Category Archives: Defined contribution

The NDCP dirty dozen: 409A plan recognition

Pizzano-DominickThis blog is part of a 12-part series entitled “The nonqualified deferred compensation plan (NDCP) dirty dozen: An administrative guide to avoiding 12 traps.” To read the introduction to the series, click here.

To quote Section 409A: An NDCP by any other name is still an NDCP
When the topic of nonqualified deferred compensation plans (NDCPs) is raised, there are certain arrangements that immediately come to mind. Supplemental executive retirement plans (SERPs) in the style of defined benefit plans, straight deferral-only plans, “401(k) mirror plans,” and excess plans are among the vehicles that clearly must be parked in the 409A compliance lot. Employers who offer such arrangements for their select group of top management and/or highly compensated employees have been inundated with information on this topic and most likely have already taken measures to address this requirement with a 409A-compliant plan document and operational procedures. However, it is crucial to note that the Internal Revenue Code Section 409A rules cast a very wide net when it comes to the definition of what constitutes a NDCP. Accordingly, employers need to regularly inventory and review their various compensation/benefits agreements in order to determine if any existing and/or new arrangements are structured in a manner that creates a 409A NDCP. This blog will highlight points to consider when conducting this 409A “to be or not to be” determination process.

The get out of 409A free exemptions
Before beginning the inventory and review process, plan sponsors may be able to immediately wean out some arrangements from consideration if they qualify for a 409A exemption. The 409A rules specifically exempt some from coverage; these include but are not limited to the following:

• Qualified retirement plans under Code Sections 401(a) or 401(k)
• Qualified annuity plans under Code Section 403(a)
• Tax-sheltered annuity arrangements under Code Section 403(b)
• Eligible deferred compensation plans under Code Section 457(b)
• Qualified governmental excess benefit arrangements under Code Section 415(m)
• Simplified Employee Pension (SEP), Salary Reduction SEP (SARSEP), and Savings Incentive Match Plan for Employees (SIMPLE) plans under Code Section 408
• Plans involving deductible contributions to a Code Section 501(c)(18) trust
• Certain foreign plans as described in 409A
• Certain welfare benefits (e.g., any bona fide vacation leave, sick leave, compensatory time, disability pay, or death benefit plan)
• Any Archer Medical Savings Account as described in Section 220
• Any health savings account (HSA) as described in Section 223
• Any other medical reimbursement arrangement, including a health reimbursement arrangement (HRA), that satisfies the requirements of Section 105 and Section 106, such that the benefits or reimbursements provided are not includible in income

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Evaluating retirement readiness formulas

Retirement plan sponsors should evaluate the assumptions used by providers in their retirement readiness calculator formulas. This can result in more accurate projections that help participants make better long-term savings decisions. A recent PlanSponsor article quoted Milliman consultant Kevin Skow discussing some assumptions that sponsors need to assess to improve retirement readiness projections.

Here is an excerpt from the article:

To calculate these projections, providers have to make numerous assumptions about key variables. Some, such as future inflation rates, do not relate to individuals specifically. But many variables do, and the default assumptions a provider uses may or may not reflect reality for a plan’s participants. “In our mind, the assumptions made are critical,” says Kevin Skow, principal and consultant at Milliman Inc. in Minneapolis.

In order to evaluate readiness formulas, plan sponsors should start by looking at three key areas where assumptions are made:

Salary, retirement date and savings. Understand what salary-increase rate a provider’s model assumes, Skow recommends. “How does that equate to what’s happened historically at your company, or what is anticipated in the future?” he says. And these models assume an average retirement age in doing the calculations, he says, so in evaluating a provider’s model, it helps to know whether that number reasonably lines up with a work force’s actual retirement patterns.

The models also hypothesize about a work force’s retirement-savings rates, going forward. In its retirement readiness calculator for participants, Milliman actually asks each to input any deferral increase he plans. When it does plan-level reports on retirement readiness, the company typically takes a “snapshot” approach and does not assume a deferral-rate increase by participants, Skow says. “But if a plan has automatic increases, a model could assume that everybody who was auto-enrolled at a 5% deferral with a 1% increase, for example, will stay with it,” he says. “Most people who are auto-enrolled stay, and very few tend to opt out….”

Additionally, retirement readiness models have to make assumptions about how long people will live… The suppositions about how long people will live have a big influence on these calculations, Skow says. “In our tools, we tend to project that an individual will need income until age 95 if that person is male, or 97 if that person is female,” he says. “Many models use the normal mortality rate in the U.S. today, which is in the late 80s.” A model assuming a shorter lifespan will improve someone’s monthly retirement-income projection, but also may create false security for some who then end up outliving their savings.

