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Bob Toth has more than 35 years of experience in employee benefits law. His practice focuses on the design, administration and distribution of financial products and services for retirement plans.

The structure and the language used by the drafters of the CARE Act in their crafting of the new participant loan repayment suspension rules seem to be both rare and stunningly broad: it appears to mandate, as a matter of federal law, that each loan repayment due through December 31, 2020  by COVID qualifying participants are suspended for one year.

This is actually a big deal. Section 2202(b)(2) of the CARES act, which mandates the suspension, did fool with the amortization schedules, or the timing and taxation of defaults under  Section 72(p) of the Tax Code, which is the section which governs the tax aspects of loans. In fact, it did not amend Section 72(p) at all.  Nor did it amend any part of ERISA Section 408(b)(1), which hold the ERISA rules governing loans.
Continue Reading The CARES Act Participant Loan Payment Suspension Rules Take an Unusual Approach in Making the Change; 403(b) Policy Loans Affected Differently

It seems that if policy makers want to have an impactful effect, suspend this tax during this crisis. I would not disagree with  my economist friends who may now caution against this seemingly rash move; to consider its long term impact; and to be concerned about the depletion of long term retirement savings. I am particularly sensitive to these concerns, of course, and they are valid.It  becomes a question of how to balance competing economic interests, but I suspect the widespread impact of that 10% penalty may weigh in favor of its temporary suspension.
Continue Reading The Immediate COVID-19 Retirement Fix Which Congress Missed in the Great Recession: Temporarily Suspend the 10% Early Distribution Penalty Tax

There is in the SECURE Act a volume of small, odd, technical  details which need to which attention needs to be paid. This statute is a technocrat’s dream. So much in there actually raises fundamental  infrastructure issues of the sort we rarely see. We are all familiar with the 80/20 rule, with the caution of not letting perfection become the enemy of good. Well, these “oddities” raise the exact inverse of the 80/20 rule: through my long years in retirement product development,  the highest risk of failure arise from the lack of understanding of how the smallest of details can tank a multi-million dollar project. The “80” may sound good conceptually and structurally, but it is in the implementation of the detail in the 20 which will determine the success of the project.

Continue Reading Tontines and PEP Late Deferrals Are Among the SECURE Act’s Impactful, Infrastructure Oddities

The one topic which seems to be on the forefront of a significant number of professionals, however, is the attempt to make sense of the new MEP and PEP rules. This is especially so because they follow so closely on the Association Retirement Plan regs finalized by the DOL and the “Unified Plan (“bad apple”) rule proposed by the IRS.  These commentators seem to be taking are common misstep, however:  it seems like (with rare exception) that each of these analyses are missing the assessment of the use of the “Group of Plans,”or “GoP”, in relation to MEPs and PEPs.
Continue Reading A Valid “Multiple Employer Plans”/ “Pooled Employer Plans” Assessment Requires Inclusion of the “Group of Plans”

Section 109 of the SECURE Act enables something called “Portability of Lifetime Income Options.” It  is one of those fundamental building blocks with which -regrettably or not, depending on your view of things-  all benefit professionals and all plan sponsors will have to eventually deal. Given that it is effective now, there is some urgency in understanding this thing. One of the challenges is that annuities within Defined Contribution plans are not generally well understood.
Continue Reading SECURE Act and “Portability of Lifetime Income”: Its the “Sleeper” in the Act of which Document Drafters Need to Be Wary

Under Section 112 of the SECURE Act, sponsors of “cash or deferred arrangements”  arrangements must allow long-term employees working more than 500 but less than 1,000 hours per year to make elective deferrals to their plans. At first glance, one may be under the mistaken impression that this is a rule which applies to all elective deferral plans, whether they be 401(k) plans, 403(b) plans or 457(b) governmental plans.  But impression is likely wrong: the statute, by its terms,  clearly only applies to elective deferrals under 401(k) plans, not 403(b) or other plans.
Continue Reading 403(b) and the SECURE Act: The New 500 Hour, Long Service Rule Does Not Apply to 403(b) Plans

“Aggregating” plans has now taken center stage with the passage of the SECURE Act. We now often find ourselves a bit muddled by the new array of terms with which we now need to deal.  Keep this as a handy glossary to guide when you find yourself caught in the middle of a conversation about “Multiple Employer Plans:”
Continue Reading A Basic “Comparison Glossary” for MEPS and MEP Types After the SECURE Act

The SECURE Act will make substantial and highly technical changes to some very specific elements of retirement plan laws, many of to which we have been putting a ta good deal of attention to (and written about here) throughout the years-like distribution of 403(b) custodial accounts; aggregating 5500s of unrelated plans; MEPs; and the fiduciary safe harbor for annuity purchases. Before we try wrap our heads around the details of all of these changes, I thought it would be helpful to list-in chronological order-the effective dates for these changes to help in prioritizing what to pay attention to first.
Continue Reading “Effective Dates” Listing for the SECURE Act Provisions

Long-time readers may recognize this as a version of the Mother’s Day blog I would periodically post in honor of Mom. It has been nearly two years since her passing, and I have not posted it since. But it seems that sharing these notions now, during Thanksgiving week, makes some sense. Hopefully, it may help