By Robert Toth on Posted in 403(b),Complex Prohibited TransactionsOne of the continuing confusions in how 401(a) rules apply to 403(b) plan involves the reporting rules related to the correction and reporting on the 5500 of one of the most common errors in any elective deferral plan: the late deposit of those deferrals into the plan. Neither non-ERISA or ERISA 403(b) will ever file a Form 5330. Ever. Even when the VFCP program is being used to correct the late deposit.
Adding to the confusion is that the Form 5500 instructions do not differentiate between 403(b) plans and 401(a) plans. It simply states that all "defined contribution" plans need to file the Form 5330 for late deposits, and pay the penalty tax. … Continue Reading
By Robert Toth on Posted in Auto-IRA,Complex Prohibited TransactionsState based auto-IRA programs continue to pick up steam, and may soon become prominent features of the retirement security landscape. Granted, there are a number of legal and logistical issues which need to be resolved before they can be fully implemented, but things are moving quickly.
So it is timely to discuss participant protections under these programs. A successful program must necessarily incorporate ways to protect employee deposits. The holding of employee deposits are not much of a concern, as employee deposits will be held in IRAs protected by highly regulated, commercial custody companies-as in any IRA program. The real challenge will be the protection of employees' payroll based deposits in getting to the IRA. … Continue Reading
By Robert Toth on Posted in 408b2,Complex Prohibited TransactionsThough disclosure may make the sales comp reasonable under 408(b)(2) (that is, if you view sales as a service), it still does relieve the 406(b)(2) adversity problem. To make any sense of this, it looks like you still need to comply with PTE 84-24 in addition to the 408(b) 2 disclosures.… Continue Reading
By Robert Toth on Posted in Complex Prohibited TransactionsIn short, a retirement plan product is really a package of financial and administrative services. This knowledge is especially important when one is tasked with understanding the reasonableness of fees related to retirement products and services. Purchasing investments through a defined contribution plan is so different than an individual making purchases for their own personal account, and it is horribly misleading to suggest otherwise.… Continue Reading
By Robert Toth on Posted in Complex Prohibited Transactions,Fiduciary IssuesPension funds and insurance companies share a little discussed attribute, one which I have mentioned from time to time on this blog: they are both great drivers of capital formation. One of the unique aspects of capital formation through these entities is the function of time: it takes time, to quote the bankers from the… Continue Reading
By Robert Toth on Posted in 408b2,Complex Prohibited TransactionsThe disclosures related to 408()(2) are really just a precursor to the next step: the imposition of the prohibited transaction taxes and penalties related to compensation which fails to meet those standards. It looks like the regs have the effect of shifting the application of the rules related to the "amount involved" in the transaction… Continue Reading
By Robert Toth on Posted in 408b2,Complex Prohibited Transactions,Fiduciary IssuesNow that the initial 408(b)(2) disclosures are out, the challenge becomes understanding them. Beyond just understanding whether or not the fees disclosed are reasonable (a challenge in itself), the disclosures do something arguably more important: they take us behind the looking glass, opening a window to a world with which most are not familiar, but… Continue Reading
By Robert Toth on Posted in 408b2,Complex Prohibited Transactions Many of you know of me as being well versed in 403(b) matters; others are familiar with my work in annuities; others still consider my familiarity with MEPS or ERISA broker dealer issues. But the heart and soul of my practice over the past nearly 30 years has really been the fiduciary rules-in particular, the… Continue Reading
By Robert Toth on Posted in 408b2,Complex Prohibited TransactionsIf plan assets are used to purchase a typewriter at Office Depot for the exclusive use by the plan in its administration by the plan sponsor (and the plan sponsor is not Office Depot, an affiliate, or its not a plan also covering Office Depot’s employees), the purchase is merely a direct expense of the… Continue Reading
By Robert Toth on Posted in 403(b),408b2,Complex Prohibited Transactions,Fiduciary IssuesThe DOL continues with its sensitivity to the challenges created for 403(b) plan sponsors in the transition to an employer accountable world. In today’s release of the final 408(b)(2) regs, the DOL provided tremendously needed relief for 403(b)plans. The language from the preamble speaks for itself: The Department was persuaded by commenters on the interim final rule… Continue Reading
By Robert Toth on Posted in 408b2,Complex Prohibited Transactions,Fiduciary IssuesFreedom and liberty are not merely themes sounded by politicians in political campaigns, or in rousing marches by military bands (though I am personally particularly fond of them!), nor are they ideas which you will typically see being discussed in a piece about retirement issues. But they are themes woven into the fabric of our… Continue Reading
By Robert Toth on Posted in B/D-IA Issues,Complex Prohibited Transactions Generally unnoticed in the DOL’s proposed fiduciary reg was the implicit recognition that the commissioned based sales function is important to the operation of the market, and that you can “sell” until the cows come home (a good friend tells me, by the way, that the cows actually do eventually come home), or until you… Continue Reading
By Robert Toth on Posted in 408b2,B/D-IA Issues,Complex Prohibited TransactionsThe DOL’s newly delayed 408(b)(2) regs are particularly striking in that they demonstrate a growing sophistication, and efficiency, on the part of the EBSA staff in its approach to retirement plan financial products and services. The regs are short, by almost any measure of federal regulations, yet they are packed with meaningful rules which will… Continue Reading
By Robert Toth on Posted in Complex Prohibited TransactionsLurking 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… Continue Reading