Growing up, I often listened to Paul Harvey with great fascination. His stories were most interesting in topic alone. However, I grew to understand that capturing even the smallest of details could shift the entire meaning of a story. I must confess my intrigue with details is probably deeply rooted with years of listening to Mr. Harvey, a broadcasting legend.

The significance of details has once again been confirmed. Just last week, I read an article titled “Recession No Hindrance to 403(b) Transformation” on planadviser.com.

Several colleagues and I found we were skeptical with the results because the survey indicates that plan sponsors are adjusting well to the final 403(b) regulations. These results are simply not consistent with the perception in the market.

 

Continue Reading “And the survey says”… Check your paradigm!

 ASPPA, AARP and WISER  are taking the bull by the horns and, rather courageously, are putting representatives from the mutual fund industry and the annuity industry together on panels in the "Lifetime Income Summit" to be held on May 21.

The agenda promises to be an interesting one. An insurance industry representative will chair the mutual fund panel on lifetime income, while a mutual fund representative will chair the insurance industry panel.

Both have much to learn from each other in this discussion, and I do hope they do listen. The industry responses to the DOL’s and IRS’s RFI on lifetime income show the continuing stark division between these two industries: Insurers, of course, love the thought of a retirement policy which favors lifetime guarantees from defined contribution plans;  with the mutual fund industry taking the stance that such is not needed from DC plans.

Both should take a closer look at their positions, as their economic self interests actually can align well here.  While it is true that only insurers have the legal ability to pool interests and actually provide guarantees, it is the mutual fund industry that has the products that make these guarantees attractive.

Participants love accumulating wealth in mutual funds, and even where annuity contracts are used for accumulation, the investment funds in those annuities are managed by mutual fund investment managers. But participants also love the security that only a pooling of interests can provide.

Folks from these two industries really need to scrap their historical stance on this issue, as its beginning to look a lot like a fight for the sake of a fight.  Plan and plan participants need investment products which can best be had by cooperation by these two groups-they should work together to find ways to embed guarantees in mutual funds; modify regulations to allow guarantees on DC plans that allow continued equity exposure; to find ways to allow participants a safe way to purchase insurance in DC plans to preserve a chunk of their mutual fund gains; and other assorted designs.

Forget about bickering about annuities. Find ways to allow plan participants the best of both worlds, combining the good guarantees with the good investment funds as a way to help provide their customers a chance for a secure retirement.

 

 

 

 

 

 

For , as these sorts of protections should be drawn from elsewhere than defined contribution [plans.

 

 

 

Roger Siske, dear friend, mentor and traveling companion had taught me much about the art of travel, about enjoying myself well while on the road for what seems at times like far too many hours. One of the places to which we had traveled several times together was San Francisco, home of the two labyrinths of Grace Cathedral.

The Cathedral’s Labyrinths are part of an impressive church meditative tradition.  It is a walking maze,  with many interconnecting paths,  offer blind alleys and cul-de-sacs as part of the design, often deliberately disrupting the sensibilities of the human mind.

It is with pleasure I think of visiting those mazes, not of the one’s created by the 403(b) rules regarding church plans.

It truly is an odd maze, one where differences in the manner in which a church approaches its missions reflects in a different way in which the rules will apply. This short piece will hopefully help wend through the maze.

“Church” is really used in three different ways in governing 403(b) plans, to different effect:

1.  Definition of Church Plan for ERISA purposes. This definition determines whether or not a 403(b) plan (or 401(a) plan, for that matter) will be subject to ERISA or not. it is the definition under 414(e) of the Code :

A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches.

An organization, whether a civil law corporation or otherwise, is associated with a church or a convention or association of churches if it shares common religious bonds and convictions with that church or convention or association of churches

This is a broad definition of church, effectively meaning the church itself and any other org which shares its common religious bonds.  This would include the likes of church hospitals and church affiliated universities.

2.  Definition of “Church related organization.”  The 403(b) regs uses the term 414(e) definition of church, and calls it a “church related organizations” (note the emphasized language in the 414(e) definition above) when it addresses most issues which the typical practitioner sees as a “church.”  It is used for identifying what organization can have a retirement income account; defining a minister under 403(b) (you don’t need to be a minister of a “steeple church, below, to be a minister) and church employees; qualified organization for the 15 year long service catch-up; permissive disaggregation; and the extended effective dates or specific 403(b) reg purposes.

The only special treatments attendant to this designation are those listed in the prior sentence.  The other 403(b) rules which apply to other 501(c)(3) orgs apply to “church related organizations” which are not “churches,” as defined below.

