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Thursday, October 17, 2013

It’s time to ensure year-end qualified plan deadlines are satisfied. Below is a checklist designed to help employers with this process, including information regarding the U.S. Supreme Court’s recent decision in U.S. v. Windsor regarding the Defense of Marriage Act (“DOMA”) and the impact of this decision on qualified retirement plans.  This checklist addresses both year-end deadlines and January 2014 deadlines which sponsors of qualified retirement plans may wish to begin preparing for now.

A.        DEADLINES APPLICABLE TO QUALIFIED RETIREMENT PLANS

  • Cycle C Sponsors.  Individually designed plans are on five-year cycles for renewing their determination letters with the IRS.  For most Cycle C sponsors (i.e., those sponsors with an employer identification number ending in either 3 or 8), the five-year cycle will end on January 31, 2014.  Generally, governmental plans are assigned to Cycle C.  However, governmental plan sponsors may elect Cycle E (i.e., February 1, 2015 to January 31, 2016) by filing their determination letter application in Cycle E rather than in Cycle C.  No election form or notice to the IRS is required if a governmental plan sponsor plans to make this Cycle E election.

Non-governmental Cycle C sponsors (and governmental sponsors who do not plan to elect Cycle E) who have not already renewed their determination letter this cycle should be prepared to submit their amended and restated plans to the IRS by no later than January 31, 2014.  Additional information on timing cycles and determination letters can be found here.

  • 403(b) Plans and IRS Voluntary Correction Program.  IRS regulations applicable to 403(b) plans required that the plans be maintained pursuant to a written plan document adopted no later than December 31, 2009.  Under guidance issued this year (Rev. Proc. 2013-12), the IRS updated the correction programs available under its Employee Plans Compliance Resolution System (“EPCRS”) to address, among other things, the failure of a 403(b) plan to adopt a written document before the 2009 deadline.

Under the EPCRS, the standard fee for a voluntary correction submission ranges from $750 for a 403(b) plan with 20 or fewer participants to $25,000 for a 403(b) plan with over 10,000 participants. However, the IRS has provided certain relief for voluntary submissions where (i) the voluntary submissions are made on or before December 31, 2013 and (ii) the only failure of the 403(b) plans is the failure to timely adopt a written plan document.  If both of these requirements are met, the fee is reduced by 50%.

Sponsors of 403(b) plans may wish to consult with their employee benefits advisors to determine whether a submission to the EPCRS is necessary and how to proceed with the voluntary compliance submission, taking into account the fee reduction for 2013.

  • Cash Balance and Hybrid Plans. The Pension Protection Act of 2006 made several changes affecting cash balance and hybrid pension plans, including requiring three-year vesting and prohibiting interest credits at an interest crediting rate that exceeds a market rate of return. The IRS issued guidance in late 2012 (Notice 2012-61) that extended the deadline for adopting amendments implementing the above-referenced interest crediting and market rate of return requirements. The extended deadline is the last day of the plan year before the plan year when regulations implementing the interest rate requirements become effective. We are still awaiting guidance from the IRS as to this requirement. Check back to www.benefitsbryancave.com for any updates to this requirement before year-end.
  • Funding Level Restrictions for Defined Benefit Plans. Code Section 436 imposes certain restrictions on distributions and limitations on benefit accruals if a defined benefit plan’s funding level dips below certain thresholds. While most plans have already been amended to comply with these rules, the deadline for doing so for most calendar year plans is December 31, 2013.

B.        IMPACT OF WINDSOR ON QUALIFIED RETIREMENT PLANS

In Windsor, the U.S. Supreme Court held that Section 3 of DOMA (which required that, for federal law purposes, a marriage be treated as only a marriage between a man and a woman) was unconstitutional.  In Rev. Rul. 2013-17, the Internal Revenue Service (“IRS”) took the position that, following Windsor, a couple in a valid same-sex marriage entered into in a state recognizing such marriage, would be treated as “married” for federal tax purposes, regardless of whether the couple stayed in that state or moved to a state which does not recognize same-sex marriage (i.e., a “place of celebration” approach).

For qualified retirement plans, this means that the plans must ensure that they treat a same-sex spouse as a “spouse” for purposes of satisfying federal tax laws relating to qualified retirement plans.  The IRS guidance states that qualified retirement plans needed to be in operational compliance with its requirements by September 16, 2013.  However, the IRS also stated that it expects to issue further guidance on compliance, including guidance on plan amendment requirements (including the timing of any required amendments), any necessary corrections relating to plan operations for periods before future guidance is issued and the retroactive effect of Windsor for federal tax purposes.

The Department of Labor (“DOL”) announced on September 18, 2013 that it would take a “place of celebration” approach with respect to ERISA, similar to that of the IRS.  The DOL stated that it intends to issue future guidance addressing the impact of this approach on specific provisions of ERISA and its regulations.

Check www.benefitsbryancave.com for updates regarding future guidance from the IRS and DOL.

C.        REQUIRED ANNUAL NOTICES

Plan sponsors should ensure that the required annual notices, if applicable, are sent to participants and beneficiaries on a timely basis.

  • Section 401(k) Safe Harbor Notice.  All participants in a safe harbor 401(k) plan must receive an annual notice that describes the safe harbor contribution and certain other plan features.  The notice must be given by December 1 for calendar year plans and for non-calendar year plans not fewer than 30, and not more than 90, days before the first day of the plan year.
  • Section 401(k) Automatic Enrollment Notice.  If the plan provides that employees will be automatically enrolled, the plan administrator must give eligible employees an annual notice that describes the circumstances in which eligible employees are automatically enrolled and pay will be automatically contributed to the plan.  The notice must be given by December 1 for calendar year plans and for non-calendar year plans not fewer than 30 days before the first day of the plan year.
  • Qualified Default Investment Notice.  A defined contribution plan that permits participants to direct the investment of their account balances may provide that if the participant does not give an affirmative investment direction, the portion of the account balance for which affirmative investment direction was not given will be invested in a qualified default investment.  Plan sponsors must give the annual notice by December 1 for calendar year plans and for non-calendar year plans at least 30 days prior to the beginning of the plan year.

NOTE:  A safe harbor 401(k) plan can incorporate two or more of the notices described above, as applicable, in a single notice.

  • Defined Benefit Plan Funding Notice.  An annual notice describing the plan’s funded status for the past two years, a statement of the plan’s assets and liabilities and certain other information relating to the plan’s funded status must be furnished to participants within 120 days after the end of the plan year.  For calendar year plans, the deadline is April 30.  The deadline for small plans that cover fewer than 100 participants is the due date for the plan’s Form 5500.
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