Defined contribution plan

New Fees in 2021 for Certain Determination and Letter Ruling Requests

In Announcement 2020-14, the IRS provides advance notice of fee increases for certain determination applications, effective January 4, 2021.

  • Form 5300, Application for Determination for Employee Benefit Plan, will increase by $200 to $2,700
  • Form 5307, Application for Determination for Adopters of Modified Volume Submitter Plans, will increase by $200 to $1,000
  • Form 5310, Application for Determination Upon Termination, will increase by $500 to $3,500

Letter ruling requests for five-year automatic extension of the amortization period will increase significantly from $1,000 to $6,500. The new fees will be reflected in Revenue Procedure 2021-4, which will be published on January 4, 2021.


SEC Proposes Rule to Modernize Shareholder Reports and Disclosure

The U.S. Securities and Exchange Commission (SEC) has announced a proposal to modify and modernize the disclosure framework of mutual funds and exchange-traded funds that is intended to better serve the needs of retail investors. The SEC has identified in its press release several highlights of the proposal.


Shareholder Reports Tailored to Retail Shareholders

The proposal encourages the use of graphic or text features to promote effective communication. It would also provide flexibility for open-end funds to make electronic versions more user-friendly and interactive.


Availability of Additional Information

Information that is currently included in an open-end fund’s annual and semi-annual reports may be less relevant to retail shareholders but of more interest to financial professionals. This information would be filed on a semi-annual basis with the SEC on Form N-CSR, and would also be available online or delivered free of charge upon request.


Required Disclosures Tailored to New and Ongoing Fund Investors

Under the new proposal, annual prospectus updates would no longer be delivered to shareholders once the first prospectus is provided upon initial investment. Rather, shareholders would receive information from the fund through the shareholder report and timely notifications of material changes. The fund’s prospectus would remain available online and could be delivered upon request.


Improvements to Prospectus Disclosure of Fees and Risks

The proposal would tailor disclosures using a layered approach that would replace existing fee tables in the summary section of the prospectus with a simplified fee summary and replace certain terms in the fee table with terms that may be clearer to investors. The proposal would also improve risk disclosures in open-end funds by promoting the disclosure of principal risks and disclosing how these risks are assessed.


Fee and Expense Information in Advertisements

Advertisements and sales literature would be required to contain presentations of investment company fees and expenses that are consistent with relevant prospectus fee tables and are reasonably current and free of misleading representations.

Much of the framework for the SEC’s proposal is in response to a 2018 request for comments regarding retail investors’ experience with fund disclosures. There is a 60-day comment period upon publication in the Federal Register.

More IRS Guidance on Funding Single Employer DB Plans, Distribution Notices

The IRS released two Notices providing additional guidance relative to certain provisions under the Coronavirus Aid, Relief, and Economic Security (CARES) and Setting Every Community Up for Retirement Enhancement (SECURE) Acts.

Notice 2020-61 provides guidance on rules related to funding of single employer defined benefit pensions plans and related benefit limitations. The CARES Act extended the deadline for minimum required contributions otherwise due during calendar year 2020 to January 1, 2021. Notice 2020-61 provides details and a lengthy Q&A.

Notice 2020-62 modifies safe harbor explanations (previously issued in Notice 2018-74) that may be used to satisfy distribution notice requirements under Internal Revenue Code Section 402(f). These changes are necessary relative to recent distribution provisions established under the SECURE Act pertaining to qualified birth or adoption distributions and age 72 required beginning date for required minimum distributions

Senate Releases Details of Next Round of Pandemic Relief

The U.S. Senate yesterday released details of additional relief it is proposing in response to the coronavirus (COVID-19) pandemic. It builds upon the March 2020 enactment of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. This legislative package is formally being described as the Health, Economic Assistance, Liability, and Schools (HEALS) Act. It contains provisions for a second round of direct payments to Americans, a modified version of the CARES Act unemployment compensation subsidy, liability protection for businesses and schools that re-open, and numerous other provisions.

The House of Representatives previously passed its version of more COVID-19 relief, H.R. 6800, the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act. Senate and House approaches and magnitude differ markedly. If the current Senate package is approved it will require significant compromise between the House and Senate for another round of COVID-19 relief to become law.

Among the HEALS Act provisions of note in this multi-bill Senate package are the following.


Money Purchase Pension Plan Relief

The CARES Act granted penalty-free early withdrawals from retirement savings arrangements, permitted taxpayers to pay the associated tax over three years, allows taxpayers to recontribute withdrawn funds, and increased to $100,000 the maximum limit on retirement plan loans. The CARES Act excluded money purchase pension plans from this relief. This Senate package retroactively adds these provisions for such plans.


