LIFETIME INCOME OPTIONS

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1 LIFETIME INCOME OPTIONS May 2011 by: Marca S. Wagner, Esq. The Wagner Law Group A Professonal Corporaton 99 Summer Street, 13 th Floor Boston, MA Tel: (617) Fax: (617)

2 TABLE OF CONTENTS Page I. LIFETIME INCOME OPTIONS... 1 A. DOL and IRS Request for Informaton... 1 B. The Retrement Securty Project... 1 C. Legslatve Proposals... 1 D. Tax Requrements... 2 E. Lfetme Income Hearng by Senate Specal Commttee on Agng... 2 F. Jont Hearng by DOL, IRS and Treasury n September

3 LIFETIME INCOME OPTIONS I. Lfetme Income Optons One of the key retrement securty goals of the Obama Admnstraton s to reduce barrers to annutzaton of 401(k) plan assets and promote guaranteed lfetme ncome products, whch transform at least a porton of retrees savngs nto guaranteed future ncome, reducng the rsks that retrees wll outlve ther savngs or that ther lvng standards wll be eroded by nvestment losses or nflaton. 1 A. DOL and IRS Request for Informaton. In connecton wth the Admnstraton s goals to promote DC plan annutzaton, the DOL, Internal Revenue Servce and the Treasury Department ssued a jont release on February 2, 2010, requestng nformaton regardng lfetme ncome optons for partcpants n retrement plans. In ths release, these agences announced that they were currently revewng the rules under ERISA and the related rules under the Internal Revenue Code, to determne whether and how they could enhance the retrement securty of partcpants by facltatng access to lfetme ncome arrangements. The requests for nformaton addressed a range of topcs, ncludng partcpant educaton, requred dsclosures, 401(k) plan and other tax-qualfcaton rules, selecton of annuty provders, ERISA Secton 404(c) and QDIAs. B. The Retrement Securty Project. The Retrement Securty Project, a jont venture of the Brookngs Insttuton and the Urban Insttute, has released two whte papers regardng DC plan annutzaton. These papers have generated a sgnfcant amount of nterest, gven the fact that they were co-authored by Mark Iwry, who was recently apponted by the Treasury Secretary to serve as the Deputy Assstant Secretary for Retrement and Health Polcy. The whte papers nclude proposals to encourage DC plan annutzaton by usng deferred annutes as the default nvestment for partcpants for certan purposes. C. Legslatve Proposals. A number of blls have been ntroduced n Congress, whch are desgned to provde tax ncentves to save for retrement through annutes (e.g., Lfetme Penson Annuty for You Act, Retrement Securty for Lfe Act). These blls typcally encourage annutzaton by exemptng a percentage of annuty ncome up to a stated threshold (e.g., $5,000 for ndvduals or $10,000 for couples). Although they typcally do not extend ths exempton to annuty payments from defned beneft plans, they do exempt annuty payments made from DC plans. In contrast to these tax-related measures, the Lfetme Income Dsclosure Act puts a dfferent spn on the subject of lfetme ncome and 401(k) plans. 2 Under ths proposed legslaton, 401(k) plan sponsors would be requred to nform partcpants annually of how ther account balances would translate nto guaranteed monthly payments a "retrement paycheck for 1 Annual Report of the Whte House Task Force on the Mddle Class, February U.S. Senators Jeff Bngaman (D-NM), Johnny Isakson (R-GA), and Herb Kohl (D-WI) ntroduced ths bll n December The Wagner Law Group Specalzng n ERISA, Employee Benefts, Executve Compensaton and Estate Plannng