The NDCP dirty dozen: An administrative guide to avoiding 12 traps

Pizzano-DominickEven with the economic downturns, heightened Internal Revenue Service (IRS) scrutiny, and ever-increasing compliance complexity that have marked the last decade, nonqualified deferred compensation plans (NDCPs) remain popular and highly effective executive benefit plans. In addition to providing executives with tax-deferred benefits in excess of their qualified plan benefits, these plans also can be structured to serve a wide range of corporate agendas (e.g., golden handcuffs, recruitment, performance incentives, etc.).

However, what could and should be a “win-win” proposition for employers and executives alike can quickly degenerate into a “lose-lose” bet if the players cannot keep track of the compliance cards that cover their plan’s hand. Whether plan sponsors are opening with the initial draw of the design, drafting and communication of NDCPs, or dealing with the ongoing administration of their existing plans, they must ensure that these compliance cards do not get lost in the shuffle. The compliance stakes are very high for both the employers and executives.

For example, employers need to be concerned about violations of Section 409A because the penalties for such violations are significant, and are imposed directly on the executive who receives the deferred compensation. While employers are not directly subject to penalties for these violations, they may decide or have agreed to pay any 409A tax penalties incurred by their employees. Furthermore, employers may face associated tax reporting and withholding penalties.

Based on our experience with these plans, we have identified the following 12 traps as the areas to which plan sponsors need to pay particular attention:

1. 409A plan recognition
2. Plan document requirement
3. “Top-Hat” group determination
4. 409A grandfathering
5. Application of FICA taxation
6. Timing of deferral elections
7. 401(k) contingent benefit rule
8. Timing of distributions
9. Forms of distributions
10. NDCP/defined benefit (DB) plan funding connection
11. Plan termination rules
12. Separate rules for tax-exempt organizations

Throughout 2016, we will be examining one of these issues each month. Whether you deal with NDCPs from the human resources or administrative perspective, these posts will alert you to some of the most common, most problematic, and potentially costliest errors that plan sponsors and/or participants make in these plans. Rather than delve into a highly technical review of the intricacies of the applicable regulations, the above listed 12 traps will be explored, intending to provide guidance regarding not only what to watch out for but also what proactive steps should be taken to avoid these traps.

The year in DC plans: Confidence up, savings to follow?

Regli-JinnieFrom a regulatory perspective, 2015 has been a good year for defined contribution (DC) retirement plans. The Employee Benefit Research Institute (EBRI) 2015 Retirement Confidence Survey reported that 22% of workers are now very confident about their retirement savings, up 4% from 2014 and 9% from 2013 survey results. Despite the rising confidence, only 67% percent of workers have reported they or their spouses have saved for retirement, which is statistically equivalent to the findings from 2014.

As we roll into 2016, we’ll begin to see the effects of most of 2015’s legislative updates. We hope to see a continued rise in retirement confidence among American workers. Here are the regulatory updates from 2015 that will affect defined contribution plans:

Announcement 2015-19 (January): Changed the determination letter program for qualified plans. Effective January 1, 2017, the regular five-year determination letter cycle for individually designed plans will be terminated. Determination letters will only be required upon initial plan qualification and plan termination. Effective July 21, 2015, off-cycle determination letter applications will no longer be accepted.
Form 5500 SUP (effective January 2015): Offers a paper-only form to supplement the Form 5500 for 2015 and later plan years. Only plans that are exempt from mandatory Internal Revenue Service (IRS) electronic filing may use this form.
Rev Proc 2015-28 (April): Updated the corrections procedures under the Employee Plans Compliance Resolution System (EPCRS) to provide some relief for missed deferral penalties.
Rev Proc 2015-32 (June): Granted late filer penalty relief for Form 5500-EZ filers. The new payment per submission is $500 for each delinquent return for each plan up to a maximum penalty of $1,500 per plan.
• H.R. 3236, Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 aka “The Highway Funding Bill” (July): Extended the Form 5500 deadline for taxable years beginning after December 31, 2015. For calendar-year plans, the deadline extends from October 15 to November 15 of the following year.

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Automatic savings increase tool enhances 401(k) plan

Milliman’s automatic savings increase tool helped one bank transition to a defined contribution-focused retirement program. In this article, Noah Buck discusses how the organization’s 401(k) plan achieved higher employee participation as well as greater savings rates two years after plan modifications.

