With the current attention being paid to annuities by the recent activity of Treasury, those plan sponsors and their advisors who may be interested in annuities in their 401(k) plans may also be tempted to take a close look at the wide array of annuities that are available for the IRA and individual marketplace for their selections. After all, there seems to be a lot of different choices that are available out there, and some of the features offered look pretty good. These include a wide array of guarantees and and other things which may well seem appropriate for many 401(k) plans.

Think twice, however, before attempting to purchase what I call a "retail," or "nonqualified" annuity for a qualified plan. Annuities which are designed to be purchased by individuals outside of qualified plans, or are designed for IRAs, may actually cause a number of difficulties for the 401(k) plan. They really should only be used in small, specialized arrangements where the plan sponsors are cognizant of the special challenges presented by these products.

These retail products are typically designed to be sold individually by insurance agents and registered reps to what is sometimes called the "high net worth" (HNW) market. The are often sold as part of complex estate planning efforts, or for business succession. What generally makes these things inappropriate for the typical 401(k)plan is that:

 –They are complex. Simple annuities can be complicated enough, but the terms and conditions for the sometimes exotic guarantees within the typical GMWB contract or GMAB contract can make your head spin. As a fiduciary, it will be difficult to explain these complications on a mass basis, and many of them are just inappropriate for the smaller account balance.

-They can be expensive. In part because they are so complex, and can take a bit of effort to fit into the financial scheme of the policyholder, their fees are can be a bit "salty."  The mortality and expense charges are generally well above those you will find in a 401(k) plan, and the commissions paid on these products can be significant.

-Lack of ERISA compliance support.  Financial service companies are interesting places. Products sold to individuals typically are on different systems, and administered by different staffs, than those sold to retirement plans.  Administratively, even if one comes to terms with the complexity and the expense, the insurance company may not be set up to provide the 408b(2) disclosures; the 404a-5 information; Schedule C or Schedule A information; and may not even have the suitable SSAE-16 opinion.

-Minimum premium. These retail products can have hefty minimum premium requirements which, if applied in the qualified plan context, could cause serious Benefits, Rights and Features discrimination issues.

 -Harris trust.  And, of course, our old friend "Harris Trust." Products sold to the individual marketplace never had to deal with the issues related to protecting the general account assets of an insurer from being considered "plan assets" subject to ERISA governance. Many of these retail products do have a "fixed fund" based upon the investment in an insurer’s general account. If the terms related to that general account benefit are not designed properly, the insurer may have some challenges.

Many insurers are now designing interesting new products which, while providing the sort of guarantees that participants are looking for, are also designed to be administered as part of a qualified plan.  They tend to be simpler, less expensive, not have substantial minimums, and can be well supported by the "retirement arm" of the business.
 

Should your client really want the retail product, the solution then is to purchase it as a part of a rollover into an IRA.

  __________________

 

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.   


 

If 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 plan which is not subject to the prohibited transaction rules. If the plan paid an unreasonable amount for that purchase, it may be a fiduciary breach, but it wouldn’t be a prohibited transaction.  It is not subject to 408(b)(2).

If, on the other hand, the plan leased several computers from Office Depot for the exclusive use by the plan in its administration, and there was an ongoing maintenance contract also purchased, the arrangement becomes subject to the prohibited transaction rules. An unreasonable payment for that purchase becomes subject to the prohibited transaction rules-and Office Depot would be required to return the unreasonable compensation, and be subject to the prohibited transaction tax. It is subject to 408(b)(2).

In the first example, Office Depot is neither a "party in interest" under ERISA Section 3(14)(b), nor a "disqualified person" under the Code’s PT corollary, 4975((e)(2)(B)-which defines a party in interest/disqualified person as a "person providing services to the plan."  This means that mere sale of the typewriter by a non-party in interest to the plan isn’t going to be a prohibited transaction, even if the price is unreasonable.

In the second example, the lease and the maintenance contract are likely both to be seen as providing services to the plan, which then makes Office Depot a party in interest to the plan subject to the PT rules.  Any unreasonable compensation would need to be returned by Office Depot.

