There are substantial efforts underway throughout the retirement market, attempting to wrap minds around the various aspects of providing lifetime income from DC plans. This includes efforts to design new programs and how to explain them to sponsors, fiduciaries and advisers who must make the ultimate selection election between competing choices.  It occurred to me that an old poster may well describe this current “lifetime income state of affairs.”

This poster, by an artist named Chris Mac, had found a home on the interior ceiling of my 1970 AMC Gremlin, right past the globed dome light I had installed. (Ahhh, the 70’s or, as cartoonist Gary Trudeau labeled in his Doonesbury toast to the ’70’s: “an armpit pf a decade…..”).

The poster was fanciful in its day. Oddly enough, however, it now pretty well encapsulates what happens when you try to take one thing (a retirement savings plan) and turn it into quite another (a plan to guarantee a pension).  Take another look at the picture, with all of its crazy moving pieces. Then think about just what it takes to to do what we are trying to do in the market: we are taking  a combination of sometimes very different insurance products (for example, think FIA, RILA, VA, SPDA, CDA, group and individual, which is still the only way you can guarantee lifetime income), mixing them with other plan investment features, under an arrangement  which is typically recordkept by someone other than the provider of the insurance or the other plan investments. Having spent a great deal of time over my (now very long) career developing these sorts of products, I can tell you that it all can work- but it is, as they say, all in the details.

Offering these programs through DC plans require the incorporation  of unique elements of ERISA and the Tax Code, while addressing a wide panoply of state insurance law issues and some pretty serious securities laws issues. It also involves managing quite a collection of disclosure requirements, while attending to the structure and relationships related to Individual Retirement Annuities and Individual Retirement Accounts  (yes, the rules between these two can differ) which may be necessary to make the benefits under these programs portable. Toss in, for healthy measure, a smattering of state trust and banking laws. Putting all of these pieces together in such a way that fiduciaries can be confident that the chosen program will, indeed, actually guarantee lifetime income is a challenge in itself.

Imbedding these products into a DC plan’s investment line-up also  requires technology of a sort that really hasn’t been available until recently, and involves moving funds regularly between a plan’s liquid investments which are daily traded through the typical fund clearinghouses,  and the not-yet-clearinghouse-connected insurance company accounts which provide the insurance guarantees. There was a time when we called this circumstance the handling of “outside assets.”

Then there is the additional prospect in the coming years that, should technology progress to this point, a variety of lifetime income options may be made available under a plan to accommodate plan participants’ own varying risk profiles.

In spite of this massive sort of infrastructure requirements that are needed to make DC lifetime become a reality, fiduciaries really don’t need to know the “ins and outs” of all of the details which are necessary to bind together and coordinate these programs. That is the task of some pretty serious techies. However, good counsel needs to be able to sort through the impacts of the elements of each of the designs being considered in order to arrive at a prudent assessment of how the guaranteed lifetime benefits will actually be provided to participants. This will not only involve getting familiar with a whole new vocabulary, but ultimately there needs to be at least a working knowledge of the different types of annuities which may be in play in any of these designs. This sort of mastery, if you will, may be necessary to be able to competently assist fiduciaries in discerning critical differences in these varying designs.

Putting these pieces together wrong can be disastrous. Properly done,, however, you may just end up with that rainbow….

 

In February of 2009, I wrote the following, an excerpt from one of this blogsite’s first articles:

“DC annuitization seems to be picking up a head of steam recently, with attention being paid to guaranteed income streams because of the effects of the recession on 401(k) and 403(b) accounts….So, the real question is now what? Most consultants, TPAs and lawyers have only a passing familiarity with annuities, particularly the new breed of annuities which offer innovative guarantees. How does one go about deciding which annuity is right, whether the fees are appropriate, and whether the insurance company is solvent enough?  How do you explain their features to plan participants, and what part does it play in an employer’s benefit program? What do you need to know about state guarantee associations, and what about rating agencies and the problems they now seem to be having?

In short, the things a plan has to look at to buy these financial guarantees creates quite a “fog” for an industry unaccustomed to them. The products are not difficult to understand, but their features, documentation and issues are much different than the typical plan investment we have been dealing with over the past few decades.”

There have been a significant number of developments since then, not the least of which being the SECURE Act providing three key new provisions to support lifetime income from DC plans (with the new annuity provider safe harbor, the new lifetime income disclosure rules, and the new lifetime income “portability”); invigorated efforts by all sorts of financial service companies to provide a variety of different lifetime income programs; and, finally,  a growing sense by plan sponsors and participants that lifetime income guarantees are important (see, for example this recent TIAA survey).

