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Q3 Pension Pontifications

DWC 09/13/18

All of us here at DWC thrive on the really geeky stuff, and some of the best discussions start with Adam and Keith’s pontifications about how different topics impact our clients and our industry.  We decided to bring the best of those conversations to you, still with a touch of geekiness but also distilled into easily digested, bite-sized pieces. Anyone can summarize a summary and call it commentary or analysis. But as always, our commentary is based on reading the actual rules, regulations, executive orders, and advisory opinions.  - As originally published in our Q3 401(k) Q&A Update newsletter

Hardship Distribution Rules Changing for 2019

The spending bill that Congress passed in early February includes several very welcome changes that simplify the hardship distribution rules:

  • The new law eliminates the requirement that a participant suspend making 401(k) deferrals for six months following the hardship distribution.
  • The requirement that a participant take a plan loan before taking a hardship distribution has also been eliminated.
  • The new law also eliminates source restrictions and will make deferrals, QNECs, QMACs, and investment gains on all three accessible for hardship distributions just like all other account sources.

These changes are effective for plan years beginning after December 31, 2018.  As of the date of this newsletter, we are still awaiting guidance from the IRS on next steps.  At a minimum, plans that wish to implement these changes will need to adopt an amendment.  As soon as the guidance is available, we will act quickly to help our clients implement these very welcome simplifications.

President’s Executive Order on Retirement Plans

As we were headed into the Labor Day weekend this year, the President signed an executive order directing the applicable government agencies to review the current rules on required minimum distributions (RMDs), open multiple employer plans (open MEPs), and required participant notices.


Current rules require participants to begin taking distributions of their retirement accounts in annual installments (based on their remaining life expectancies) beginning at age 70 ½.  Non-business-owners who remain employed are permitted to postpone RMDs until they actually retire.  The Order directs the Treasury Department to review the mortality tables used to calculate RMDs amounts and determine whether they should be updated now and on a regularly recurring basis to reflect current life expectancies.  These changes, if made, would reduce annual RMD amounts so that retirement accounts last longer.

Additional Resources:

Open MEPs

Back in the early 2000s, there was industry debate about whether a group of completely unrelated companies could join together and form a single 401(k) plan that covered all of their employees.  The concept was marketed as an “open multiple employer plan.”  In May of 2012, the Department of Labor brought an end to that debate by issuing Advisory Opinion 2012-04A.  That opinion indicated that these aggregated plan arrangements are not truly MEPs but are, instead, collections of separate stand-alone plans that must each file Forms 5500, etc. even though they might use the same plan document and service providers.  The Order directs both Treasury and DOL to review its existing guidance to determine how best to expand the availability of MEPs so that more employees have access to workplace retirement accounts.

Although we are supportive of open MEPs (with appropriate participant safeguards in place to prevent a repeat of this situation), our view is that this initiative is much ado about nothing.  Even if they are allowed to file a single Form 5500, each company that adopts a MEP is still required to undergo annual nondiscrimination testing separately.  Not to mention, for open MEPs to deliver the advertised economies of scale that help control costs, plan design options for each adopting employer would have to be somewhat limited.  Given that there are not really any significant efficiency gains on the compliance side of the equation and that investment advisory and recordkeeping fees in general continue to become much more competitive, we question whether it will make sense for many employers to give up the flexibility of a stand-alone plan in exchange for an ever-shrinking cost-savings.

Additional Resources:

Participant Notices

It’s no secret that sponsoring or being a participant in a retirement plan comes with a mountain of notices, some recurring on an annual or quarterly basis and others driven by certain events.  The cost of preparing these notices, many of which must still be sent via hard copy, generate a great deal of paper and expense and often go ignored by the very participants they are meant to help.  The Order directs the agencies to review both the content of the notices (to make them more understandable) as well as the delivery method (to expand the use of electronic media) to reduce the financial and administrative burden of compliance, while ensuring that participants get the information they need.

Additional Resources:

Student Loan Benefits in 401(k) Plans

Last month, the IRS issued a Private Letter Ruling (PLR) that dealt with offering a student loan benefit via the company-sponsored 401(k) plan.  Although it is being heralded as some earth-shattering new change, it really doesn’t break any new ground.  There is a rule that says a plan cannot make any benefit other than a matching contribution contingent on whether a participant makes 401(k) deferrals.

The company requesting the PLR had a plan provision that provided a special profit sharing contribution to eligible plan participants who used a certain percentage of their compensation to pay down student loans.  The company wanted the IRS to rule on whether that provision violated the so-called “contingent benefit rule.”  Since the provision did not make any benefits contingent on employee deferrals, it came as no surprise (at least not to us) that the IRS’ didn’t have a problem with it.  It also came as no surprise that the PLR does not address whether the plan design satisfies all of the regular nondiscrimination requirements that apply.

Additional Resources:


Is anyone reviewing SIMPLE IRAs to ensure they are compliant?  Our anecdotal experience is a resounding “no”.  Apart from low or non-existent service provider costs, the big selling point is usually that SIMPLE IRAs do not require annual nondiscrimination testing or Form 5500.  Both of those things are true, but that doesn’t mean there are no compliance issues to review.  Here are just a few:

  • Is plan eligibility being determined correctly?
  • Has the required company contribution been calculated properly and deposited timely?
  • Are participants receiving all of the required notices?
  • Is the company even allowed to maintain its SIMPLE plan?

We rarely see a SIMPLE IRA that is compliant in these and other areas precisely because of the impression that there is nothing to monitor.  This is why we have started offering our recurring compliance services for these plans at fair fees.  Eventually, the government agencies will get “curious” about these plans.  In fact, the IRS correction program already allows sponsors to voluntarily fix compliance problems with their SIMPLEs.  That is good news for plans that might already need to do some clean-up, but the saying that an ounce of prevention is worth a pound of cure is even more applicable.

Additional Resources:

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Topics: Multiple Employer Plans (MEP), DWC, SIMPLE, Required Minimum Distribution (RMD), Hardship Distributions, Participant Notices, Student Loan Benefits


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The views expressed in this blog are those of the authors and do not necessarily represent the views of any other person or organization. All content is provided for informational purposes only and is not intended to be tax or legal advice.