Employee Certification of Enhanced Plan Loan Eligibility

The CARES Act allows employer retirement plans to rely on an employee self-certification that he or she qualifies for a coronavirus-related distribution (CRD) from a retirement plan, which provides a distribution trigger to an individual who would otherwise not be eligible for a distribution. The CARES Act did not directly address employee self-certification of eligibility for an enhanced retirement plan loan. The HEALS Act would codify this clarification, which was previously made in regulatory guidance under IRS Notice 2020-50.


Payments of Single-Employer DB Pension Plans

The HEALS Act would clarify the due date—delayed for 2020 by the CARES Act—by which certain minimum required contributions to single-employer defined benefit (DB) plans must be made.


Paycheck Protection Program

The HEALS Act would make modifications and provide for a second round of loans under the Small Business Administration’s Paycheck Protection Program (PPP), a CARES Act creation designed to help small businesses retain employees during the pandemic with low-interest, potentially forgivable loans. Loan proceeds may be used for such payroll-related expenses as retirement and health benefit costs.

The HEALS Act would allow businesses with 300 or fewer employees to receive a second PPP loan if their first or second quarter 2020 revenue declined by 50 percent or more compared to the same time period in 2019. The HEALS Act would also permit certain nonprofits—including chambers of commerce and trade associations—to receive PPP loans.


FSA Carryover

The HEALS Act would allow up to $2,750 in unused health and dependent care flexible spending arrangement (FSA) benefits in 2020 because of the pandemic to be rolled over and used in 2021. Unused health FSA balances above $500 generally cannot be carried over and are forfeited; dependent care FSA balances of any amount have heretofore not been eligible for carryover. Both could be carried over from 2020 to 2021 under HEALS Act provisions.

The timeline for negotiation and enactment of further COVID-19 pandemic relief is short, as both the House and Senate are expected—barring a deviation from their schedules—to leave for a month-long district work period in early August.

Deadline Relief for Storm and Earthquake Victims Includes Making IRA Contributions

The IRS has issued two news releases that grant extensions of time for completion of certain time-sensitive tax-related acts, to victims of severe storms in Michigan, and an earthquake and after-shocks in Utah.

The extensions in both cases include the completion of numerous time-sensitive tax-related acts described in Treasury Regulation 301.7508A-1(c)(1) and IRS Revenue Procedure 2018-58. Among them are completion of rollovers, correction of certain excess contributions, making plan loan payments, filing Form 5500, and certain other acts under this regulation.

In both cases—though the timeframes differ—the news releases confirm that the extensions apply to the filing of individual and business tax returns, and to making 2019 IRA contributions (deadlines for which were previously extended to July 15, 2020).


Michigan Relief

Relief for the state of Michigan applies to the counties of Arenac, Gladwin, Iosco, Midland, and Saginaw. Deadlines for covered actions that fall on or after May 16, 2020, and before October 15, 2020, are extended to October 15, 2020.


Utah Relief

Relief for the state of Utah applies to the counties of Davis and Salt Lake. Deadlines for covered actions that fall on or after March 18, 2020, and before July 31, 2020, are extended to July 31, 2020.

House Bill Would Extend, Expand Tax Benefits for CRDs

Rep. Sean Maloney (D-NY) has introduced H.R. 7645, legislation that would extend the time period for taxpayers to withdraw coronavirus-related distributions (CRDs) from retirement savings arrangements and receive the special tax benefits that CRDs provide. Certain withdrawals could be tax-free under the legislation.

CRDs, as defined in the Coronavirus Aid, Relief and Economic Security (CARES) Act, are eligible for the following tax benefits for withdrawn amounts up to $100,000 (currently, only for withdrawals in 2020).

  • Three-year taxation on amounts withdrawn
  • Exemption from the 10 percent excise tax for early (pre-59½) distributions
  • The option to repay such withdrawn amounts within three years

Included in the bill is expected to be a provision that would make CRDs tax-free if the taxpayer qualifies as a first-time home buyer. “Expected,” because neither bill text nor a summary is available at this time. Details of legislative intent are being inferred from the bill’s description at the official congressional web site:

To extend the time period for making coronavirus-related distributions from retirement plans and to provide an exclusion from gross income of coronavirus-related distributions which are first-time homebuyer distributions.”

H.R. 7645 has been referred to the House Ways and Means Committee.

Washington Pulse: The DOL’s New Proposal to Regulate Investment Advice

Few aspects of retirement plan governance have been as controversial as regulating investment advice. Exactly what obligation—if any—does an investment professional have to provide impartial, conflict-free advice to savers and retirees?  When do financial professionals step over the boundary that can make them a fiduciary, with the ethical and legal obligations that come with this duty?