Here’s an excerpt:

Separate from providing guidance and strategy on plan design, Milliman helped the client roll out a secret weapon: Milliman’s voluntary automatic savings increase tool. To be clear, the plan design changes mandated a 1% annual increase up to 10% for any participant who is automatically enrolled. The voluntary automatic savings increase tool is a feature of Milliman’s website that allows participants to elect their own automatic increase schedule. It is a convenient mechanism to help participants update or confirm their current savings rate and choose an annual increase date, the annual incremental increase, and the maximum savings rate. For example, a participant may elect to save at 5% with an annual 1% increase every September 1 until the savings rate reaches 12%. Participants can provide their email address in order to receive a reminder a few weeks before the scheduled annual increase.

The voluntary automatic savings increase tool was not expected to have a major impact. Instead, it was considered something useful to help chip away at the lost 11.5% of annual DB benefits. It was also considered a means for those participants on a tight budget who were not automatically enrolled to increase their savings rates at their own pace.

… As seen in the table below, the average expected total increase in the savings rate for the 35 participants who elected auto-increase is 5.9%, which will roughly double the current average savings rate for this group. This increase, combined with the expanded profit-sharing contribution, is projected to close the 11.5% gap for many employees.

Auto savings increase tool_image

You heard it before, American workers still aren’t saving

Moen-AlexA recent survey shows that Americans are saving more overall, but less in employer-sponsored retirement plans. So how can sponsors and administrators of defined contribution plans solve this? Easy:

1. Use an auto-enrollment design with a default of no less than 6%.
2. If you provide a match, stretch the match to at least 7% or 8% of pay.
3. Consider adding a nonelective (i.e., profit-sharing) contribution.
4. Reenroll all non-savers every six years at the default rate.

Some experts suggest that automatic plan features are the best way to change behavior. This is most likely true, but a New York University (NYU) study suggests that while auto-enrollment gets people into the plan, it is not ensuring that they build secure retirements. All too often employers select the default rate of 3%, which, according to researchers, reduces long-term retirement savings for those who would have enrolled at a higher rate. As consultants, we see this example frequently—a young employee enters the plan automatically and three years later is still at 3%, even though the plan is matching deferral rates up to 6%. Out of sight and out of mind can be dangerous for young employees. The NYU study states that 80% of retirement plans include an employer match contribution, and of those plans, almost half of employees are not maximizing the match. That means that at least half of workers do get it; at the right deferral rate, there is free money on the table. With this in mind, consider an example to illustrate the savings impact of a new match contribution formula: currently, the match is 50% of the first 6% (or maximum of 3% of pay). Why not match 100% of the first 1%, then 25% of the next 8%? In this scenario, we could argue that half of the employee population would defer 9% of pay to get the 3% match. This would produce a total annual contribution of 12% of pay per year, without the employer matching anymore compensation than it did in the current formula.

Figure 1: Match Formulas

Figure 1

To emphasize the impact of different deferral rates on an employee’s account balance at retirement, using the proposed new match formula, see the chart below:

Figure 2: Potential Savings

Figure 2

A recent Employee Benefits Research Institute Retirement Confidence Survey asked workers what action they would take if they were automatically enrolled into their retirement plans, deferring 6%. Nearly three-quarters, 74%, responded that they would stay at that rate or increase their contribution rates. This survey addressing employee behavior offers strong incentive for a 6% auto-enrollment rate. In my opinion, plan sponsors should incorporate this type of employee behavioral analysis into the plan design process. A current client has maintained participation rates near 90%, with a 6% auto-enrollment rate. And of those deferring, 84% defer at a rate greater than or equal to 6%.

While matching contributions are an important feature, the researchers argue a more beneficial tool for a plan is a general (i.e., nonelective) contribution. And if the employer can afford to, and the plan is designed for the population correctly, the nonelective contribution can provide a more substantial retirement benefit. There are, of course, trade-offs, and with nonelective contributions comes stricter annual testing.

Something else to think about—reenrolling all current employees when the plan adds the auto-enrollment design. I have witnessed firsthand the success of such an endeavor with another Milliman client who did this 18 months ago. The plan went from 63% participation to 97%—and has maintained that level.

As an administrator of defined contribution plans, I know automatic arrangements can be difficult to administer, but the recent relaxation by the Internal Revenue Service (IRS) of correction rules (Revenue Procedure 2015-28), and the evidence provided by the surveys mentioned above, simplify the decision. If employers enroll new employees in plans automatically, they are clearly likely to stay, and the automatic arrangement often becomes the obvious choice. But the rate needs to be high enough to be worthwhile. Plan sponsors must evaluate the goals of their plans. Is the objective to simply have higher participation, satisfy tax incentive rules, and ensure that workers save something toward retirement? Or is it to truly build a serious retirement benefit for employees? In that likely case, additional studies of the employee population and their saving behavior must be incorporated into plan designs.