The purchase of typewriters and computers from an office supply store is not covered by the new 408(b))(2) regulations, which only covers specified transactions. But example 2 is still governed by 408(b)(2), generally.

So why do I even bother raising this? This whole area of party in interest status under ERISA was a hot topic a few years back in the Mertens and Harris Trust (not the Hancock case, but Smith Barney) Supreme Court cases, where the Court was deciding whether or not to allow ERISA lawsuits against non-fiduciary parties-in-interest. But its important now, once again, because it really does serve as a threshold issue to the new 408(b)(2) regs.

If a person is a not a party in interest, (here, if the party is not one providing services to a plan, or a subcontractor of one providing a service to a plan), 408(b)(2) will not apply, or it will not apply until you are providing a service. So lets consider a few things:

Lets say an insurance agent is selling a group annuity contract (or a QLAC, for that matter) to the plan. She sells the contract, receives a commission, and walks away from the plan. The insurance company now deals directly with the plan, and the agent is out of the picture (which may happen for a number of reasons), and is not a subcontractor of the insurance company in the provision of services. I would argue that the agent is not a party in interest, so that 408(b)(2) would not apply to the payment of trail commissions to her. Schedule A reporting, however, would still need to be done. And unless she is consider a subcontractor of the insurance company for the services it provides, the insurance company would not disclose that compensation under 408(b)(2). In reality, most sales folks stay involved in a plan when receiving commissions, and do provide services (which triggers 408(b)(2)), but not always. 

Lets say that a promoter of a private placement or a hedge fund approaches a plan to sell the plan interests in a partnership or the fund. The sale is successful, the commission is paid, and the promoter walks away-the partnership or the fund now deals directly with the plan.  I would argue that the promoter is not a party in interest. You can sell, as I have said in the past, ’til the cows come home (or at least until your "sales" becomes "service", which is, under many circumstances though, inseparable-either as a CSP or a subcontractor).

And here’s a much tougher one: suppose a marketing company related to a mutual fund complex approaches an advisory firm offering to pay $50,000 to sponsor a golf outing for the firm’s advisors. The $50,000 payment is not related to, or based upon any level of production the mutual funds receive from the advisory firms clients.  It would appear that, under these circumstances, the marketing firm is not a party in interest which would need to report, and (even it were otherwise a CSP to a plan) this may not be indirect compensation that the advisory firm or the marketing firm would need to report to a responsible plan fiduciary, either (though there would be a potential PT issue, outside of 408b2, if the firm promoted this arrangement to influence its advisors). This type of arrangement, by the way, would have had to have been reported under the original iteration of the 408(b)(2) regs.

What this discussion points out is something that has been lost in the massive 408(b)(2) discussions in the market: this is about prohibited transactions, and prohibited transactions have ALWAYS been, uneasily, very fact specific. A slight shift in the facts will often determine whether or not a prohibited transaction has occurred.

So it is around what I call the "edges" of 408(b)(2). Though the regs will apply to a significant part of very common transactions and relationships, there are a number of them where the answer is not so clear. And, as with other eccentric prohibited transaction matters, a close look at the particular facts will be determinative.

Discretion being the better part of valor,  we should take seriously DOL’s caution that the regs will be read broadly, and error should be made on the side of disclosure. But sometimes the rules will just not apply, and in circumsatnces that may be surprising.

 __________________

 

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.   


 

I have spent much of my career studying and practicing in the law of annuities as it applies to retirement plans-starting even prior to my long stint with an insurance holding company, when the Master Trust of the Fortune 100 company for which I was in-house ERISA counsel formulated its own synthetic, pooled GIC for the fixed account in its newly formed 401(k) plan back in 1986-87.

So it should have been no surprise when some very smart colleagues (whom I hold in high regard) were wondering about my enthusiasm about Treasury’s newly released guidance on annuities (though there are a few others who do share this enthusiasm). After all, the rulings and the proposed regulation really seem minor in the grand scheme of things.  They did not resolve a number of issues, and almost seemed to raise more questions than they answered.

Sometimes, it seems, one can get too close to an idea and think that-of course-everyone sees what I see!

