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EisnerAmper Blog

The Compensation and Benefits Blog

Late Remittances CONTINUE to be a Problem

(Defined Contribution Plans) Permanent link

January 8, 2015

DeAngelo, KristeBy: Kriste Naples-DeAngelo, CPA, MBA

Late remittances of employee contributions to retirement plans continue to be an ongoing issue for Plan Sponsors.  The general rule is that amounts that a participant pays to their employer or which has been withheld from their pay, must be contributed to the plan on the earliest date that those contributions can be reasonably segregated from the employer’s general assets.
 
For instance, most employers routinely submit payroll taxes withheld from employee paychecks as early as 1-2 business days or even the same day. The Department of Labor (DOL) has taken the position that if the payroll taxes can be remitted in that timeframe, so should retirement plan contributions.

What continues to confuse many Plan Sponsors is that this general rule also says that the maximum time period for transmitting these employee contributions shall in no event be later than the 15th business day of the month following the month in which the participant contributions are received by the employer. THIS IS NOT A SAFE HARBOR and therein lies the confusion.

When contributions are remitted beyond the “reasonable” timeframe, this is considered to be a prohibited transaction, which must be reported on Form 5500 and also in the Plan’s financial statements. Plan Sponsors should take this very seriously, since the DOL views this as a loan to the employer from the plan.

To correct a late remittance, the Plan Sponsor is required to make the affected participants’ accounts whole and put in the position as if the remittance was timely.  Therefore, the Plan Sponsor must provide the plan with lost interest. The interest amount may be calculated using an on line calculator provided on the DOL website.   This calculation can be extremely burdensome and take a considerable amount of time if there are several remittances that are considered to be remitted beyond the “reasonable” time period.  The result often times is a very small amount.  Nonetheless, there is no material or minimum amount whereby a correction would not be appropriate. 

My recommendation to Plan Sponsors is to document your remittance process and determine the earliest date that you believe these contributions can be reasonably segregated from the general assets. Then, most importantly, ensure that you follow what you documented.  I also recommend checking the remittance dates throughout the year to ensure that you are meeting your documented expectations. Remember…anything outside your expected timeframe may be considered a late remittance by the DOL and should be voluntarily corrected.

 

Annuities in 401(k) Plans?

(Defined Contribution Plans) Permanent link

November 25, 2014

By Diane Wasser, CPA

Wasser_DianeThe number of baby boomers retiring over the next several years is mind boggling.  The amount of retirement plan distributions related to such retirements, along with the number of people that will be living on retirement income, is equally mind boggling!  Therefore, an annuity distribution option in a 401(k) plan is an interesting thought.  Historically, such an option in a defined contribution plan was rarely a subject of discussion. 

Due to recent action, however, we may see many plans offering an annuity distribution option in cases where the plan document provides for automatic enrollment.  Specifically, the U.S. Treasury Department recently issued guidelines to encourage annuities in 401(k) plans.  The guidance is in Notice 2014-66, and notes plan sponsors can include deferred income annuities in target date funds that are used as a default investment and that such can be done in a manner that complies with plan qualification rules.  This even can be accomplished, according to the Notice, if such is available only to older participants.

Essentially, this offers participants an option that reduces the risk that they outlive their retirement benefits, which is a concern of many given the rises in life expectancy and the uncertainty of the markets.  It is certainly an interesting concept--I think we will be hearing more and more about the specific aspects of such a plan provision.

When Does a Benefit Plan Have to File with the SEC?

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November 14, 2014

By Denise Finney, CPA

Finney_DeniseDoes your defined contribution plan offer employer securities as an investment option?  If so, the plan may be subject to additional filing requirements with the Securities and Exchange Commission (“SEC”).  In general, if employees are given the option to acquire employer securities with their own contributions, additional filings are required with the SEC.  

Form S-8, a registration statement under the Securities Act of 1933, should be filed by the employer to register the employer securities to be acquired under the defined contribution plan.  Form S-8 is updated each year by filing Form 11-K.  Annual reporting on Form 11-K requires an audit in accordance with Public Company Accounting Oversight Board (“PCAOB”) standards.

Plan sponsors should consider the additional SEC requirements in conjunction with their reporting requirements under Form 5500 with the Department of Labor (“DOL”) and Internal Revenue Service, as shown below. 

  SEC Requirements DOL Requirements
Audit Opinion Must not reference GAAS*
Must reference PCAOB
Must Reference GAAS*
Scope of Audit Full scope audit required Limited or full scope audit may
be acceptable
Return due dates
(for 12/31/14 plan year)
Form 11-K due 180 days after
year-end (6/29/15)
Form 5500 due 7 months after
year-end (7/31/15), extended
another 2 1/2 months (10/15/15)

 

  * GAAS refers to Generally Accepted Auditing Standards

Because of the differences noted above, sponsors of plans requiring SEC reporting will routinely hire an independent public accounting firm to perform a full scope audit, and prepare two separate audit opinions with a target audit completion date of the end of June. 

