Industry & Regulatory News

Participants in a 401(k) plan sponsored by The Massachusetts Mutual Life Insurance Company (MassMutual) have sued the sponsor for breach of fiduciary duty to the plan. The plaintiffs claim that by offering MassMutual’s own proprietary funds for the plan, the sponsor put its own interest ahead of plan participants. They argue that almost no similarly sized plan sponsors offer those funds, and that there were identical investments with cheaper share classes available that the sponsor should have selected instead.

They also argue that the sponsor improperly retained Empower as the recordkeeper. MassMutual had been a recordkeeper and conducted all recordkeeping for the plan in house. It sold its recordkeeping business to Empower effective Jan. 1, 2021.

After the sale, the sponsor elected to hire Empower as the recordkeeper, and kept it in that position until May 2022, when it hired a less expensive recordkeeper. The plaintiffs contend that MassMutual improperly offered Empower the right to serve as recordkeeper of the plan as an inducement to the sale.

Representative Ron Kind (D-WI) and co-sponsor Mike Kelly (R-PA) have introduced HR 9286 to treat certain price protection payments from Employee Stock Ownership Plans (ESOPs) as eligible rollover distributions. Price protection payments are made under a price protection agreement and provide a guaranteed minimum price for shares that may temporarily decline in value as a result of the company loaning money to the ESOP to purchase shares.

The proposal would treat certain price protection payments made after December 12, 2019, for plan years ending before January 1, 2023, as eligible rollover distributions if payments were made pursuant to a price protection agreement for distributions due to separation from service, retirement, death or disability. For plan years beginning after 2022, payments made under a price protection agreement as a result of any separation of service of a plan participant (regardless of the reason for such separation) would be eligible for rollover. Price protection payments must be made within a period not to exceed the lesser of five years or the life of the exempt loan following the purchase of employer securities with such loan.

The White House announced President Joe Biden’s intent to nominate Danny Werfel as the next Commissioner of the Internal Revenue Service (IRS). The Commissioner is appointed by the President, by and with the advice and consent of the Senate, for a five-year term. If confirmed by the Senate, Mr. Werfel will replace Commissioner Charles Rettig, whose term expires November 12, 2022.

The Pension Benefit Guaranty Corporation (PBGC) has released the Comprehensive Premium Filing Instructions for 2023 Plan Years. Annual premium filings and payments are required under ERISA and PBGC regulations for PBGC covered DB plans.

The Pension Benefit Guaranty Corporation (PBGC) is extending the comment period for a proposed rule that would provide interest rate assumptions that may be used by a plan actuary in determining a withdrawing employer’s liability under a multiemployer plan. PBGC published the proposed rule in the Federal Register on October 14, 2022, with a comment period that was scheduled to end on November 14, 2022. After receiving a request to extend the comment period to provide a total of at least 60 days from October 14, 2022, PBGC is extending the comment period through December 13, 2022. Release of the proposed rule was previously announced.

The IRS has issued Revenue Procedure 2022-40, which permits the submission of determination letter applications for 403(b) individually designed plans. Beginning June 1, 2023, plan sponsors that maintain 403(b) individually designed plans can submit a determination letter application for an initial plan determination, for a determination upon plan termination, for certain merged plans, or for other circumstances that will be announced later in the Internal Revenue Bulletin.

The date on which an application may be submitted for an initial plan determination is staggered over three dates (June 1, 2023, June 1, 2024, and June 1, 2025), depending on the last digit of the plan sponsor’s employer identification number.

Under the revised rules, the IRS generally will consider the qualification requirements and the 403(b) requirements that are in effect, or that have been included, on a required amendments list, on or before the last day of the second calendar year preceding the year in which the determination letter application is submitted. Additionally, a prior letter issued to a pre-approved plan adopter is not treated as an initial plan determination. For example, a determination letter issued to an adopter of a pre-approved retirement plan as a result of filing Form 5307, Application for Determination for Adopters of Modified Volume Submitter Plans, is no longer considered in determining whether a plan sponsor is eligible to submit that plan for a determination letter for an initial plan determination on Form 5300, Application for Determination for Employee Benefit Plan.

The IRS indicates that it will release additional procedural requirements and forms updates in the near future.

The IRS has issued its 2022-2023 Priority Guidance Plan, in which it describes guidance projects in the current fiscal year. Many items in the plan have appeared in prior years’ Priority Guidance Plans. A number of the guidance items deal with retirement savings arrangements, including the following, which have been included in previous plans.