So, I’ve attached a graphic of how DC annutization works to help explain why the Treasury guidance is so fundamental and crucial to the next steps.  I invite you to take a close look at the chart in the first 4 pages of the patent application that Dan Herr and I filed in 2007, after actually working on it for a few years (it was assigned to my former employer, who has never used it; the patent was initially denied, never has been granted, and don’t think it ever will (or can be)). It shows how your basic mutual fund 401(k) plan can serve as an annuity processing platform; how the distribution of annuities from the plan works; and why things like spousal consent and annuity starting date are so important to making it work.

The chart shows one way its possible to set up a QLAC with an automatic withdrawal program, using the plan’s mutual fund, separate account, or even pooled investments which are then backed up with a QLAC or other lifetime guarantee. The chart is complex, in that the lifetime income demonstrated can be a set lifetime amount (such as a QLAC), variable annuitization, or even a GMWB.  It also shows how to do it within the plan itself, or to be distributed out of the plan, and how to do it using either an "in-plan" or "distributed" GMWB as well as a QLAC.

I was invited to Treasury’s de-brief in DC the day the guidance was released, and it became clear to me then how this 6+ year old chart really puts the QLAC to great use (even for rank and file), and takes great advantage of the clarity provided in 2012-3.  Now can you understand my enthusiasm?

It ain’t easy (yet), and it ain’t pretty (yet). I caution that the description is in bureaucratic-speak, written by a patent lawyer in the way engineers are trained to do. But take some time on the charts, as they may help understand a few things about what may be going on with these things. 

The chart shows that Treasury actually answered key questions with its guidance. But my point is not that DC annuities are the "be all and end all" of retirement security, though they have an important place in making the system work right.  Nor is it that the insurance industry is the knight in shining armor (clearly, I know  its underbelly well) for which I am some apologist.  Its just that we now have the basic structure in place under which an important set of other operational and legal questions can be identified, asked and answered in an identifiable framework;  the argument-so to speak-has been framed. The rulings importantly  recognized that DC annuities will be treated as investments, with some strings attached to protect spousal rights; that there is a basic annuity starting date rule; that there is a forfeitability approach; and that Treasury is thinking about reporting and disclosure. Given this, we now know what even to ask.

Join us, by the way,  for a teleconference by the ABA’s Joint Committee on Employee Benefits on March 1, where we will go over some of this stuff, in English….

 

 

 

Treasury nailed it (or, as our eldest son is fond of saying, they just "friggin’" nailed it).

With just a relatively short regulation and a Revenue Ruling, Treasury simply and in a very straightforward way laid out the definitive structure for defined contribution plans (like 401(k) plans) to start providing lifetime income in a market friendly manner. The two pieces of guidance dealing with DB plans which were issued at the same time are very useful, but the meat of the matter is the critical guidance given under the proposed RMD regulation and the spousal consent Revenue Ruling, 2012-3.
 
The seminal guidance doesn’t answer all the questions, but it does creates the structure, and a context, in which other questions-both from the tax and the ERISA side-can be meaningfully addressed.  Amazingly, it is also structured in such a manner to accommodate both straight life annuities and the living benefit products as well (like the GLWB).
 
I had criticized IRS and Treasury in the past for what I had viewed as the less than thoughtful way in which they were addressing (and not addressing) critical lifetime income issues. The new releases change all of that, and–the more I look at it-in a pretty startling way. I’m not sure I have ever seen so much stuffed into so little a regulatory space.
 
I particularly like the proposed QLAC (“qualified lifetime annuity contract”): its an everyman’s rule. It is nonforfeitable (many argued that it be otherwise), and it is simply designed for meaningful use by the rank and file. Other, more exotic, annuities with living benefits and the like (which are generally geared for the high net worth participant) still can be used for lifetime income as 2012-3 Contracts, but they just won’t get the beneficial QLAC treatment under the RMD rule. There’s really no sane policy reason to incent those products, as such would actually serve as a disincentive to guaranteed lifetime income. 
 