Retirement plan enrollment considerations

Employers are constantly seeking new ways to get employees enrolled in their retirement plans. This Plan Adviser article quotes Milliman’s Gerald Erickson and Jinnie Olson discussing how automatic plan designs and targeted communication strategies can affect the enrollment of participants especially Millennials.

Here is an excerpt:

When it comes to automatic plan design, says Gerald Erickson, a principal at Milliman Inc. in Minneapolis, the adviser community obviously supports these features. Still, it is important to acknowledge that while popular opinion claims auto plans are the next logical step in improving participant outcomes, “from a plan sponsor and an administrator/recordkeeper perspective, automatic plans are not easy to administrate.”

There’s a lot that goes on behind the scenes, he says, and that may include some mistakes. “I think it’s important for people to understand that it’s not as easy as just getting people to automatically go in the plan and think that’s the end of it. It does require a lot of work from the plan sponsor side, and it does require a lot of work from the recordkeeping/administrator side.”

Plan advisers should be wary of potential complications when designing their automatic features. Most retirement plan advisers are “looking at what makes the biggest impact in getting people in the plan,” Erickson says, which for Millennials may lead them to look at Roth options. “If you add a Roth feature to the plan,” he points out, Millennials that are in a lower tax bracket now can essentially “marginalize their tax hit by taking advantage of the tax-free distribution on the back end.”

Speaking for Millennials, Olson says, “We’re really the first generation that’s going to have to fund our own retirement, rather than relying on the typical defined benefit [DB] plan that’s losing popularity, and it can be really intimidating for people to hang onto enrollment packets for a year while you try to meet the eligibility requirements.”

…Advisers can help make an overwhelming amount of information more accessible for all participants, Olson says. “You want to be able to give that information to everybody but in a way that everyone has the opportunity to get through it and understand what it is,” she says. “Rather than a 15-page enrollment packet, maybe you pare it down to two pages, summarizing everything, but then give them the opportunity to look into it more later.”

Will the proposed overtime pay changes affect your retirement plan compensation?

Smith-SuzanneThe U.S. Department of Labor (DOL) announced a proposed rule on July 6, 2015, that would change who qualifies for overtime pay.

Today, only 8% of salaried workers qualify for overtime pay—those workers who earn less than $23,660. The proposed rule will extend overtime pay to salaried workers who earn less than about $50,440 next year. The proposed change is estimated to cover 4.6 million workers, more than the current regulations.

What does this mean for the retirement plans of employers that will be affected by this proposed rule?

While many employers use gross compensation or total pay for retirement plan purposes, some employers provide retirement benefits only on base pay, excluding additional pay such as overtime, bonuses, or premiums for shift differentials.

Generally, excluding overtime pay for retirement plan purposes is OK if the plan’s definition of compensation passes nondiscrimination testing.

Nondiscrimination testing on compensation is done by comparing the average includable compensation for highly compensated employees (HCEs) to the average includable compensation for non-highly compensated employees (NHCEs). If the HCE average percentage exceeds the NHCE average percentage by more than a de minimis amount, the plan will fail the test. A de minimis amount is generally thought to be no more than 3%, but there is no formal guidance so plan counsel should be involved.

2015 example: Plan excludes overtime pay and bonuses from plan compensation

HCE Average Includable Compensation 95%
NHCE Average Includable Compensation 93%
PASS

Because the HCE average inclusion percentage exceeds the NHCE average inclusion percentage by no more than 3%, the plan passes the test.

But what happens next year if many of the NHCE participants are suddenly eligible for overtime pay? The increase in excludable overtime pay will cause the NHCE inclusion ratio to drop, and the disparity between HCE and NHCE includable compensation will exceed 3%—and thus fail the test.

2016 example: Plan excludes overtime pay and bonuses from plan compensation

HCE Includable Compensation 95%
NHCE Includable Compensation 86%
FAIL

Because the HCE average inclusion percentage exceeds the NHCE average inclusion percentage by more than 3%, the plan fails the test.

Failed testing is never good. More complex testing would have to be done, and the plan may have to take corrective action if the complex testing doesn’t pass.

Employers with salaried workers who would qualify for overtime under the proposed changes will want to check their retirement plan compensation definitions and keep an eye on what happens with the proposed overtime regulations.

Interested parties can submit comments on the proposed rule at www.regulations.gov (RIN: 1235-AA11) on or before September 4, 2015. The DOL is expected to make a final rule next year.