3. Definition of “Church.”   “Church,” under the 403(b) regs, is a very limited term. It only refers to “steeple churches,” (as defined under 3121(w)) and determines what kind of church organization gets extraordinary treatment under the 403(b) regulations. The plans offered by these churches are still 414(e) church plans for the rest of the regulation’s purposes, and not ERISA covered (unless they elect otherwise). The special treatment is that they do not need plan documents; nor are they required to perform discrimination testing. “Church,” for these purposes, is defined as follows:

 “Church” means a church, a convention or association of churches, or an elementary or secondary school which is controlled, operated, or principally supported by a church or by a convention or association of churches, and includes a “qualified church-controlled organization.”  This means any church-controlled tax-exempt organization described in section 501(c)(3), other than an organization which—

(i) offers goods, services, or facilities for sale, other than on an incidental basis, to the general public, other than goods, services, or facilities which are sold at a nominal charge which is substantially less than the cost of providing such goods, services, or facilities; and

(ii) normally receives more than 25 percent of its support from either (I) governmental sources, or (II) receipts from admissions, sales of merchandise, performance of services, or furnishing of facilities, in activities which are not unrelated trades or businesses, or both.

Church organizations that which fall out of the definition of “steeple church” are typically still 414(e) churches, and subject to the “church related organization” 403(b) rules, and are still 501(c)(3) orgs.
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 It has been well over a month since my last posting, as my “writing time” has been tied up with finalizing Thompson Publishing’s “403(b) and 457 Handbook,” co-authored with Conni Toth of Applied Pension Professionals, LLC; working on annuity stuff; as well as being fully engaged in this spring speaking season. This week, I am speaking at Wilmington Trust’s client seminar,on a Businessperson’s Guide to Paying, Making and Keeping ERISA Compensation- coordinating with Jan Jacobson’s fed update session. The book will be published shortly, and I look forward to re-engaging.
Look soon for more frequent posts.
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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.  

 

 

 

 

Sheri Fitts, marketing Guru of The Standard, and I put on a webcast which detailed the steps an advisor can take in assisting their clients in winding their way through the maze of ERISA issues that 403(b) plans need to deal with. This webcast includes some thoughts on moving a plan from non-ERISA status to ERISA status.  The webcast is just over 45 minutes long, and can be accessed for free by following this link. There is an accompanying, detailed checklist, which you can download by this link. 

 

 

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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.  


  

 

BNA’s  Tax Management Advisory Board published a Memorandum as an "Advisory Board Analysis" last week, "Income Guarantees in Defined Contribution Plans."   Click on the title to download a copy. It speaks in some detail of the technical issues confronting the provisions of annuities through a defined contribution plan.

I authored this paper, and have also committed to Al Lurie and NYU to do an even more detailed paper in the NYU "Review of Employee Benefits and Executive Compensation: 2010" to be published this summer. This paper will be a bit more extensive, further detailing the ERISA Title 1 issues related to these contracts, as well as a number of other points made in the BNA paper.

I look forward to your comments.

 

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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.  


  

 

 

Well, technically, we didn’t write this idea on the beer napkin, but the thought occurred to us to do so as David John and I were sitting in a restaurant at Union Station quaffing one or two. The beer napkin was too wet to write on, but here’s the idea as best I remember it. Lets call it the Beer Napkin Annuity.

As many folks work to answer the IRS’/DOL’s RFI, one thing is clearly coming out: there is a LOT of resistance to mandatory annuitzation of 401(k) account balances. I can’t say that I really disagree with that resistance.  Heck, I saved that money, didn’t I? But what should we do to address the fact that account balances run out?  We continue to hear of "Pension Envy" against those fortunate few who are eligible for those steady, comforting monthly DB benefits. 

Traditionally,  the tax system was designed so that an employee can have the full, intended retirement plan benefit by an employer maintaining BOTH a DB and a DC plan.  The benefit from each plan is limited (generally a $195,000 per year payment from the DB for 2010, and a $49,000 plus a 5k "old guy catch-up" for DC plans. In reality the limits get a whole lot more complicated in application, particularly when combined with other plans).  These two limits were one time coordinated, so you couldn’t get the max out of each plan. But this coordination  was repealed in 1996. This means that employees can max out in both plans (up to the employer’s deduction limit) if the employer chose to offer them. And many did. Now, for a variety of reasons (many upon which I have blogged), employers have been dumping the DB;  trying to goose the DC plans;  or trying to turn their DB plans in DC plans via the inartful effort of the Cash Balance Plan.  