Even for all of this excitement, elements of that “annuity fog” I wrote about 13 years ago seem to continue to linger. I suspect it still has to do with the market’s continuing basic lack of understanding and how guarantees work in a defined contribution retirement plan. Take a look at the detailed workflow I had put together in 2007, which we had included in a 2013 lifetime income patent (#8,429,052 B2, of which I am actually the “co-inventor” with Dan Herr).  This illustrates the notion that there is a lot of “backroom engineering” required to make these programs work at the participant level. This is because of the fact that a contract with a licensed insurance carrier is still the only way any company can actually “guarantee” lifetime payments to a plan or its participants, even if you are using a CIT or an IRA custodian to provide the payment of the benefit. What this then means is that there has to be a lot of technical coordination between the computer  and recordkeeping platforms of a number of different service companies, including single plan trusts, CITs, IRA custodians, insurers and anyone else in the “chain” of providing these benefits.

It’s not that the all of those pieces that are being put together are all that complicated, but its that  they way the are put together is unfamiliar to most. Those advising plans  will need to become familiar with how all they work together (including their client/plans role in it all) and-inevitably- the new jargon with which we will all need to become familiar.

 

You may have noticed that the SECURE Act introduced yet another new twist to the 403(b) world: the Qualified Plan Distribution Annuity Contract (“QPDAC”-you may want to look at my prior blog related to these lifetime income acronyms). Its not that Congress was singling out 403(b) plans, as 401(a) and 457(b) plans now also have the ability to distribute the QPDAC. But, as in all other things 403(b)s, there are a number of unique twists to the rules which exist solely in the 403(b) world.

First let’s describe what a QPDAC is supposed to do. When a plan chooses a vendor to provide a “lifetime income investment” to plan participants, and then later deselects that vendor, a plan may permit participants investing in that “lifetime income product” to take an in-service distribution of that “deselected” product during the 90 day period prior to the date that that product is “no longer authorized to be held as an investment option under the plan.” A “lifetime income investment” is one under which there is a “lifetime income feature” which, for 403(b) purposes, means either an annuity contract or a custodial account which provides distribution rights which are not uniformly available with regard to other investment options under the plan (an interesting distinction….) and which have a feature which guarantees a minimum level of income  for the lifetime of the employee.

The purpose of this statutory provision is pretty clear: it is trying to protect participants who have accumulated lifetime income rights under a plan when a fiduciary deems it appropriate to get rid of that vendor. In some products, however, this means the only way to cleanse the plan of all those “tail” issues under legacy contracts would be (where the plan has the right to do so) to liquidate those products. The liquidation necessarily involves causing the participant, then, to potentially lose any accumulated lifetime income rights.

This is a valuable provision for both 401(a) and 403(b) plans. The special 403(b) twists, however,  relate to the fact that, unlike 401(a) plans,  403(b) plans are commonly funded, at least in part,  with annuity contracts. This raises a whole host issues which need to be addressed. For example, the typical 403(b) annuity contract is something called a “variable annuity” under which a participant accumulates investments and then is provided the right under the terms of the contract to elect distributions be made in the form of lifetime income payments (as opposed to a other types of  annuity products, like the fixed income annuity and others, where you are actually accumulating specific sorts of distribution rights).  So, key among those issues which need to be addressed include whether or not the mere existence of that right to purchase a lifetime income payout in that 403(b) variable annuity contract qualifies as a “lifetime income feature.” If it does, then,  this actually can provide for a valuable, though (given the 90 day election window, when combined with the 30 day 402(f) notice requirements)) limited, planning tool for limiting future “legacy” contract issues. If availability under the contract isn’t the definition,  however, difficulties abound in  how and where do you draw the “lifetime income feature” line. For example, what of the participant who has elected lifetime income payments under the contract, and who  has surrender rights where they can receive cash instead of the lifetime income payments? Given the growing stream of new lifetime income products being brought to the market, whatever definitions the regulators craft need to be sensitive to not hindering the development of innovative lifetime income features.

Then there is the question of the 403(b) custodial account lifetime income feature.  A custodial account holds liquid investments (required to be held in registered investment company shares), and is not an insurance contract which can guarantee any sort of payouts without being licensed as an insurance carrier. Does this mean tontines (see my March 12, 2020  post)? Now THAT is an innovative development.