4 lfe." The goal of ths legslaton s to gve partcpants an understandng of how much projected retrement ncome they can expect from ther savngs. The legslaton drects the DOL to ssue tables that employers may use n calculatng an annuty equvalent and model dsclosures. Employers and servce provders who use the model dsclosure and gudelne assumptons would be nsulated from lablty under ERISA. D. Tax Requrements. The IRS addressed varous tax-qualfcaton requrements for DC plans wth varable group annuty nvestment optons for partcpants n PLR Ths prvate letter rulng was helpful to the benefts communty snce t llustrated how these plans were vewed wth respect to the age 70 ½ mnmum dstrbuton requrements and for purposes of the QJSA rules. In sum, DC plans wth annuty nvestment optons were not subject to any surprse nterpretatons wth respect to these rules. E. Lfetme Income Hearng by Senate Specal Commttee on Agng. On June 16, 2010, the U.S. Senate Specal Commttee on Agng convened a hearng enttled, The Retrement Challenge: Makng Savngs Last a Lfetme. The hearng explored optons to help retrees transform ther retrement savngs nto lfetme ncome, takng a close look at 401(k) plan partcpants n partcular. Accordng to Senator Kohl, charman of the Senate Specal Commttee on Agng, the hearng was the start of a legslatve debate about how the government can help Amercans make ther retrement savngs last a lfetme. In hs openng statement, he stated that, [o]ur goal s to fnd ways to ensure retrees have access to lfetme ncome optons that provde adequate consumer protectons at a reasonable cost. In hs vew, the focus of most educaton efforts have been on encouragng people to save, and not about how to make ther savngs last. At the hearng, Phylls Borz (Assstant Secretary of Labor) and Mark Iwry (Deputy Assstant Secretary for Retrement and Health Polcy at the Treasury Department) presented ther early analyss of the responses they receved to the RFI on lfetme ncome optons, jontly released by the DOL, IRS and Treasury on February 2, The RFI attracted more than 780 responses from the publc. Many of the comments were submtted by ndvduals who sad they were worred that the RFI was the frst step n a government plan to take over 401(k) plans. However, Assstant Secretary Borz clarfed that the DOL and the Obama admnstraton had no ntenton of takng over workers 401(k) plans. She ndcated that the agences smply wanted to know f promotng lfetme ncome vehcles were a good dea, and, f so, f there were ways for the government to mprove access to them. These comments from the DOL were consstent wth Senator Kohl s openng statement, n whch he had also clarfed that he was n favor of makng lfetme ncome optons avalable at a far prce, and that he dd not advocate any type of mandate that would force people to purchase lfetme ncome products. The Wagner Law Group Specalzng n ERISA, Employee Benefts, Executve Compensaton and Estate Plannng 2

5 F. Jont Hearng by DOL, IRS and Treasury n September On September 14 th and September 15, 2010, the DOL, IRS and the Treasury Department held a 2-day jont hearng to consder the specfc ssues rased n the varous comments submtted by the publc n response to the RFI regardng lfetme ncome optons. 3 In contrast to the jontly released RFI on February 2, 2010, whch solcted comments on a broad array of topcs concernng lfetme ncome optons, the September hearng focused on 5 specfc areas of concern. They ncluded the followng 2 areas of general polcy-related nterest: Specfc Concerns Rased by Partcpants. Partcpants and partcpant representatve groups had expressed concern about lfetme ncome optons n general (e.g., nflaton rsk, product complexty and fees, the long-term vablty of ssuers of annuty products, lmted avalablty of death benefts and wthdrawal optons). The agences heard testmony explorng and addressng these concerns. Alternatve Desgns of In-Plan and Dstrbuton Lfetme Income Optons. The respectve agences were also nterested n explorng the dfferent ways n whch lfetme ncome optons can be made avalable n plans, ncludng both nsurance and non-nsurance desgn solutons (e.g., managed payout funds). The hearng also focused on the followng 3 areas of specfc nterest: Fosterng Educaton to Help Partcpants Make Informed Retrement Income Decsons. The agences were nterested n hearng about the type of nformaton that would help partcpants make better nformed decsons regardng ther retrement ncome. DOL Interpretve Bulletn 96-1 provdes gudance on how plan sponsors can provde nvestment educaton to partcpants wthout fducary lablty, and the DOL appears to be nterested n expandng t to cover retrement ncome educaton. Dsclosure of Account Balances as Monthly Income Streams. Along the lnes of varous legslatve proposals such as the Lfetme Income Dsclosure Act, the agences were nterested n hearng how partcpants may be more lkely to choose lfetme ncome optons f ther beneft statements were to nclude dsclosures notng what ther ndvdual accounts are worth when converted to a hypothetcal monthly beneft. 3 The agency representatves nvolved n coordnatng the hearng nclude () Mark Iwry, Senor Advsor to the Secretary, Deputy Assstant Secretary for Retrement and Health Benefts, Department of the Treasury, () Nancy Marks, Dvson Counsel/Assocate Chef Counsel, Tax Exempt and Government Enttes, IRS, and () Phylls Borz, Assstant Secretary, EBSA, DOL. The Wagner Law Group Specalzng n ERISA, Employee Benefts, Executve Compensaton and Estate Plannng 3

6 Modfyng Fducary Safe Harbor for Selecton of Issuer or Product. Under current law, a DOL regulatory safe harbor provdes gudelnes on how a plan fducary can prudently select an annuty provder for ts DC plan. 4 Ths safe harbor s largely procedural, requrng an objectve, analytcal search for an annuty provder, n consultaton wth an expert as necessary. The agences heard testmony on whether these safe harbor standards should be modfed, and whether they should apply more broadly to other types of lfetme ncome products. Gven the specfcty of these 3 areas, t appears that the DOL and Treasury Department (and IRS) have narrowed ther areas of focus, whch could sgnal that these agences are preparng to move ahead wth rulemakng n these areas. {K:/99995/A } 4 29 CFR a-4. The Wagner Law Group Specalzng n ERISA, Employee Benefts, Executve Compensaton and Estate Plannng 4

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