 So, we have been talking much lately about annuitizing that account balance in the DC plan to make up for the loss of this lifetime guarantee.  But one of the biggest problems with DC annuitization as a replacement for DBs is that we are still stuck with a single, DC 415 limit-the DB limit is left unused.
 
The funny thing about DB plans is that the benefits from these plans are expected and intended to come out as monthly payments, not as a lump sum (though DB plans have been dramatically amended in the last few years to provide lump sum benefits).  And no one complains about this sort of "mandatory" annuitization.
 
So it it occurred to me: why not  permit the use of the existing DB limit (or  its actuarial equivalent) to be used in a DC  plan, to the extent that a lifetime guarantee program is purchased with that additional limit. It can be used by the employer to make contributions to either the DB or DC side, or both, as long as a lifetime guarantee is purchased. I can see a portion of an employer match going into the DB like program (perhaps as a "safe harbor" contribution which relieves the discrimination testing on the DC side); maintaining the  employees’ right to access and invest their own elective deferrals; while allowing participants  to take any portion of their DC account balance and purchase additional lifetime guarantees under that "DB limit" program.
 
The DB portion would be fashioned as a DC contribution, and the benefit coming out being treated as a payment from the investment under the plan. This prevents turning the DC plan into a DB plan. You see, as much as I love DB plans, they have  has this nasty side-effect of turning a widget maker into an insurance company. This program avoids that, and would require that this" DB-like" guarantee be fully funded upon purchase by use of an "investment" annuity product in the marketplace.  Alternatively, I guess, it could be fashioned as an insured pension plan under the existing 412(i) rules-which contemplates level premiums paid to an individual contract for level payments guaranteed over a lifetime.
 
It’d take a little bit to figure out the rules, but heck. It uses a tax benefit currently on the books in a way for which it was intended, and could be implemented relatively simply in the current regulatory scheme. It uses a concept folks have accepted and are used to: a DB benefit is paid in a monthly payment, but I (that is the participant) still get to invest my own money (ie, 401k elective deferrals) as I want.
 
The Beer Napkin Annuity……

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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.  


  

The independent auditor is really at the heart of the growing storm in the 403(b) world. For all the problems and challenges caused by the tax regulations, they really pale when compared to what has to happen on the ERISA Title 1 side of things as employers and the market attempt to transform to an accountability to which they have never been held in the past.

To those of us who are the "non-initiates" when it comes to accounting and auditing standards, we have suspected for the past year that there may be massive problems when it comes to compiling the 403(b) audited financial statement. The problem: you need prior year data to do the current year financials.

The AICPA released a FAQ on 403(b) plan audits.  Here’s what they said on the "prior data" issue. Though it is lengthy, these are words that every professional dealing with 403(b) plans needs to be familiar with. It fully explains the conundrum faced by the auditor-and the costs that will need to be incurred by plans:

5.   Generally, what initial audit procedures would the auditor perform on the beginning of year (e.g. – January 1, 2009) contract and accounts?

Audit procedures include testing the accuracy and completeness of the beginning balances of reported contracts and accounts. The nature, timing, and extent of auditing procedures applied by the auditor are a matter of judgment and will vary with such factors as the length of time the plan has been in existence, adequacy of past records, the significance of beginning balances and the complexity of the plan’s operations (such as the number and consistency of vendors). In accordance with Chapter 5 of the AICPA Audit and Accounting Guide, Employee Benefit Plans, areas of special consideration are the completeness of participant data and records of the prior years, especially as they relate to participant eligibility, the amounts and types of benefits, the eligibility for benefits, and account balances.

The auditor should also make inquires of the plan administrator and outside service providers, as applicable, regarding the plan’s operations during those earlier years. The auditor also may wish to obtain relevant information (for example, trust statements, recordkeeping reports, reconciliations, minutes of meetings, and reports prepared in accordance with Statement on Auditing Standards (SAS) No. 70, Service Organizations [AICPA, Professional Standards, vol. 1, (AU sec. 324)] for earlier years, as applicable, to determine whether there appear to be any errors during those years that could have a material effect on current year balances. Further, the auditor should gain an understanding of the accounting practices that were followed in prior years to determine that they have been consistently applied in the current year. Based on the results of the auditor’s inquiries, review of relevant information, and evidence gathered during the current year audit, the auditor would determine the necessity of performing additional substantive procedures (including detailed testing or substantive analytics) on earlier years’ balances. (See AICPA TIS 6933.01 Initial Audit of a Plan (AICPA Technical Practice Aids, vol.1) for additional discussion of initial audits.)