The answers have been inconsistent, stretching over many years. Department of Labor (DOL) fiduciary investment advice regulations date back to the 1970s. Those regulations needed revision in order to better align with today’s investment products and participant-directed retirement plans. Changes were proposed in 2010, withdrawn in response to public comments, revised again in 2015, and made final in 2016.

The DOL delayed implementing the 2016 final investment fiduciary regulations and accompanying guidance. These regulations were ultimately struck down in 2018 as “regulatory overreach” by the United States Court of Appeals for the Fifth Circuit.

The DOL later issued Field Assistance Bulletin (FAB) 2018-02, which states that the DOL will not pursue prohibited transaction claims against fiduciaries who make good-faith efforts to comply with the Impartial Conduct Standards (discussed later). FAB 2018-02 remains in effect.

The DOL has again issued investment advice guidance, this time to replace the guidance struck down by the appellate court. This latest guidance package includes a proposed prohibited transaction class exemption entitled Improving Investment Advice for Workers and Retirees, and a technical amendment to DOL Regulations (Regs.) 2509 and 2510 that implements the appellate court’s order by

  • reinstating the original version of DOL. Reg. 2510.3-21 (including the five-part test);
  • removing prohibited transaction exemptions (PTEs) 2016-01 (the Best Interest Contract Exemption) and 2016-02 (the Class Exemption for Principal Transactions);
  • returning PTEs 75-1, 77-4, 80-83, 83-1, 84-24, and 86-128 to their original form; and
  • reinstating Interpretive Bulletin (IB) 96-1, which is intended to help investment providers, financial institutions, and retirement investors determine the difference between investment education and investment advice. Investment providers and financial institutions may rely on the safe harbors in IB-96-1 in order to avoid providing information that could be construed as investment advice.

The technical amendment became effective on July 7, 2020.


What is the five-part test?

The original version of DOL Reg. 2510.3-21 (which the technical amendment reinstates) contains a five-part test that is used to determine fiduciary status for investment advice purposes. Under the test, an investment provider or a financial institution that receives a fee or other compensation is considered a fiduciary if it meets all of the following standards (i.e., prongs) of the test.

  • The provider or institution gives advice on investing in, purchasing, or selling securities, or other property.
  • The provider or institution gives investment advice to the retirement investor on a regular basis.
  • Investment advice is given pursuant to a mutual agreement or understanding with a retirement plan or its fiduciaries.
  • The retirement investor uses the advice as a primary basis for investment decisions.
  • The provider or institution provides individualized advice, taking into account the plan’s demographics, needs, goals, etc.


Has the DOL’s opinion changed on rollover recommendations?

In the preamble of the proposed PTE, the DOL clarified that it no longer agrees with the guidance originally provided in Advisory Opinion 2005-23A (better known as the Deseret Letter). In the Deseret Letter, the DOL indicated that a recommendation to distribute and roll over retirement plan assets would not generally constitute investment advice because it would not meet the first prong of the five-part test. But because it is common for the investments, fees, and services to change when the decision to roll over assets is made, the DOL now believes that a recommendation to distribute assets from an IRA or an ERISA-covered plan would be considered investment advice with respect to the first prong of the five-part test.

The DOL acknowledges that advice encouraging an individual to roll over retirement plan assets may be an isolated and independent transaction that would fail to meet the second “regular basis” prong. But determining whether advice to roll over assets meets the “regular basis” prong depends on the facts and circumstances.  So the DOL could view a rollover recommendation that begins an ongoing advisory relationship as meeting the “regular basis” prong.

As discussed above, the proposed PTE would allow investment professionals to receive compensation for advising a retirement investor to take a distribution from a retirement plan or to roll over the assets to an IRA. The investment professional could also receive compensation for providing advice on other similar transactions, such as conducting rollovers between different retirement plans, between different IRAs, or between different types of accounts (e.g., from a commission-based account to a fee-based account).

Under the proposed PTE, financial institutions would need to document why the rollover advice was in the retirement investor’s best interest. Documentation would need to

  • explain whether there were other alternatives available (e.g., to leave the assets in the plan or IRA and select different investment options);
  • describe any applicable fees and expenses;
  • indicate whether the employer paid for some or all of the plan’s administrative expenses; and
  • show the different levels of services and investments available.

In addition, investment providers or financial institutions that recommend rolling over assets from another IRA or changing account types should consider and document the services that would be provided under the new arrangement.


Who is covered under the proposed PTE?