I’d like to share with you some of my initial thoughts on just what the proposed QLAC reg and Rev Rul 2012-3 did. Discussion and further study may shift some of these, but for now:
 
 
 

Continue Reading Treasury and IRS Successfully Lay the Base For Lifetime Income: The “2012-3 Annuity” and The QLAC

The 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 to exclude all or that part of a Code section 403(b) plan (hereafter “403(b) plan”) that consists exclusively of “frozen” contracts or accounts, as described in the Department’s Field Assistance Bulletins addressing the limited application of the annual reporting requirements to such contracts or accounts.  Plan sponsors and fiduciaries likely would be unable to comply with this rule because they often have no dealings with the relevant plan service providers and are unable to obtain information about these contracts and accounts.  Accordingly, paragraph (c)(1)(ii) of the final rule now provides that, in the case of a Code section 403(b) plan subject to Title I of ERISA, the “covered plan” would not include annuity contracts and custodial accounts described in section 403(b) of the Code with respect to which the plan sponsor ceased to have any obligation to make contributions (including employee salary reduction contributions) and in fact ceased making contributions to such contracts or accounts for periods before January 1, 2009.  Further, the contract or account has to have been issued to a current or former employee before January 1, 2009; all the rights and benefits under the contract or account have to be legally enforceable against the insurer or custodian by the individual owner of the contract or account without any involvement by the employer; and such individual owner has to be fully vested in the contract or account. 
As with everything 403(b), there are going to be complications, as it is not a totally carte blanche of pre-2009 "frozen" contracts. There will be odd circumstances, like where  vendors who insist on employer approval on loans and distributions from those contracts (but the price of that insistence will be 408b2 disclosure).
 
The real value of this new DOL position will be as the "flushing" of old 403(b) contracts begins-and we have, indeed, seen it begin.  Plan sponsors will be able to manage vendors effort at these disclosures as long as they take the steps to make it clear that they are not exercising authority over these contracts. It also closes the loop on the past FABs which initially granted reporting relief only. 

The successful chair of a committee serves the committee, the committee does not serve the chair. And so it was with the creation of the just-released "best practices" 403(b) Model Disclosure, which was developed jointly by NEA, ASBO, NTSAA and ASPPA. I was fortunate enough, and honored, to serve as the chair of that group. I have chaired  and served probably more than my fair share of retirement industry related committees over the course of my nearly 30 year career, but this effort was incredibly different: the driving force was not vendor interests, government policy interests, or of those serving our profession. From early on, the focus was instead plan participants,  to get to participants in non-ERISA 403(b) plans (and, in particular, employees of school districts) information that would be useful and inmportant in their purchase of 403(b) retirement products.  Lisa Sotir-Ozkan from NEA Benefits and Melody Douglas from ASBO very much drove the process, and kept us focused on this goal. 

Cloning 408(b)(2) or 404a-5 wasn’t sufficient, nor was relying on those thick prospectuses that accompany variable 403(b) contracts. As valuable as the DOL disclosure schemes are in the employer-sponsored, institutional context, and as important as prospectuses are in protecting investor interests, they the lack simplicity -or obscure in volumes of other data- that which is particulalry important to the individual 403(b) participant. These plan particpants are not fiduciaires, and often do not have anyone to be able to collect and compare data on their behalf. They are sold investment products directly. So it really becomes a very simple issue for that school teacher or adminstrator: how much sales commissions is my investment generating; what services am I getting in return; is there a way for me to compare it all; and how can I reasonably access comparative data on the investemnts themselves?

There is the practical problem: whatever would be recommended also had to be doable by the 403(b) vendor providing the product, so disclosure was based upon information that was already being collected in some way by providers in the ERISA world. The committee also recognized the value of the comparatve format for investments under 404a-5 (and the significant investment being made in those dsclosures),  and took advantage of the benfits of that work by recommending their use here.

The Committee, with skillful drafting support and guidance from ASPPA’s Deb Davis and with Craig Hoffman’s ongoing involvement in our work,   put in serious time over the past 6 mohts to balance the useful with the doable. Along with Lisa and Melody, Aaron Friedman, Carol Gransee, Chris Guanciale,  Scott Betts  and Theresa Ward put together what I consider a pretty good piece of "engineering."  Having known engineers from from my days in Michigan, who have told me that successful engineering is really the art of successful compromise (as, they have said, you cannot have the fastest, strongest AND most fuel efficent vehicle in one; its always a balance between them all), this group can lay claim to a pretty good result.

