(3) orgs apply to "church related organizations" which are not "churches," as defined below.

3. Definition of "Church."   "Church," under the 403(b) regs, is a very limited term. It only refers to "steeple churches," (as defined under 3121(w)) and determines what kind of church organization gets extraordinary treatment under the 403(b) regulations. The plans offered by these churches are still 414(e) church plans for the rest of the regulation's purposes, and not ERISA covered (unless they elect otherwise). The special treatment is that they do not need plan documents; nor are they required to perform discrimination testing. "Church," for these purposes, is defined as follows:

 “Church” means a church, a convention or association of churches, or an elementary or secondary school which is controlled, operated, or principally supported by a church or by a convention or association of churches, and includes a “qualified church-controlled organization.”  This means any church-controlled tax-exempt organization described in section 501(c)(3), other than an organization which—

 

(i) offers goods, services, or facilities for sale, other than on an incidental basis, to the general public, other than goods, services, or facilities which are sold at a nominal charge which is substantially less than the cost of providing such goods, services, or facilities; and

(ii) normally receives more than 25 percent of its support from either (I) governmental sources, or (II) receipts from admissions, sales of merchandise, performance of services, or furnishing of facilities, in activities which are not unrelated trades or businesses, or both.

Any discussion on any tax issue addressed in this blog (including any attachments or links) is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code or promoting, marketing or recommending to another person any transaction or tax-related position addressed therein. Further, nothing contained herein is intended to provide legal advice, nor to create an attorney client relationship with any party.  

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Sheri Fitts, marketing Guru of The Standard, and I put on a webcast which detailed the steps an advisor can take in assisting their clients in winding their way through the maze of ERISA issues that 403(b) plans need to deal with. This webcast includes some thoughts on moving a plan from non-ERISA status to ERISA status.  The webcast is just over 45 minutes long, and can be accessed for free by following this link. There is an accompanying, detailed checklist, which you can download by this link. 

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Any discussion on any tax issue addressed in this blog (including any attachments or links) is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code or promoting, marketing or recommending to another person any transaction or tax-related position addressed therein. Further, nothing contained herein is intended to provide legal advice, nor to create an attorney client relationship with any party.  

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BNA's  Tax Management Advisory Board published a Memorandum as an "Advisory Board Analysis" last week, "Income Guarantees in Defined Contribution Plans."   Click on the title to download a copy. It speaks in some detail of the technical issues confronting the provisions of annuities through a defined contribution plan.

I authored this paper, and have also committed to Al Lurie and NYU to do an even more detailed paper in the NYU "Review of Employee Benefits and Executive Compensation: 2010" to be published this summer. This paper will be a bit more extensive, further detailing the ERISA Title 1 issues related to these contracts, as well as a number of other points made in the BNA paper.

I look forward to your comments.

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Any discussion on any tax issue addressed in this blog (including any attachments or links) is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code or promoting, marketing or recommending to another person any transaction or tax-related position addressed therein. Further, nothing contained herein is intended to provide legal advice, nor to create an attorney client relationship with any party.  

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