The proposed PTE would apply to registered investment advisers, broker-dealers, banks, and insurance companies (financial institutions), and their employees, agents, and representatives (investment professionals) that provide fiduciary investment advice to retirement investors. The proposed PTE would also apply to any affiliates or related entitites.

“Retirement investors” include

  • IRA and plan fiduciaries (regardless of plan size),
  • IRA owners or beneficiaries, and
  • plan participants or beneficiaries with authority to direct their accounts or take distributions.

The proposed PTE defines a “plan” as including 401(a) plans (e.g., 401(k) plans), 403(a) plans, 403(b) plans, defined benefit plans, owner-only plans, simplified employee pension (SEP) plans, and savings incentive match plan for employees of small employers (SIMPLE) plans. The proposed PTE would also apply to employee welfare benefit plans that have established a trust (e.g., VEBAs).

The proposed PTE, defines an “IRA” as an individual retirement account, an individual retirement annuity, a health savings account (HSA), an Archer medical savings account (MSA), and a Coverdell education savings account (ESA).


What protection does the proposed PTE offer?

The Internal Revenue Code and ERISA generally prohibit fiduciaries from receiving compensation from third parties and compensation that varies based on investment advice provided to retirement plans and IRAs. Fiduciaries are also prohibited from selling or purchasing their own products to retirement plans and IRAs (known as principal transactions).

Under the proposed PTE, financial institutions and investment professionals providing fiduciary investment advice could receive payments (e.g., commissions, 12b-1 fees, and revenue sharing payments) that would otherwise violate the prohibited transaction rules mentioned above. For example, the exemption would provide relief from prohibited transactions that could occur if a financial institution or investment professional

  • advises a client to take a distribution or roll over assets to an IRA or retirement plan;
  • provides recommendations to acquire, hold, dispose of, or exchange securities or other investments; or
  • recommends using a particular investment manager or investment advice provider.

In addition, the proposed PTE would cover riskless principal transactions  (e.g., when a broker-dealer purchases a security for their own account knowing that it will be sold to a retirement investor at a certain price) as well as principal transactions involving certain specific types of investments (e.g., municipal bonds).

The following transactions would not be covered by the PTE.

  • Transactions where advice is provided solely through a computer model without any personal interaction (i.e., robo-advice arrangements).
  • Transactions in which the investment professional is acting in a fiduciary capacity other than as an investment advice fiduciary under the five-part test, as described below (e.g., a 3(38) investment manager with authority to make discretionary investment decisions).
  • Transactions involving investment providers, financial institutions, and their affiliates if they are the employer of employees covered by the plan; or are a named fiduciary, plan administrator, or affiliate who was chosen to provide advice by a fiduciary who is not independent of the investment professional, financial institution, or their affiliates.

Certain individuals and institutions (and all members within the institution’s controlled group) would be ineligible to rely on the exemption—including those who have been convicted of a crime associated with providing investment advice to a retirement investor, or those who have a history of failing to comply with the exemption. The period of ineligibility would generally be 10 years, but a financial institution with a conviction may petition the DOL for continued reliance on the exemption.


What does the proposed PTE require?

To take advantage of the relief provided under the proposed PTE, investment professionals and financial institutions must provide advice in accordance with the Impartial Conduct Standards. The Impartial Conduct Standards contain three components—a reasonable compensation standard, a best interest standard, and a requirement that prohibits investment providers or financial institutions from giving misleading statements about investment transactions or other related matters.  The Impartial Conduct Standards also requires financial professionals and financial institutions to provide the best execution possible when completing security transactions (e.g., completing the transaction timely).

Under the best interest standard, investment professionals and financial institutions are not required to identify the best investment for the retirement investor, but any investment advice given must put the retirement investor’s interests ahead of the interests of the investment professional, financial institution, or their affiliates. This is consistent with the SEC’s Regulation Best Interest.

Investment providers and financial institutions cannot waive or disclaim compliance with any of the proposed PTE’s conditions. Likewise, retirement investors cannot agree to waive any of the conditions. In addition, the proposed PTE would require a financial institution to

  • provide the retirement investor—before the transaction takes place—with an acknowledgment of the institution’s fiduciary status in writing, and a written description of the service to be provided and any material conflicts of interest;
  • adopt and enforce policies and procedures designed to discourage incentives that are not in the retirement investor’s best interests and to ensure compliance with the Impartial Conduct Standards;
  • maintain records that prove compliance with the PTE for six years; and
  • conduct a review at least annually to determine whether the institution complied with the Impartial Conduct Standards and the policies and procedures created to ensure compliance with the exemption. Although an independent party does not need to conduct the review, the financial institution’s chief executive officer (or the most senior executive) must certify the review.