IRS guidance on favorable determination letters for individually designed plans expected this summer

Smith-SuzanneEvery summer we look forward to nice weather, vacations, picnics, and barbecue. And Internal Revenue Service (IRS) guidance.

Yes, this summer we are expecting IRS guidance relating to changes in the determination letter program. The IRS has informally communicated a possible halt, beginning in 2016, to the issuance of IRS determination letters for individually designed retirement plans except for new plans or terminating plans. A formal announcement with details and an opportunity for comment is expected this summer.

Initially, this may sound like a beneficial change for employers because it eliminates a burdensome and costly process that individually designed retirement plans must generally undertake every five years.

But the potential negative impact of such a change is very concerning. While there is no federally regulated requirement to have favorable determination letters for each retirement plan, there are many good reasons for employers to seek them:

Reliance on audit: By having a current determination letter, an employer has assurance that its plan language is tax-qualified. If a plan is audited, the employer can rely on the determination letter to prove the plan’s tax-qualified status.
Approval of amendments to plan: Most plans are amended from time to time to incorporate new laws and optional plan provisions. A determination letter is important to demonstrate that the amended plan language meets the tax-qualified rules.
Due diligence for corporate restructuring transactions: When corporate restructuring transactions such as mergers, acquisitions, or divestitures occur, it is prudent to obtain current determination letters to review the tax qualifications of the plans involved in the transaction.

Without the ability to secure a current determination letter, plan sponsors would not be able to confirm the tax-qualified status of their plans, thereby leaving them unprotected in the event the IRS finds the plan language to be noncompliant during a future audit. Such a finding could result in severe penalties.

Two types of plans that have been considered individually designed and for which an employer would generally seek a favorable determination letter are employee stock ownership plans (ESOPs) and cash balance plans.

Perhaps recognizing that it will be limiting the availability of determination letters for individually designed plans, the IRS has recently released guidance that would expand the preapproved plan document program to include ESOPs and cash balance plans. If an employer uses preapproved language without modifications, an employer would have reliance on the IRS opinion/advisory letter without the need for a favorable determination letter. Thus, employers with individually designed ESOPs and cash balance plans may want to consider converting their plans to preapproved plan documents in the future.

So, as we kick off summer, we are anxiously awaiting IRS guidance on the future of the determination letter program as well as watermelon, fireworks, and pool parties.

Employers helping former employees deal with rollover fees

Many defined contribution plan participants are incurring excessive fees when they roll over their account balances into their IRAs. Sponsors can help former employees maintain their savings by retaining the account balances within their qualified plans. In this article, Milliman consultant Doug Conkel discusses what plan sponsors are doing to help their former employees make better decisions with their plan balances.

Here is an excerpt:

Plan design thoughts

Like other transformations within the defined contribution (DC) market, the genesis of these changes is linked to creating a defined contribution plan with some attributes passed down from the “pension plan era.” Participants and sponsors alike are considering changes that shift the plan design discussion from retirement accumulation topics to the “de-accumulation” or payout phase. So what plan design changes are they making?

Partial lump-sum distributions. Many sponsors have modified their plans such that former participants can request a partial lump-sum distribution of their account balances. This enables former participants to satisfy a one-time expense while leaving a portion of their account balances in the plan.

Installments. Years ago, many sponsors simplified their distribution options by removing installments, based on the conclusion that “a participant can set up installments outside the plan (usually an IRA or annuity).” However, now some sponsors have come to realize the issues noted above with outside accounts and some participants are requesting in-plan installments. Some sponsors are again electing to liberalize the distribution options by allowing former participants to elect installment payments from the plan, which gives participants flexibility and allows them to keep their accounts in the plan….

Education and communication

Guidance on comparing fees. A plan that is run in an unbiased environment is able to provide guidance to participants to help them understand the fees they pay under the current plan provisions and how they might compare those fees to individual retail arrangements. The participant fee disclosure rules introduced a few years ago provide participants with the information they need to access their current plan’s total fees. The plan’s annual notice provides the investment expense ratios from which participants can calculate a weighted expense ratio using their personal account. Plus, using their quarterly statements, a participant can also determine the amount of direct expenses (if any) being deducted from the account. These two key pieces of information yield the total cost of a participant’s account within the qualified plan. If participants can obtain the same information about proposed IRAs or new employers’ retirement plans, they should be able to perform an apples-to-apples comparison of the fees. A best practice in the future would be to provide some guidance to former plan participants to assist them in making this comparison so they can then make informed decisions.