Both Treasury and Labor continue to engage in efforts to accommodate the availability of defined contribution plans to provide participants the ability to choose to use a portion of their account balances to choose some level of guarantee lifetime income. The Treasury’s efforts have been especially notable, as Rev Ruling 2012-3 (which defined the spousal consent rules for plan annuities) and the proposed Qualified Longevity Annuity Contract regulation (which grants RMD relief for certain annuities) have established some very basic groundwork to enable DC annuitization to be broadly made available.
Both of these agencies continue to attempt to support this process, using their existing regulatory authority. Though there are a number of things which probably need legislative action in order to really make guaranteed lifetime income readily available, there are still a few things regulators may want to consider doing to help it all along:
1. Clarify the QPDA. Both the QLAC at 2012-3 rely on a fundamental premise, that the annuity contract, or “qualified plan distributed annuity” (the “QPDA”) can be distributed from the plan. Distributing annuities from plans has been around for generations, and the concept is well imbedded in various parts of the Code. However, it would be helpful to consolidate those rules into a single piece of guidance discussing the rules which will apply to these distributed annuities.
2. Title 1 Clarification. While the DOL is focusing on important issues such as education and disclosure of lifetime income amounts, there is actually an important structural issue it can also address. We all assume that a distribution of a QPDA is also considered a distribution for Title 1 purposes as well, mostly because of the "ordinary notions" of property law upon which ERISA’s plan asset rules are based. It s a fiduciary decision to purchase the right kind of an annuity, and any sort of post distribution protections which are needed can be built into such an annuity (such as not being used as an end-around the spousal consent rules). But there appears to be little reason not to treat annuities, even if they have a cash surrender value, or otherwise have an account balance, as a distribution from the plan under ERISA Title 1. This is particularly so where the participant has the right, instead, to take that same amount in cash rather than purchasing an annuity.
3. Rollover Guidance. 1.401(a)31 Q&A 17 makes it clear that you can roll money over from a distributed annuity. The language is quite striking:
“Q-17. Must a direct rollover option be provided for an eligible rollover distribution from a qualified plan distributed annuity contract?
A-17. Yes. If any amount to be distributed under a qualified plan distributed annuity contract is an eligible rollover distribution (in accordance with Section 1.402(c)-2), Q & A-10 the annuity contract must satisfy section 401(a)(31) in the same manner as a qualified plan under section 401(a). Section 1.402(c)-2, Q & A-10 defines a qualified plan distributed annuity contract as an annuity contract purchased for a participant, and distributed to the participant, by a qualified plan. In the case of a qualified plan distributed annuity contract, the payor under the contract is treated as the plan administrator. See Section 31.3405(c)-1, Q & A-13 of this chapter concerning the application of mandatory 20-percent withholding requirements to distributions from a qualified plan distributed annuity contract.”
However, it is has never been entirely clear that you can roll funds into a QPDA. Making this clear would increase the ability to consolidate and “port” these benefits, and to switch out of a contract that becomes unfavorable or from an insurer that becomes financially weak. The complications for this, however, lie in the securities laws, and whether or not this annuity would need to be a registered product.
In any event, there are a number of interesting steps the agencies can take within existing authority-even though I probably shouldn’t be thinking about this stuff while we’re surrounded by peak color season up in mountains….