This is but the very tip of a very large iceberg, and there are similar sorts of issues which need to be addressed on the 401(a) side as well. Congress attempting to address the serious issues of portability of lifetime income under  Section 109 is a laudable effort, but it will be incredibly demanding on regulators who will need to become better aware of the crazy world of annuities and lifetime income. Even identifying the issues to be addressed will be a task to itself.

 

This is a pretty exciting time in the DC marketplace. Years of work from a number of different quarters seem to be finally beginning to coalesce on the notion of  sanely “decumulating” assets from DC plans.  I wonder if a measure of this all may not be the growing catalog of acronyms associated with annuities, with the use acronyms being so deeply engrained in the retirement plans professionals’ daily practices and language.

So, let’s take a look. The DC lifetime income efforts received a substantial boost from the SECURE Act with the adoption of two new rules which are intended to increase the utilization by defined contribution plans of different sorts of lifetime income.  First there is SECURE’s Section 109, which  adopted a new Code Section 401(a)(38), and amended 403(b) and 457(b), creating the “qualified plan distribution annuity contract” (“QPDAC”) to permit an in-service distribution of an annuity contract  when the plan fires the annuity carrier (it is curious that there was no related changes to ERISA Title 1 under these rules, which would have been helpful). Then there is the SECURE’s Section 203, which mandated disclosures regarding lifetime, under which the DOL issued its Interim Final Rule executing the terms of the statute. That IFR created a class of annuities called “Deferred Income Annuities” (“DIA”s) to which special disclosure rules apply.

These followed the initial, nascent regulatory efforts to support lifetime income through the Qualified Plan Longevity Annuity Contract (“QLAC”) regs, published by the IRS under 1.401(a)(9)-6,  under which the purchase and distribution of certain types of annuity contracts receive special treatment under the required minimum distribution rules.

But QLACs are relatively new, considering the long-standing-and various-tax regulations and tax guidance recognizing the status of something called the the Qualified Plan Distributed Annuity (“QPDA,” of which the “QPDAC” appears to be a subset).

Let us also not forget other important acronyms which attach to certain insurance features and products through which lifetime income options (now defined (sort of) under 401(a)(38) which, by the way, includes the potential of non-insurance products which (theoretically, anyway) guarantee lifetime income). The most popular of of these appears to be the Guaranteed Lifetime Withdrawal Benefit” (“GLWB”), which is actual a pretty cool design-but also requires answering the related technical questions you don’t usually see in the qualified plan market, like  when is it “payment as an annuity,” and how the spousal notice and consent rules apply.

Then there are the insurance contracts themselves. The DC market is well familiar with the GIC and insurance company separate accounts, which are all part of a type of annuity called the “Variable Annuity” (“VA”) which have funded 401(a) and 403(b) contracts for generations. A VA is generally considered an “accumulation vehicle,” like mutual funds, which are designed to accumulate wealth which then will need to be transformed to lifetime income. But then there are other types of annuities with which we will all need to become comfortable, and which are just beginning to hit the DC market. They are designed to provide the participant the ability to accumulate a range of valuable income  options not found in a VA. In particular, there is the Fixed Income Annuity (“FIA”) which provides a variety of income accumulation options, and can be attached  to a GLWB feature. It has been popular in the retail market for years, and at least two major carriers have announced as being introduced into the qualified plans market. Then there is the the Registered Indexed Linked Annuity (“RILA”), which is growing in popularity in the retail market, and which is bound to make its presence known in the qualified plan marketplace soon.

There are more acronyms related to lifetime income, for sure, but this should give us all a heads up of things soon to come. The current state of affairs on this issue reminds me a bit of those early “daily valuation” days of a few decades ago, when few were familiar with the operation of daily valuation schemes, and when mutual funds were not the predominant form of DC investment.  Daily valuation relied heavily on the new “fintech” of the time, to boot, as todays decumulation options are reliant on today’s fintech.

Even though they look like they are the complicated “new kids on the block,” annuities and other lifetime income arrangements in DC plans are not all that difficult to deal with once you are familiar with them.  They are distinctly different than the accumulation vehicles with which we have grown so used to handling, its but a matter of gaining familiarity with them and how they operate. It appears that getting familiar with them will be a growing demand on the professional.