The inability of the auditor to obtain sufficient appropriate audit evidence supporting the accuracy and completeness of beginning balances of reported contracts and accounts is considered a restriction on the scope of the audit and may require the auditor to modify his or her opinion.

6. What procedures does the auditor need to apply to the comparative statements of net assets available for benefits?

ERISA requires that audited plan financial statements present comparative statements of net assets available for benefits (for example, December 31, 2009 plan year would present a comparative December 31, 2008 statement of net assets available for benefits.) The prior year comparative statements of net assets available for benefits may be compiled, reviewed, or audited. Practically speaking, however, although a compilation or review of the prior year is acceptable, the auditor would need to apply sufficient auditing procedures on the beginning balance of net assets available for benefits in the current year to obtain reasonable assurance that there are no material misstatements that may affect the current year’s statement of changes in net assets available for benefits. (See AICPA TIS 6933.01 Initial Audit of a Plan (AICPA Technical Practice Aids, vol.1)

7. What if historical records do not exist or are not available for reported contracts and accounts?

The DOL has indicated that they expect the plan administrator to use “good faith efforts” to locate and provide all of the necessary records in accordance with its fiduciary responsibilities under ERISA. If historical records (such as payroll records and participant data) do not exist or are not available for the reported contracts and accounts, and the amounts of reported contracts and accounts are material, the auditor may need to modify the report because of a restriction on the scope of the audit.

This would actually be funny if it weren’t such scary stuff. We know that this past data (in a useful form) will be virtually impossible to collect and compile in GAAS acceptable formats, even in the case of a single vendor plan. But the plan will need to still hire the CPA to establish the good faith effort at collecting the data necessary, and then wrestle with the financial services company to try to get something which may not even exist-or at least not at prices that won’t bankrupt the charity. The good news is that if good data that can’t be found, it can then be excluded from the financial statement and the audit.

But that just begs the question: if you exclude an opening balance, can you really even have a financial statement? Ever? THEN what? Without relief from the CPA’s standards setting body, we will have our own, permanently recurring, expensive conundrum. 

 

 

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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.  


  

The DOL issued its highly anticipated 403(b) Frequently Asked Questions as part of a Field Assistance Bulletin, FAB 2010-01.  The seriousness in which the DOL is taking these 403(b) issues is reflected in the fact that it was issued as a FAB, and not merely the sort of informal guidance offered by a simple FAQ.  As one DOL staffer mentioned to me, though a FAB nay not have a whole lot more legal weight than an FAQ, it does speak to the weight the DOL is giving to the matters at hand.

There are now three DOL 403(b) FABs: 2007-2; 2009-2 and 2010-1.  The three of these should be read together when seeking answers, as they constitute substantial regulatory guidance.

This new FAQ was really designed to give plans and accountants some reporting and disclosure guidance as they attempt to put together their first, full fledged 403(b) Form 5500s, though it does also touch upon important ERISA coverage issues. It does not directly speak to some of the more pressing substantive 403(b) Title 1 issues (such as , what the heck is a 403(b) plan asset?), but it does say some interesting things. Hidden in the mundane, though, are quirks, gems and quirky gems-with a touch of the controversial. Lets sample a few:

GEMS

  • Q12.  Yes, I am listing this one out of order because this is a High Quality Gem (according to Mr.Giller, there is no specific rating system for gems outside of diamonds, or I would use it here). The DOL extended its discussion of "good faith efforts" in applying the FAB 2009-2 exemptions. It specifically here recognizes that some "non 2009-2 exempted" contracts may not be able to be found. As long as the plan can demonstrate and document a good faith effort to find those contracts, and as long as "the guiding principle must be to ensure that appropriate efforts are made to act reasonably, prudently, and in the interest of the plan’s participants and beneficiaries"  (this is language from 2009-2),  the exclusion of these "non-findable/non-exemptable" contracts will not cause the 5500 to be rejected. Now, to convince your auditor to do cooperate will be something else-its that GAAP thing.
  • Q3.  Knowing where the contract is, and who issued it, does not disqualify it from being excludable under 2009-2.
  • Q11.  The DOL verified that 2009-2 extends beyond the 2009 reporting year.
  • Q13. Cool. The DOL recognized the problem with the last payroll we have always had in 403(b) plans (and, to some extent 401(k) plans), particularly in with regard to testing 402(g) limits and, in the past, running MEAs:   making a deposit in 2009 from the last payroll in 2008 will not take the contract out of 2009-2.