Note that the proposed PTE would not give retirement investors new legal claims (e.g., through contract or warranty provisions) but rather would affect the DOL’s enforcement approach.


Next Steps

Many investment advisers, broker-dealers, banks, and insurance companies that will be affected by the proposed PTE currently operate under similar standards found in various state laws and in the SEC’s Regulation Best Interest.  The DOL’s temporary enforcement policy discussed in FAB 2018-02 also remains in effect, as do other more narrowly tailored PTEs.

Each type of investment provider and financial institution is likely affected differently, whether in steps to comply or costs involved. Financial institutions and investment providers may want to review the proposed PTE and start taking steps to comply with it. This may involve creating and maintaining any policies and procedures they don’t already have in place as a result of state law or the Regulation Best Interest.

In the meantime, a 30-day comment period for the proposed PTE starts on July 7, 2020. Comments may be submitted at The Docket ID number is EBSA-2020-0003.



Click here for a printable version of this issue of the Washington Pulse.


Senate Passes Bill to Extend PPP Small Business Loan Application Deadline

On Tuesday, the United States Senate passed by unanimous consent a bill to extend from June 30, 2020, to August 8, 2020, the deadline for businesses to apply for a Paycheck Protection Program (PPP) loan administered by the federal Small Business Administration.

PPP loans were created by the Coronavirus Aid, Relief, and Economic Security (CARES) Act, targeted to businesses with no more than 500 employees. The purpose of the program is to assist small employers in retaining employees on their payrolls in a time of financial stress during the coronavirus (COVID-19) pandemic. More than $130 billion of the $669 billion appropriated for the program had not been applied for as the June 30th deadline approached.

If certain conditions are met, PPP loans can be forgiven and treated as a grant. Among the conditions for full forgiveness is a requirement that 60% of loan proceeds be used for payroll expenses. These expenses can include not only wages and salaries, but also employer contributions to defined contribution and defined benefit retirement plans. Expenses can also include providing group health care coverage, including payment of insurance premiums.

As this is reported, the House of Representatives had yet to approve the bill, which is required—in addition to signing by President Trump—for the application deadline to be extended.


IRS Guidance Provides Limited Relief and Clarification for 401(k) and 403(b) Plans that Suspend or Reduce Safe Harbor Contributions Mid-Year

The IRS has issued Notice 2020-52, guidance that provides sponsors of 401(k) and 403(b) safe harbor plans limited relief from certain otherwise-applicable requirements for mid-year suspension or reduction of safe harbor matching or nonelective contributions.

Notice 2020-52’s temporary relief is being granted as a consequence of the widespread economic challenges facing employers as a result of the coronavirus (COVID-19) pandemic.


Requirement for Mid-Year Suspension of Safe Harbor Contributions

In order to suspend safe harbor matching or nonelective contributions mid-year, a sponsoring employer generally must meet one of the following requirements.

  • The employer must be operating at an economic loss.
  • The employer must have given employees timely notice prior to the start of the plan year that the plan might be amended to suspend safe harbor contributions during the coming plan year, and that such suspension would not apply until 30 days after a mid-year supplemental notice is given.


Temporary Relief for Mid-Year Reduction or Suspension of Safe Harbor Contributions

Employers that adopt or have adopted between March 13, 2020, and August 31, 2020, an amendment to suspend or reduce 401(k) or 403(b) safe harbor matching or nonelective contributions, will not be considered to have violated the economic loss or pre-plan year notice requirements described above.


Temporary Relief for Nonelective Contribution Supplemental Notice

Notice 2020-52 also provides temporary relief for employers that amended or amend their plans for a mid-year reduction or suspension of nonelective contributions, without providing a supplemental notice to employees at least 30 days before the reduction or suspension. This notice requirement will be treated as having been met if the notice is provided to employees by August 31, 2020. This relief is not being extended for a reduction or suspension of safe harbor matching contributions.


Clarification on Reduction or Suspension of Contributions for HCEs

Notice 2020-52 also provides further clarity on mid-year amendments to reduce certain contributions to highly compensated employees (HCEs).

In general, a reduction or suspension of safe harbor contributions only for HCEs is not treated as an impermissible reduction, since contributions on behalf of HCEs are not included in the definition of safe harbor contributions. However, Notice 2020-52 clarifies that a notice to HCEs of the reduction or suspension is still required, and a new deferral election opportunity must be given.

Notice 2020-52’s relief provides a degree of assurance that employers will not be violating safe harbor plan rules that pertain to reductions, suspensions, and notices, if they satisfy its conditions. But the guidance does not provide relief from ADP/ACP nondiscrimination testing for the plan year in which such reductions or suspensions have taken place.