Tax-Deferred Stock Rights for Offshore Funds

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October 15, 2014

By Peter Alwardt, CPA

Alwardt_PeterUnder Revenue Ruling 2014-18, the IRS has clarified that offshore funds (and other nonqualified entities under Section 457A) may issue nonqualified stock options and stock-settled Stock Appreciation Rights (SAR) without triggering taxation under Section 457A. Prior to this ruling, certain deferred compensation was includible as taxable income of an employee or service provider. This discouraged U.S. based fund managers and service providers from deferring incentive fees from their offshore funds.

The ruling provides a clear fact pattern for a service provider to receive incentive fees on a tax-deferred basis utilizing stock options or stock settled SARs. For more details on the revenue ruling and its impact on compensation from offshore funds, please visit our recent benefits alert here.

Are Your TPAs Booking Journal Entries to Your Plan? Are You Sure?

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September 19, 2014

By Diane Wasser, CPA

Wasser_DianeAs you know, plan sponsors of qualified employee benefit plans are responsible for maintaining and accurately reporting plan activity in order to ultimately provide benefits due to participants. In addition, the processing of the majority of transactions for employee benefit plans is outsourced to third party administrators (TPAs). As part of the oversight of outsourced activities, it is increasingly important to communicate with third party record keepers and custodians regarding any journal entries made to the plan's records. Journal entries in this case can be defined as any adjustment made to originally processed participant-level transaction activity. Third parties collect contributions and allocate them to participant accounts, process distribution and transfer requests, allocate expenses paid from the plan, process loans and allocate investment activity for transactions initiated by participants -- all constituting participant-level transaction activity. Therefore, any adjustments to such originally processed activity are meaningful to plan management and, as part of plan oversight, should be understood and reviewed as necessary.

Pension Funding Relief

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September 4, 2014

 

By Peter Alwardt, CPA

Alwardt_PeterIn 2012, the Moving Ahead for Progress in the 21st Century Act (MAP-21) allowed sponsors of defined benefit plans to smooth out their minimum funding requirements. The initial act provided for a 10% funding stabilization corridor, which would reach 30% by 2016. Under the Highway Transportation and Funding Act of 2014 (the Act) which Congress passed and President Obama is expected to sign into law, the corridor will be extended until 2017.

The net effect of this change is to reduce the required minimum contributions for many defined benefit plans for plan years beginning in 2013 through 2017. If your plan has already had the actuary calculations prepared for 2013, you may elect to apply the new corridor beginning in 2014, so as not to have to redo all of the 2013 valuation work. Certain disclosure requirements have also been extended.

While plan sponsors may be relieved by the reduced funding obligations, be aware of higher contributions required when the funding stabilization corridor expires at the end of plan years beginning in 2017. For more details on the extension and its effect on plan sponsors, please visit our recent benefits alert titled Pension Funding Relief Under MAP-21 to be Extended Until 2017

408(b)(2) Disclosure Guides

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August 12, 2014
By Brenda DeSaro, CPA

DeSaro_BrendaAre you ready to go on a treasure hunt?!?  We are not looking for diamonds, gold or rubies. . .  No, we are looking for details necessary to fulfill the 408(b)(2) fee disclosures.  Are you able to find everything you need to satisfy those 408(b)(2) regulations?  Are you having problems complying with the regulations?  Do you need a map to find all of the disclosures?  Well you are not alone; there may be something in the future to help.

On March 12, 2014 the Department of Labor (“DOL”) proposed a regulation to require a guide (I like to refer to it as a “treasure map”) to assist plan fiduciaries in reviewing 408(b)(2) disclosures. 

The DOL has expressed concern that small plan fiduciaries may be having trouble locating the required details needed to assess the following:  1) if the amounts paid to service providers are reasonable and 2) identify any related parties involved.  These areas are just a few required in order to comply with their fiduciary obligation.  Out of this concern, the March proposal was released.

The proposal suggests a new section to the 408(b)(2) regulations “section 2550.408b-2(c)(1)(iv)(H), Guide to Initial Disclosures.”  Here are some of the highlights in the new section:

  1. The guide may NOT be needed if all of the required items are covered in a single document that does not exceed a certain number of pages.  The DOL has not defined what that magic number of pages will be, but is seeking comments of what would be an acceptable amount.
  2. In the 408(b)(2) regulations, there are covered disclosures that must be communicated to the plan fiduciary.  In the DOL fact sheet, they are listed as:
    • “The description of services to be provided;
    • The statement concerning services to be provided as a fiduciary and/or as a registered adviser;
    • The description of: all direct and indirect compensation, any compensation that will be paid among related parties, compensation for termination of the contract or arrangement, as well as compensation for recordkeeping services;
    • The required investment disclosures for fiduciary services and recordkeeping and brokerage services, including annual operating expenses and ongoing expenses, or if applicable, total annual operating expenses.”
  3. The treasure map needs to identify where to find all the covered disclosures in the other documents.  This guide must list each covered disclosure, which document it is in by title, then page number and section if given.
  4. The guide must be a separate document given with the initial required disclosures.
  5. Any updates or revisions to the guide must be given at least annually.

Remember: At this time, this is just a proposal and not yet in effect.  However, from this proposal, we can see the DOL wants to make it easier for plan sponsors to be able to find the proper disclosure documents.

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