Industry & Regulatory News

The IRS has issued Revenue Procedure 2022-38, which contains cost-of-living adjustments for taxable years beginning in 2023 for over 60 tax provisions, including the following health and welfare benefits.

Cafeteria Plans

The dollar limitation under Internal Revenue Code Section (IRC Sec.) 125(i) on voluntary employee salary reductions for contributions to health flexible spending arrangements is $3,050, up from $2,850 for 2022. For cafeteria plans that permit the carryover of unused amounts, the maximum carryover amount is $610, up from $570 for 2022.

Qualified Transportation Fringe Benefit

The monthly limitation under IRC Sec. 132(f)(2)(A) for the aggregate fringe benefit exclusion amount for transportation in a commuter highway vehicle and any transit pass is $300, up from $280 for 2022. The monthly limitation under IRC Sec. 132(f)(2)(B) for the fringe benefit exclusion amount for qualified parting is $300, up from $280 for 2022.

Qualified Small Employer Health Reimbursement Arrangement

To qualify as a qualified small employer health reimbursement arrangement under IRC Sec. 9831(d), the arrangement must provide that the total amount of payments and reimbursements for any year cannot exceed $5,850 or $11,800 for family coverage, up from $5,450 or $11,050 for family coverage for 2022.

For additional information on the 2023 inflation-adjusted limits for other tax provisions, see Rev. Proc. 2022-38.

The IRS has issued Revenue Ruling 2022-20, which contains the applicable federal rates (AFR) for November 2022. These rates are used for such purposes as calculating distributions from retirement savings arrangements that meet the requirements for substantially equal periodic payments (a 10 percent early distribution penalty tax exception), also referred to as “72(t) payments.”

The IRS has issued Notice 2022-54, which contains updated guidance on factors used in certain defined benefit (DB) pension plan minimum funding and present value calculations. Updates include the corporate bond monthly yield curve, the corresponding spot segment rates for October used under Internal Revenue Code Section (IRC Sec.) 417(e)(3), and the 24-month average segment rates under IRC Sec. 430(h)(2). IRC Sec. 417 contains definitions and special rules for minimum survivor annuity requirements in DB plans. IRC Sec. 430 addresses minimum funding standards for single-employer DB plans.

The Federal Emergency Management Agency (FEMA) has issued a disaster declaration for severe storm and flooding in Illinois, beginning October 14, 2022.

Employers with qualified retirement plans may allow participants to take hardship distributions if

• they have incurred expenses and losses because of a FEMA-declared disaster, and
• their principal residence or place of employment at the time of the disaster is located in an area designated by FEMA as eligible for individual disaster assistance.

If the employer permits hardship distributions for expenses and losses related to a federally declared disaster, participants can check fema.gov/locations to determine if they are located in a disaster area designated for individual assistance.

The IRS may also issue relief related to this disaster for certain tax-related deadlines. Additional information can be found at irs.gov/newsroom/tax-relief-in-disaster-situations and will be announced here if such relief is granted.

The Pension Benefit Guarantee Corporation has determined premium rates applicable for the 2023 plan year in accordance with indexing rules provided in section 4006 of ERISA. The single-employer plan per-participant flat rate premium for plan years beginning in 2023 is $96, up from $88 in 2022 and more than triple the premium rate in 2007. The single-employer plan variable-rate premium for 2023 increases to $52 per $1,000 of unfunded vested benefits, up from $48 in 2022. The variable-rate premium per participant cap increased to $652 per participant, from $598 in 2022.

H. R. 7780, the Mental Health Matters Act, introduced by Representative Mark DeSaulnier (D-CA) in May, has passed the House and has been referred to the Senate Committee on Health, Education, Labor & Pensions. As previously announced, the bill contains a group health plan provision that would amend ERISA Section 502(a) to expand the type of remedy permitted by a civil action brought by the Secretary, a plan participant or beneficiary, or a plan fiduciary to include readjudication of claims and payment of benefits in accordance with plan terms.

Included in the Mental Health Matters Act is a proposal to amend ERISA to provide that any mandatory predispute or coerced postdispute arbitration clause, class action waiver, representation waiver, or discretionary clause with respect to a plan is unenforceable. The bill would also amend ERISA to prohibit any such clause or waiver from being included in a plan document or other agreement with participants. These provisions were originally introduced under H.R. 7740 and announced.

FINRA has issued a $5,000 fine and six-month suspension against a former registered representative for “recommending a series of transactions in the account of one retail customer that was excessive in light of the customer’s investment profile and therefore not in the customer’s best interest."

The Social Security Administration has announced the 2023 adjustments for benefits and certain other limitations that are subject to annual cost-of-living adjustment (COLA) indices. One of these includes the Social Security taxable wage base (TWB), which identifies the maximum amount of an individual’s annual earnings that are subject to withholding for Social Security-administered benefits. The TWB is sometimes also used in retirement plan contribution allocations that use so-called “integrated” formulas, providing additional retirement plan benefits on income above the TWB, income for which the recipient will not receive Social Security benefits. For 2023, the TWB will rise from $147,000 to $160,200.

The Department of Treasury has issued a final rule amending the affordability determination used to determine a family’s eligibility for the premium tax credit. The final rule provides that employer-sponsored health coverage is affordable based on the cost of coverage for the employee and related individuals, not just on the cost of coverage of the employee. In addition, the final rule requires the plan to provide a minimum value coverage for related individuals of 60 percent, similar to the existing rule for employees. An employer plan that provides minimum value to an employee also provides minimum value to related individuals if the scope of benefits and cost sharing under the plan are the same for employees and family members.

The final rule does not require employers to compute minimum value separately for employee and related individuals. The final rule also does not

• affect reporting required under Code section 6055 and 6056 (i.e.,1094 and 1095),
• affect affordability calculations for individual coverage health reimbursement arrangements or qualified small employer health reimbursement arrangements, or
• affect affordability calculations for employees offered multiple offers of coverage.

Finally, employers that offer coverage through a cafeteria plan may permit an employee to disenroll from coverage to enroll in Exchange coverage beginning January 1, 2023. Coincident with this final rule, the IRS has issued Notice 2022-41, which allows a non-calendar year cafeteria plan to permit an employee to revoke an election of family coverage to enroll in Exchange coverage under two conditions.

• the individual qualifies for a special enrollment period and
• the revocation corresponds with the intent to enroll in Exchange coverage no later than the day immediately following the last day employer coverage is revoked.

An employer choosing to amend the cafeteria plan may amend the plan retroactively to the first day of the plan year and must adopt the amendment before the last day of the plan year that begins in 2024. The final rule becomes effective on December 12, 2022.      

The Pension Benefit Guaranty Corporation (PBGC) is proposing to provide interest rate assumptions that may be used by a plan actuary in determining a withdrawing employer’s liability under a multiemployer plan. Under ERISA, an employer that withdraws from a multiemployer plan may be liable to the plan for withdrawal liability, which generally represents the employer’s share of any unfunded vested benefits that the plan may have at the end of the plan year immediately preceding the plan year in which the employer withdraws. The plan actuary determines the present value of the plan’s nonforfeitable benefits using actuarial assumptions and methods.

The proposed rule clarifies that it is reasonable to base the interest assumption used to calculate an employer’s withdrawal liability on the market price of purchasing annuities from private insurers, such as by use of settlement interest rates prescribed by PBGC under Section 4044 of ERISA (4044 rates). The proposed rule would specifically permit the use of 4044 rates either as a standalone assumption or combined with funding interest rate assumptions, to determine withdrawal liability.

PBGC indicates the rule will be published in the Federal Register on October 14, 2022, and comments may be submitted by November 14, 2022.