• Regulations and guidance relating to the 10 percent early distribution tax
• Comprehensive IRA regulations
• Final regulations on the application of the normal retirement age regulations under Internal Revenue Code Section (IRC Sec.) 401(a) for governmental plans
• Regulations and guidance updating electronic delivery rules for providing applicable notices and making participant elections
• Final regulations regarding RMD requirements under the SECURE Act (proposed regulations were published in February 2022)
• Regulations relating to SECURE Act modifications to certain rules governing 401(k) plans
• Guidance on student loan payments and their interplay with qualified retirement plans and 403(b) plans
• Guidance on closed defined benefit plans and related matters
• Regulations on the exception to the unified plan rule for IRC Sec. 413(e) multiple employer plans (proposed regulations were issued in July 2019)
• Regulations on the definition of "governmental plan"
• Final regulations updating minimum-present-value requirements for defined benefit pension plans (proposed regulations were issued in November 2016)
• Regulations on mortality tables to determine present value for single-employer defined benefit pension plans
• Final regulations for withholding on distributions when payments are made to a non-U.S. address (proposed regulations were issued in May 2019)
• Regulations relating to the IRC Sec. 6057 reporting requirements (proposed regulations were issued in June 2012)
• Guidance updating electronic filing requirements for employee plans to reflect changes made by the Taxpayer First Act

 Two new noteworthy items include

• Regulations relating to the timing of the use or allocation of forfeitures in qualified retirement plans
• Regulations on the definition of church plan under IRC Sec. 414(e)

The Securities and Exchange Commission (SEC) is adopting amendments to the recordkeeping rules applicable to broker-dealers, security-based swap dealers (SBSDs), and major security-based swap participants (MSBSPs). The amendments modify requirements regarding the maintenance and preservation of electronic records, the use of third-party recordkeeping services to hold records, and the prompt production of records. The SEC is also designating broker-dealer examining authorities as SEC designees for purposes of certain provisions of the broker-dealer record maintenance and preservation rule.

The SEC’s broker-dealer electronic recordkeeping rule currently requires firms to preserve electronic records exclusively in a nonrewriteable, nonerasable format, known as the write once, read many format. The amendments add an audit-trail alternative under which electronic records can be preserved in a manner that permits the recreation of an original record if it is altered, over-written, or erased. According to the SEC, the audit-trail alternative is designed to provide broker-dealers with greater flexibility in configuring their electronic recordkeeping systems so they more closely align with current electronic recordkeeping practices while also protecting the authenticity and reliability of original records. The amendments apply the same requirements to nonbank SBSDs and MSBSPs.

The amendments also require broker-dealers and all types of SBSDs and MSBSPs to produce electronic records to securities regulators in a reasonably usable electronic format.

With publication in the federal register set for tomorrow, the final rule is effective January 3, 2023, and compliance dates for the new requirements will be May 3, 2023, for broker-dealers and November 3, 2023, for SBSDs or MSBSPs.

The Pension Benefit Guarantee Corporation (PBGC) has updated its table titled “Present Value of PBGC Maximum Guarantee” to reflect applicable values for distributions with annuity starting dates during calendar year 2023. The maximum guarantee is expressed as a dollar ceiling on the amount of the monthly benefit that may be paid to a plan participant (in the form of a life annuity beginning at age 65) by the PBGC. The maximum guarantee, which increases each year, is adjusted for benefits commencing at ages other than age 65 in order to make the maximum guarantee equivalent in value regardless of the age at which a participant starts receiving benefits from the PBGC.

The Pension Protection Act of 2006 requires that when the “adjusted funding target attainment percentage” (AFTAP) for a plan is at least 60 percent but less than 80 percent, the plan may not make a distribution in excess of the lesser of

• 50 percent of the amount of the payment that would have been paid if the restriction did not apply, or
• the present value, determined under guidance approved by the PBGC, of the maximum guarantee with respect to the participant under ERISA Section 4022.

The PBGC table is useful in determining the maximum payment for this purpose.

Effective November 2, 2022, the federal prime interest rate increased from 6.25 percent to 7 percent. The prime interest rate is largely determined by the federal funds rate, as set by the Federal Reserve’s Federal Open Market Committee (FOMC). As Department of Labor regulations require a retirement plan loan interest rate to be comparable to interest rates charged by entities that are in the business of lending money in similar circumstances, plan sponsors typically use a benchmark such as the prime rate to set the interest rate on plan loans.

The next FOMC meeting is scheduled for December 14, 2022.