ERISA News

The IRS has issued Revenue Procedure (Rev. Proc.) 2022-28, which updates Rev. Proc. 2022-3, on whether the IRS will issue letter rulings or determination letters. The IRS will no longer issue letter rulings on whether an employer reversion of cash and the fair market value of other property received from a qualified plan occurs in connection with a spin-off/termination transaction that involved excess assets. For this Revenue Procedure, a “spin-off/termination transaction that involves excess assets” is defined as a transaction in which:

Representatives Linda T. Sánchez (D-CA) and Darin LaHood (R-IL) introduced the Starter-K Act, legislation intending to expand access to retirement savings for more Americans. Companion legislation was introduced in the Senate by Senators John Barrasso (R-WY) and Tom Carper (D-DE).

Effective June 15, 2022, the Federal Prime interest rate increased from 4.00% to 4.75%. 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 July 26-27, 2022.

The Senate Health, Education, Labor and Pension (HELP) Committee unanimously passed out of committee S.4353 the Retirement Improvement and Savings Enhancement to Supplemental Healthy Investments for the Nest Egg (RISE & SHINE) Act (previously announced), with two amendments.

Senators Patty Murray (D-WA) and Richard Burr (R-NC), chair and ranking member of the Senate Health, Education, Labor and Pensions (HELP) committee respectively, have introduced the Retirement Improvement and Savings Enhancement to Supplemental Healthy Investments for the Nest Egg (RISE & SHINE) Act, the Senate HELP committee’s latest version of compiled retirement provisions. While the provisions included in this version of the bill remain substantially similar to the discussion draft version previously announced, some technical details have been changed or removed from select provisions.

Senators Cynthia Lummis (R-WY) and Kirsten Gillibrand (D-NY) announced the “Lummis-Gillibrand Responsible Financial Innovation Act,” set to be introduced in the Senate. The Senators describe the bill in an accompanying press release as a “complete regulatory framework for digital assets.” Included within the many provisions of the bill is a requirement for the Government Accountability Office (GAO) to conduct a study and provide a report to Congress and the Secretaries of Treasury and Labor on benefits, risks, and barriers to retirement investing in digital assets.

According to an Employee Plans News release, the IRS is piloting a pre-examination retirement plan compliance program beginning in June 2022. Plan sponsors of retirement plans that have been selected for examination would be notified by letter and given a 90-day period to review plan documents and operations to determine if there are compliance issues. Mistakes found that qualify for the Self Correction Program under the Employee Plans Compliance Resolution System can be corrected in that manner. For items that don’t qualify, the plan sponsor can request remediation through a closing agreement with the IRS. The IRS will review documentation and either issue a closing letter or conduct a limited or full scope examination. The goal of the pilot program is to reduce taxpayer burden and reduce time spent on retirement examinations. The duration of the pilot was not specified, but the IRS will evaluate the effectiveness of the program to determine if it will become part of their overall compliance strategy. 

Senators Patty Murray (D-WA) and Richard Burr (R-NC)—chair and ranking members of the Senate Health, Education, Labor and Pensions Committee respectively—have released a discussion draft of compiled retirement provisions from several bills into the Senate’s latest version of what has been coined SECURE Act 2.0. The RISE & SHINE Act shares some similarities to, and builds upon the Securing a Strong Retirement Act bill that passed the House in March.

Representative Byron Donalds (R-FL) and several Republican co-sponsors have introduced HR 7860, the Financial Freedom Act of 2022. This is companion legislation to S 4147 introduced earlier this month by Senator Tommy Tuberville (R-AL). The proposal would prohibit the Department of Labor (DOL) from restricting the types of investments that plan participants can choose through participant directed accounts and self-directed brokerage accounts. The bills are in response to regulatory guidance released by the DOL and announced in March.

Senator Dan Sullivan (R-AK), along with co-sponsors Pat Toomey (R-PA), Mike Crapo (R-ID) and Chuck Grassley (R-IA), have introduced S. 4241 the “Investor Democracy is Expected Act” or INDEX Act. The bill would require investment advisors of passively managed funds to vote proxies in accordance with the instructions of fund investors – not at the discretion of the adviser. The adviser would be responsible for passing through the proxies, collecting the instructions, and voting according to the investors’ wishes. With the exception of routine matters, the investment advisor cannot vote on the proportion of shares for which voting instructions were not received. The proposal provides for a safe harbor whereby investment advisors would not be in violation of duties by choosing not to solicit voting instructions or voting the particular proxy.