 

 

One of the most significant challenge facing PEP and MEPs is probably having to deal with “bad acting employers,” that is, those who won’t provide sufficient information to auditors to complete the audit for the whole plan;  those regularly  do not make timely submissions of elective deferrals; those who aren’t up-front with information about their controlled groups; or those who don’t perform any other of a number of mundane tasks with which any employer sponsoring a plan (or, in the case of a MEP or PEP, co-sponsoring the plan) need to complete. The challenge for the Pooled Plan Provider or the MEP lead sponsor is that many of the consequences for those failures can fall on everyone but the bad actor. There are a variety of ways to address those bad actors in these PEP plan documents, but they all take time-with often the curative acts  crossing plan years, where the damage has already been done for that year.

These common problems are barely addressed by  the SECURE Act’s fix to the “one bad apple” rule (called the “unified plan rule” by the IRS, under which a participating employer’s disqualification error will disqualify the entire plan), though there seems to be a common misunderstanding in the industry to the contrary. That new “bad apple” fix actually has very little operational impact on a MEP /PEP whose operations has been affected by that bad actor.   It provides only a narrow remedy to a narrow issue by which a P3 or lead sponsor can get rid of an employer who causes an operational/qualification error in the plan-though it may take up to a year to do so if one is to follow the IRS’s pre-SECURE Act proposed regs.

Frankly, experience tells us that the “unified plan”rule has not been a horrible problem for MEPs in the past, especially with the ability to fix most of these errors using EPCRS. PEPs and MEPS do actually use other, more expedited procedures to get rid of problematic participating employers where it is needed from an operational standpoint.

The more frequently occurring  problems which are not addressed by the SECURE Act are those caused by the time it takes to correct other more mundane problems which arise during normal plan operations that a bad actor can cause a plan. Let’s say, for example,  the bad acting employer does not provide the P3 with the employment data needed to accurately complete the form 5500, or it doesn’t provide the auditor with the access the employment records need to complete the audit. This becomes a potentially expensive 5500 filing issue for the P3 or lead sponsor which cannot be fixed by the IRS’s “unified plan” fix, especially if it occurs late in the plan year.  Even assuming the P3 is following the new IRS’s proposed disgorgement procedures to protect the plan from “bad apple” consequences, but  because of the timing demands of the IRS’s procedure, a plan year will almost always be crossed. This means that  this an error can cause a 5500 filing problem as well. The statuary fix to the “one bad apple rule” does not fix address this problem.

Among several other examples is the liability for ongoing prohibited transaction exposures, where significant deposits may not been made in a timely manner by the bad acting participating employer. It will takes a while to disgorge that employer from the plan, even if you are able to use that “expedited fix” I mentioned earlier. The statuary fix to the “one bad apple rule” does not fix this sort of exposure for the P3, either

What this tells us is that if Congress and the regulators are serious about making these sorts of aggregated plan arrangements a key solution to solving the small employer coverage problem, there is still much work to be done.

Conni and I have lurked in the netherworld of retirement plan administration for decades now, working on those things nobody ever sees. One of the ways we explain what we do to friends and  family is with a story about their own 401(k) and 403(b) plans. What we tell them is that when they go to their plan’s website to make a trade between two different mutual funds, it may be to them that its just a matter of making a couple of mouse-clicks, and the deal is done. But what really happens behind the scenes is those “clicks” typically  trigger the execution of a half dozen or so different (and usually complex)  contracts, often between just as many parties. These involve a series of complicated (yet taken for granted) data movements and cash movements in hopefully a  a timely manner which results (usually) in your account balance showing the properly executed trade the next day.

I refer to these sorts of arrangements, along with all sorts of others, as Plan Infrastructure. Plan Infrastructure often involves serious matters of intellectual property, as well as marrying technical software rules with the seriously intricate technical details of retirement plan administration. A programmer put it all in perspective for me once, as he explained to me that computers are actually just stupid machines. They ultimately just consist of a string of electronic switches where someone, somewhere still has had to decide which electronic switch to turn on or off and when……which is often where we get involved.

What is particularly striking in the past couple of years or so is the attention we have had to pay to the growing use of  “API” arrangements (or “application programming interfaces”) in the retirement plan space. API is fast becoming a major tool in plan administration, as technology demands that computers talk to each other in much more efficient ways. Think about it. Each computer program, and machine,  has its own electronic and data protocols upon which it relies, and which was designed for their own organization’s purposes and needs.  It takes a very serious effort for programs and machines of unrelated companies (and, indeed, often within the same business!) to coordinate these individually designed protocols when trying to work with another. APIs accommodate this effort.