We all recognize that this first effort was not perfiect, and pratcice will be a good teacher for us as we try to bring a new level of transaprency into play.  There is likely to be changes as we find out what we really did here. But its a pretty good start.

Freedom 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 our everyday life, without our often even even being aware of them. They form not only the basis of our own civil society, but (believe it or not) are deeply embedded in the holy texts of the major religions. 

But there is a risk nowadays in even referencing these two grand ideas in today’s political environment: instead of being viewed as the firm basis of how the vast majority of us quietly operate, they seem to have been outrageously hijacked by political extremists (such as of the libertarian/Ron Paul/ Tea Party sort-of which I am not so inclined) for some specific end.

In spite of all that, there is something well worth mentioning along these lines about the striking impact of the work we do, something we are not prone to see while working the fine minutiae of our chosen profession.

If we step back for a minute, we can see the extraordinary policy underlying 408(b)(2), the prohibited transaction rules and the exclusive benefit rules (which apply even to non-ERISA plans).  These rules seek to set aside and protect from others the individual wealth of those who accumulate benefits under these plans. It became pretty plain to me while reading Absolute Monarchs, by John Norwich (a history of the Catholic Popes, which really is a brief history of the absolute power of royalty as well as the church over individuals), where, historically, an individual’s financial well being was wholly dependent on the whims of powers that be.

We now have something very odd in man’s modern history. The value of the funds which are now protected for participants in retirement plans by the Code, ERISA or both approximates 85% of the value of publicly traded securities in the United States.  Though this seemingly huge amount is not yet adequate to establish broad retirement security, it is material enough to take note: these pooled funds are outside of the legal reach of the unaccountable "whims" of those who have something other than the best interests of the participants at heart.  Imagine that. A significant and growing portion of society’s wealth is institutionally dedicated in funded pools to the individual’s well being, which are difficult to access by an abusive use of power which has so often corrupted society-and jeopardized freedom and liberty-in the past. 

The only way this really works, however, is by things like 408(b)(2); by enforcement of the prohibited transaction rules; and by giving serious attention to the exclusive benefit rules. And all of this is dependent on what appears to be non-sensical minutiae upon which we daily work.

There is a reason I like doing what I do……

Retirement plan lawyers, both in house and outside counsel, may well want to take note of Bank of New York Mellon’s recently reported troubles related to potentially widespread  and fraudulent use of unfair currency exchange rates in their dealings with unsuspecting state and local pension plans.  If there is a basis for these charges, and f they were as widespread and as sustained as alleged to be, we may have our first prime example of how SOX Section 307 and SEC’s "Part 205" Rules (which implement Section 307) can implicate employee benefit lawyers. This is because it would be hard to believe that there wasn’t a lawyer somewhere in the organization that shouldn’t have been aware of the practice (as these rules apply not only to corporate law staffs, but to lawyers in the business lines as well).

Much of the Sarbanes Oxley Act n 2002 ("SOX") was designed to address many of the corporate abuses arising from the Enron, Tyco and Worldcom fiascoes, and it included enhanced protections for corporate whistleblowers.  Buried within this statute was Section 307, an obscure section which imposed duties upon lawyers who deal with publicly traded companies the duty to "report up" certain corporate malfeasance of which they became aware in their practice.  The challenge with these rules is they seem to clash, in many respects, with the state law rules governing the attorney client privilege. In house counsel have challenging enough circumstances, where their client is the corporation and not the officers who seek their counsel.  This awkward pressure merely increased with the passage of SOX. The stakes became higher, as well: failure to report properly would effectively result in a ban from ever representing a publicly traded client, whether in house or as outside counsel.

I wrote an analysis describing the impact of Part 205 on employee benefit lawyers for ALI-ABA in 2005. In that article, I struggled to describe sensible circumstances where benefit lawyers would be impacted, and where the reporting up obligation would be imposed. This is because the only corporate malfeasance required to be reported under SOX are those which would result in a material impact on the company’s financials, and it seemed at the time that it would be one heckuva stretch to reach the materiality standard in our line of work.