 QUIRKS

  • Q2. In a question designed to answer the question of whether loan repayments forwarded to a vendor by an employer on a contract that otherwise qualifies under 2009-2 for reporting relief takes the contract out of 2009-2 (the answer is yes), an interesting question is raised. Many 403(b) loans are "self-billed", that is, they are paid directly by the plan participant to the vendor.  In a contract that is NOT exempted by 2009-2, do these payments need to be reported on the 5500? If so, what line would you use on Schedules H or I?
  • Q6.  Okay guys, quit teasing us. You used that term again, "plan asset," but just in the context of what a "plan asset" isn’t for the 2009-2 reporting purposes. We really need to know how the plan asset rules  apply in the individual contract context  for other minor  purposes, like fiduciary obligations. Please?
  • Q14. There are two alternative conditions to allowing the applicability of 2009-2,where the employer decides to allow or not allow an optional plan feature (like loans):  a cost basis, that is, including or excluding would serve to increase plan costs; or where including the option could require the use of employer discretion in its execution. 
  • Q15.  The DOL reiterated and affirmed its public stance that an employer hiring a TPA to make discretionary decisions is the same thing as exercising discretion, and cause the plan to fall out of the ERISA 403(b) safe harbor. The employer may, however, allow the purchase of a product where the product vendor exercises discretion without violating the safe harbor. This has the odd effect of allowing the vendor to subcontract out discretion to the same TPA that an employer could not.  In spite of its quirkiness, I believe (and there those who I respect which disagree) the reasoning for this is soundly based.

QUIRKY GEMS

  • Q7. The DOL giveth, and the DOL taketh away.  It affirms that the right to determine whether any contract is exempted under 2009-2 is reserved to the Plan Administrator. BUT, it also introduces a new "ratting clause" (which is the term I also use to describe the obligation on Schedules A and C to report non-cooperative vendors): If the plan auditor doesn’t agree with the employer, the auditor must note it in the audit report. I have had far too many disagreements with poorly trained, junior auditors on the 401(a) side to even remotely take a shining to this condition. 
  • Q12.  Yes, I listed this as a High Quality Gem. But what makes this one also quirky is the odd reference to personal liability for those who were required to keep records but failed to do so.  In a world where employers and plans mostly kept no such records, and where this recordkeeping obligation was never really formally assigned, and much of it never really required because of the minimal 5500 requirement, it is truly a quirky reference.
  • Q16.  My guess some readers were wondering where I would put this one.  It is truly interesting, and a Quirky Gem.  This is the question of whether the ERISA safe harbor requires a certain number of vendors, or whether a single vendor with a reasonable choice of investment options (whether it be in an annuity contract or in an open architecture program) will suffice. The DOL refrained from affirming some public statements on how many vendors are required to avoid losing the safe harbor;   it did reaffirm that the safe harbor refers to both "contractors" as well "investment products" separately; and it focused heavily on facts and circumstances.  It allows employers (or, more precisely, imposes the burden on the employer) to establish that the costs and administrative burdens on that employer justify a use of a single open architecture program or annuity contract.

In any event, attempting to claim protection of the safe harbor will require hard work and diligence and, ultimately, the cooperation of the vendor. 

 

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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.  


 

 

In a lunch conversation with Kathy Elliott , (a CPA specializing in 403(b) audits) at the annual meeting of the TE/GE Councils in Baltimore (which, by the way was pulled off fantastically by Warren Widmayer (and a few others), in the face of a snowstorm of historic dimensions), we went into more detail on my blog on 403(b) plan disqualification.

In talking about what now seems to be the obvious, Kathy pointed out the absurdity of "disqualifying" an entire 403(b) plan: the employer suffers little direct tax sanction, and the burden of the employer’s errors are borne by the employees. There is no "stick" to the "carrot and stick" combination that makes 401k plans work, according to Kathy.

Think about it. In a 401(a) disqualification, the employer will lose its tax deduction and suffer potentially significant tax penalties when disqualifying the plan.  There is no such penalty for the 501(c)(3) employer (except where there is UBTI) or school district.  So, should the plan fail eligible employer status, be discriminatory or have a failed plan document, what really is the impact on the employer? Well, it seems, it is only the feeble link upon which audits were based prior to the regulations: W-2 reporting failure, with its  current max penalty of $30 per W-2.  The real "sanction" is the threat to report as taxable all amounts contributed to employee accounts. Again, as is so often the case with the impact of these regulations (see, for example an earlier blog), it is the employees of these tax exempt organizations which are to suffer the brunt-and, this time, for things outside of their control.