What this growing “API” world is running into is what I consider a hallmark  in plan administration software, particularly in larger, established financial organizations. That is what I refer  to systems “calcification.”An organization’s systems have often been been used for decades, with the same software, often the same hardware, which all carry with it very strong inertia-driven legacy system issues. We used to joke that whenever a programming issue came up in a retirement system, the typically answer from the programmers tasked with the change was either “no” or “a million dollars and a year.” I have always been taken aback by the notion that we can buy  a hamburger and a coke with a credit card, which shows up quickly in your electronic account;  yet retirement organizations continue to struggle with providing this sort of data expertise in basic plan administration (where, arguably, the stakes are substantially higher than a purchase of a hamburger…).

Even beyond API, there seems to be a growing number of tools which may finally be giving vendors a chance to thrive in what has largely been a legacy driven retirement technology market. Making these sorts of technology accommodations is not easy, and there will be many firms which will not be able to compete over time.  A number of recent legislative initiatives, in particular, really contemplate advanced technology which makes technology expertise all the more critical for service providers. For example, just consider SECURE Act’s  PEPs or Groups of Plans, or portability of lifetime income options, or the distribution of 403(b) annuity contracts. Each of these initiatives demand enhanced technology and are intensely technology reliant. I do suspect that there will be at least a few tiers of service providers as the near future approaches, those who successfully adapt to technology, and those who don’t. And it will show up in all the work that the retirement professional professionals of all stripes do on a daily basis.

 

 

I was professionally raised in an era where retirement plan law was considered very much as a sub-specialty; and a backwater one at that. Even in law school, the tax professors did not teach the retirement tax sections, saying that it was so specialized that it would be of little use or interest to the tax law student. Even my eventual ERISA mentor, the late Roger Siske (of Sonneschein, now Denton’s),  used to joke that that the “deal” lawyers in his firm would only bring him out of the closet minutes before the closing of a corporate deal-often ending up with late-minute (and disruptive) surprises.

A lot has changed since then. When President Ford signed ERISA into law on Labor Day, September 2, 1974,*  he noted that “From 1960 to 1970, private pension coverage increased from 21.2 million employees to approximately 30 million workers. During this same period, assets of these private plans increased from $52 billion to $138 billion. And they are now increasing at a rate of $12-15 billion a year. It will not be long before such assets become the largest source of capital in our economy.”

President Ford’s statement was prescient. That $138 billion number? Well, the Investment Company Institute, the main mutual fund trade group in Washington DC, issued last month its retirement report for the 2020 fourth quarter with $22.7 trillion attributable to retirement plan assets alone, which is virtually the same size of the the market capitalization of the companies traded on the New York Stock Exchange as of years’ end 2020,  reported to have been $24.49 trillion.  Adding in the 12.2 trillion held in IRAs, these assets constitute over 2/3 of the reported value  of all publicly traded securities in the US., at  $50.9 trillion.

What does this mean? Well, it means that when the DOL or the IRS sneezes, so to speak, the capital markets have no choice but to listen. If you are wondering why the DOL’s rules regarding Economic, Social and Governance Investing (ESG) garnered a lot of attention, or why its proxy voting rules actually generated excitement, it is because of the practical influence those rules have on the operation of the U.S. capital markets. If you ever wondered why the prohibited transaction rules need to be taken seriously (other than the obvious, legal reasons), its that this massive sort of capital generates massive sorts of investment and distribution income-the payment and receipt of substantial portions of which will be governed by these rules. With this, of course, comes an ever increasing bar of attorneys and consultants needed to address these growing complexities. What a change a few decades will make; I would guess that law students hear little about retirement law being a sub-specialty any longer….

This influence seems to be  rarely discussed and, in practice, it seems to operate as in a sort of shadow-like way over  the larger economic world which we can  so easily otherwise dismiss or ignore when we  are focusing on our own “little,” discrete  techie issues.  But the influence is there, and has the hallmarks of being substantial.