BNYMellon really is an eye opener. For manufacturing companies, there really is rare opportunity for the employee benefit lawyer to trip Part 205 obligations, other than issues related to underfunded pension plans and executive stock programs.  BNYMellon, however, demonstrates that this is a very real possibility for attorneys representing financial service companies which do retirement business. Considering the fact the value of retirement plan holdings are some 85% of the value of publicly traded securities in the U.S., and where many companies’ financial stake in the retirement business continues to grow, it occurs to me that the potential circumstances where SOX may be implicated will only become greater.

Part 205 requires the establishment of written procedures to insure compliance.   Though pure corporate, tax and M&A lawyers have always been well versed in such matters, financial service companies may want to check these procedures to make sure that retirement law staffs (including those in the business lines) are well within the loop.

For those curious on the nuts and bolts of the operations of Part 205 in the employee benefit practice (and there are quite a few), I invite you to read the ALI-ABA paper.

 

 

 

I am, by some serious training and long experience, a corporate lawyer, having been put through the paces by two incredible general counsels: Jack Hunter of Lincoln Financial Group and Scott Campbell of Kellogg Company. Each of these gentleman made quite a study of their attendant Boards and the rules (both formal and informal)  related to their rarefied status. The expectation was that lawyers  dealing with Board matters clearly understood the proper role and culture of "their" Boards.

Every year end I tend to be reminded of this seemingly mundane work (though it is really anything but!) in private practice, as this tends to be the "busy" season when it comes to corporate actions related to plan amendments and other plan activity. Though it may be too late in the year to be useful this year, there are a few thoughts that come to mind which you may hopefully find relevant the next time a plan amendment crosses your desk:

1.  Boards do not manage companies. It is fundamental corporate law that corporate officers run companies, not the Board. Board members have the fiduciary obligation to the shareholders to oversee management; but they do not step into the role of management.  This means that whatever you are looking for the Board to do, it should be generally "big picture,"  such as adopting or terminating the retirement plan. When adopting the plan, try to make sure that a corporate officer has the ability to amend the plan. In larger corporations, this authority will often be subject to certain limits, such as where the benefit is increased.  

2.  Check the minutes.  If you are unsure of who has the authority to amend the plan, check the past Board minutes (if you can find them) to see who has that authority to amend.

3. Rely upon general authority.  If it is not clear who has the authority to amend, you may find guidance in the general authority granted to officers in the bylaws or enabling resolutions as to who may have the authority to amend a plan, absent a specific grant. If you find yourself needing to go in for a Board resolution, take that opportunity to delegate future amendment authority to an officer.

4. Keep details minimal. I recently saw a board resolution that not only adopted a QACA, but also directed the officers to provide required notices. This is patently unacceptable drafting. The officers should be directed, instead,  to take all necessary actions to execute the decision of the board.

5. That fiduciary thing. Make sure that whatever you are asking the Board to do does not constitute a fiduciary action unless you intend it to. One of the worst things you can do to Board members is to inadvertently cause them to have unwanted fiduciary status. Make sure that the authority to act on behalf of the plan is properly delegated to appropriate officers: in the absence of a clear delegation, one would not generally like the DOL or courts to make a de facto finding of inadvertent ERISA fiduciary status of a Bord member.

Related to this are a number of RMD amendments I have been seeing for 403(b) plans, which purport to amend 403(b) plans for the WRERA rule that allowed RMD waivers in 2009.  Some vendors are presenting these amendments to plan sponsors for their signature by year end, as the vendor may have taken it upon itself to generally waive these requirements for those 403(b) customers with individual contracts.

First, it is not clear that such an amendment is needed because, at least for now, you can still incorporate a lot of things by reference-and the inclusion of 401(a)(9) in a 403(b) document should suffice.

Secondly, though, is the bigger problem.  These these carrier provided amendments purport to amend the entire plan. If there are other vendors in the plan  which did NOT offer the RMD waiver, you actually have a plan document problem on your hands if you adopt this broad amendment.

So, be careful; and may your New Year be fruitful, fulfilling and meaningful.