The IRS will soon publish a new set of EPCRS rules, which are generally intended to update the program for the new 403(b) regs.It will be interesting to see whether these new rules will recognize this factor in the determination of the appropriate Audit CAP sanction, where the largest tax liability to the employer is really only W-2 based. Under the prior audits, any sanctions paid by the employer were really only part of a settlement agreement with the IRS, where it agreed not assess tax penalties against employees in return for the payment of a sanction. To its credit by the way, the IRS was not aggressive in imposing these penalties upon audit, and were extraordinarily reasonable where there was good faith attempts at compliance by the employer.

Please do not read this as any criticism of the IRS TEGE staffs, as they have the duties of interpreting and imposing an awful set of regs. Application of these regs are settling in nicely due to the thoughtful efforts of the dedicated staffs. There are really only a handful of difficult issues (from the tax side) which are yet open, and these are mostly  being worked on. But application of these regs are repeatedly demonstrating some really unusual effects-all related to the point that he basis of the 403(b) plan is the idea of an individual pension.

 

 

 Co-authored by Richard Turner

One of my personal highlights of the just finished NTSAA Annual meeting in Palm Springs (the first under the joint auspices of ASPPA and NTSAA, which has all the looks of a marvelous arrangement for the 403(b) market), was a conversation with Richard Turner, my old friend and VALIC’s top 403(b) lawyer.

Richard and I have been engaged in an odd sort of range war over the past two years on the level of liability a public school district has in relation to the manner in which it handles its 403(b) program. Early on (in late 2007, methinks), I gave a few speeches discussing the potential "fiduciary like" exposures school districts may have from mismanagement of their 403(b) programs. Richard responded with a lengthy paper differentiating 403(b) compliance duties from an employer’s decisions about how involved they choose to become in selecting individual investments. I responded in kind with a part of a paper for the National Association of School Boards (with Jack Lance, Fred Reish, Bruce Ashton, Dave Kolhoff and others) on the whole host of liabilities I see a school district bumping into. Of course, Richard replied with a few more things.  

Richard and I finally caught up with each other in Palm Springs. Richard grabbed my arm, saying "Bob, we have to talk. You’re not serious about this broad school district fiduciary liability thing, are you?" My response was, of course, "and you’re not seriously saying that school districts can never be held liable if they seriously mismanage their 403(b) programs, are you?"

Richard and I have been arguing about various tax and retirement questions for nigh on 20 years, so-as he put it-a singularity has occurred that may jeopardize the continued existence of the universe as we know it: we came to a general consensus on this issue. Here’s where we ended up; we were never very far from each other’s point:

Throughout this process, two primary areas of contention have been: (a) In those states that provide broad statutory protections for public school 403(b) plan sponsors, is there some type, or level, of employer activity that might weaken or forfeit those protections?  And, (b) To what extent, if at all, might certain uniform acts (such as prudent investor acts) that primarily govern the investment of state and local pension funds and certain trusts and estates, also apply to public school districts overseeing their 403(b) plans?

We’ve agreed that school districts which limit their plan involvement to coordinating plan compliance, either with central compliance oversight or by making sure vendors are talking to each either, and adopting a plan document, will  likely have little liability to participants for the investment selections the participants are permitted to make under the program. In these sorts of instances, many states have laws which protect districts from this "hands off" approach.

We’ve also agreed to the other end of the spectrum: where a school district (lets say in an effort to control compliance costs and to get a better priced product for its employees ) selects and negotiates a single investment platform (either open or closed architecture) and oversees the selection of investment options on that platform, it could be forfeiting some of those state law protections by voluntarily taking on the additional investment selection responsibilities (outside of the scope of 403(b) compliance duties), and in doing so could be exposing itself to "fiduciary-like" (or even, in some cases, state fiduciary law ) liability.   (It should be noted that in some states a public school is not permitted to take such actions.)  As another example, such liability concerns might arise if a district hd authrotiy, under the plan and the underlying investment products, to map existing dollars to new investments and elected to do so.

Where there needs to be much more discussion is where the  liability line is crossed in the "continuum" between these two points, though the answer could be different under the different laws in each state.

But where would we be if Richard and I agreed on everything?

 

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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.