 

*My thanks to Wayne McClain for sharing this photo, which he found on his way to looking up other things……

Mike Webb,  (formerly of Cammack Retirement, now being part of Captrust) who has been one of the true 403(b) thought leaders in the country for a number of years, runs a podcast series called called “Revamping Retirment.”  Mike wanted to have a conversation with me about annuities. We do talk about 403(b)’s in the video, of course, but also of many other annuities issues, like  the reluctance of sponsors to take up lifetime income, the value of annuities as well as their problems as they are currently being sold in the market. This resulted  in a refreshing  21 minutes or so of great conversation-watch out J.D. Carlson and his gang at Retireholics! Watch and listen to the Annuity Conversation here.

I hope you enjoy, but I do warn you: in the video, I’m in my full COVID-Beard #2….

 

The minute differences between 403(b) plans and 401(k) plans are often inconvenient, at best, and sometimes they produce serious conundrums in plan administration which can be difficult to resolve.

Prominent among these is the issue of “small amount” cash-outs from 403(b) plans. The ability to cash out small amounts for terminated participants is especially important for a number of “small plan” filers, who are on the cusp of having to comply with the large plan audit rules because of long lost terminated employees with individual contracts who are still counted int the plan’s census-even after eliminating those you can under Rev. Proc. 2007-71.

Consider this. Reg 1.403(b)-7(b)(5) provides that “In accordance with section 403(b)(10), a section 403(b) plan is required to comply with section 401(a)(31) (including automatic rollover for certain mandatory distributions) in the same manner as a qualified plan.”   So, 403(b) plans regularly adopt the mandatory cash out provisions, under which terminated participants are cashed out of their benefits of $1,000 or less, and amounts of less than $5,000 are directly rolled over to an IRA. Simple enough, one would think.

However, there is a significant technical issue: what do you do when  these “small amounts” are held either in individual contracts where the employer has no control, or in certificates under group annuity contracts where the terms of the contract which require participant consent to any distribution.  This has the potential to create a “form and operation” problem if the document simply requires a force-out (using, for example, the IRS’s 403(b) LRM language), but the investment contract does not permit  the plan administrator to either cash out or rollover out those amounts? It also raises the question on how do you reduce your terminated participant accounts to avoid an audit?

  • You could try to distribute the annuity contract (or now the custodial account). That would satisfy the $1,000 rule, but would fail the rule governing amounts between $1,000 and $5,000, which requires a rollover. This is because the distribution of an annuity contract or a custodial account is not a rollover.
  • You could, instead, draft language (as many have done) which apply the mandatory cash out rule only in instances where the underlying investment vehicle permits the sponsor to liquidate the assets. This seems to address the “no employer discretion” rule the IRS applies in applying the force-out rule, but this does not address the small filer problem.

This really means is that you need look to an entirely different method other than 401(a)(31)(B) to manage these small amounts, to the extent that there is no employer ability to force a cash distribution from a contract.

The analysis is an interesting one.  You start with the basic premise: under ERISA, forcing the small distribution from a plan before retirement age is generally not permitted without a statutory exception. ERISA Section 203(e) covers this. It specifically permits the mandatory distribution of an accrued benefit of less than $5,000. ERISA, however,  does not require the distribution to be in cash, nor  that it  be accomplished through a rollover, nor does it require uniform treatment for all participants or prohibit employer discretion.  This means that it is permissible to force an in-kind distribution of a “small” annuity contract from the plan under ERISA.

For Code purposes,  given that annuity distributions  (or selective distribution) will fail 401(a)(31)(B), is there anything else in the Code that would prevent you from taking these steps when you actually are creating your own, uniquely designed  distribution rule to which 401(a)(31(B) does not apply?  It appears that you can do this because of one of the those basic differences between 401(a) and 403(b):   411(a)(11)(A) (which is the Code’s “anti-alienation” rule) prohibits a forced distribution except, in pertinent part,  as provided under 401(a)(31)). However, 411 does not apply to 403(b) plans. There is no “anti-alienation” rule under the Code which applies to 403(b) plans.   The closest thing to “anti-alienation” in the Code which applies to 403(b) plans is 403(b)(1)(C), which only requires that “the employees rights under the contract are nonforfeitable.”  By distributing an annuity contract, or selectively distributing amounts from contracts where the employer has a right to liquidate, a plan meets the 403(b) rule.

Therefore, making a distribution of a small annuity contract (or selectively liquidating) seems to be a viable  solution to this problem.

There are a few details to make this all work, of course, (for example, there could be  plan document issues); and I’m not sure the IRS has ever considered this issue. There is always the possibility that the IRS could take a more limited view of things.  But I’m not sure there’s another solution to this issue, short of guidance on how the cash out rule applies in these circumstances.