Plan Facts. Supreme Court Confirms Ongoing Fiduciary Duty to Monitor Plan Fees

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1 Plan Facts September 2015 newsletter Supreme Court Confirms Ongoing Fiduciary Duty to Monitor Plan Fees A plan sponsor s fiduciary duties under the Employee Retirement Income Security Act (ERISA) include ensuring that only reasonable fees are paid from plan assets for plan services and investments. In recent years, the Department of Labor s (DOL) fee disclosure initiative has focused considerable attention on the plan sponsor s fiduciary obligation to monitor plan fees. Lawsuits alleging excessive fees in retirement plans have also drawn considerable attention to this important fiduciary principle. One of those cases, Tibble v. Edison, made it all the way to the U.S. Supreme Court CONTENTS Supreme Court Confirms Ongoing Fiduciary Duty to Monitor Plan Fees Time to Talk Safe Harbor 401(k) Plan Design In this case, the Ninth Circuit Court of Appeals affirmed a judgment in favor of the participants who claimed it was imprudent for the plan fiduciaries to select higher priced retail mutual fund share classes for the plan when comparable lower priced institutional share classes were an option. Both the district and the appellate court agreed that the choice of investments was imprudent, and awarded damages. However, the court awarded damages based only on the investments that had been added to the plan investment menu within the applicable six-year statute of limitations under ERISA. The participants appealed the case to the Supreme Court challenging the appellate court s limitation of damages to only the investments that had been added to the plan within the six years before the lawsuit was filed. The participants argued that plan fiduciaries had an ongoing duty to monitor all investments and that it was imprudent to continue offering retail share classes when lower cost institutional share classes were available, regardless of when the investments had initially been selected for the plan. In its decision, the Supreme Court applied trust law principles to recognize a fiduciary s continuing duty to monitor and remove imprudent investments. The Supreme Court did not describe the scope of review that a fiduciary would have to perform, stating that the nature and timing of the review would vary depending upon the circumstances. The case was remanded to the Ninth Circuit to determine whether there was a breach within the six-year statute of limitations period, recognizing the continuing duty to monitor all investments and remove imprudent investments. Bell Solution: This case emphasizes the importance of having a process in place for monitoring plan investments and expenses on a regular basis. Your relationship manager can help you design prudent processes for selecting and monitoring plan investments, including maintaining records to document the actions taken to comply with this fiduciary duty. If you have questions about the steps involved in administering a change in your plan s investment options, contact your Bell relationship manager at A Primer on Cross-Tested Profit Sharing Contributions PLAN DEADLINES October 15, 2015 Filing deadline for Form 5500 (after filing Form 5558, requesting an extension). November 1-30, 2015 Bell State Bank & Trust to provide annual participant fee disclosure documentation to clients bellbanks.com/wealth A division of Bell State Bank & Trust Not FDIC insured May lose value Not financial institution guaranteed Not a deposit Not insured by federal government agency Page 1

2 Time to Talk Safe Harbor 401(k) Plan Design Business owners and other highly compensated employees (HCEs) may be limited as to how much they can contribute to their retirement savings unless rank-and-file employees are actively participating in the 401(k) plan. If your 401(k) plan mid-year testing results indicate that your plan will be at risk for failing compliance testing at year-end, now is a great time to start thinking about whether you want to adjust your plan design features to produce more positive compliance testing results next year. It s important to begin the plan design and document amendment process now to ensure that the timing requirements for certain plan features, such as a safe harbor 401(k) plan feature, are met. The safe harbor 401(k) plan design is popular with plans that have had to limit the amounts their HCEs can contribute because of the two special nondiscrimination tests for 401(k) plans: Business owners and other highly compensated employees (HCEs) may be limited as to how much they can contribute to their retirement savings unless rank-and-file employees are actively participating in the 401(k) plan. The Actual Deferral Percentage (ADP) Test The ADP test limits the percentage of compensation HCEs can defer into the plan to a multiple or a percentage of the average deferral rate of the non-highly compensated employees (non-hces). 1 The Actual Contribution Percentage (ACP) Test The ACP test ensures that the employer contributions and after-tax employee contributions contributed for HCEs are not disproportionately higher than those for non-hces. 2 If a plan fails either test, the plan sponsor must take corrective actions such as returning deferrals to HCEs or making additional employer contributions for non-hces. Congress created a design-based safe harbor for plans that have difficulty passing the ADP/ ACP tests. Under this approach, the plan is deemed to satisfy the ADP/ACP requirements so long as the plan includes certain features, including a required employer contribution. 3 Under a safe harbor 401(k) plan, the higher paid employees can maximize their salary deferrals without worrying about the contribution rate of the lower-paid employees. Another benefit is that the safe harbor contributions may count toward satisfying the top-heavy contribution when key employees own more than 60% of the plan assets. Under a safe harbor 401(k) plan, the higher paid employees can maximize their salary deferrals without worrying about the contribution rate of the lower-paid employees. continued on next page Page 2

3 Time to Talk Safe Harbor 401(k) Plan Design (Continued) Required Employer Contributions In exchange for bypassing the ADP test, a plan sponsor must make a basic or enhanced matching contribution or a nonelective contribution that meets the following requirements: ADP Test Safe Harbor Basic matching contribution 4 Enhanced matching contribution 4 Nonelective contribution 5 100% match on deferrals that do not exceed 3% of compensation, plus 50% match on deferrals that exceed 3% of compensation but do not exceed 5% of compensation Matching contribution for any HCE cannot be greater than any non-hce match at the same deferral rate Must equal or exceed basic match at any rate of deferrals (e.g., 100% on first 4% of compensation deferred) May not increase match as rate of deferrals increases Matching contribution for any HCE cannot be greater than any non-hce match at the same deferral rate 3% contribution for all eligible employees regardless of whether they make deferrals In exchange for bypassing the ACP test, a plan sponsor must satisfy an ADP safe harbor option and meet the following requirements if any non-safe harbor matching contribution is made: ACP Test Safe Harbor No matching contributions can be made with respect to deferrals that exceed 6% of compensation Discretionary matching contributions cannot exceed 4% of compensation Matching contributions cannot increase as rate of deferrals increases Permitted disparity allocation method may not be used with safe harbor contributions In exchange for bypassing the ADP test, a plan sponsor must make a basic or enhanced matching contribution or a nonelective contribution that meets certain requirements. Safe harbor contributions must be 100% vested and are subject to the same distribution restrictions that apply to employee deferrals. 6 Safe harbor contributions must be 100% vested and are subject to the same distribution restrictions that apply to employee deferrals. 6 continued on next page Page 3

4 Time to Talk Safe Harbor 401(k) Plan Design (Continued) Timing Requirements The 401(k) safe harbor feature must be selected in the plan document. Adding the feature to an existing plan requires a written plan amendment, which must meet specific timing requirements. Plan Amendment Timing 7 Existing 401(k) plan New 401(k) plan or existing plan that is not a 401(k) plan Must adopt safe harbor feature before the first day of the plan year and plan must remain in effect for a 12-month plan year May adopt safe harbor feature mid-year if the plan is properly amended and the deferral option is available for at least 3 months before the end of the plan year In addition to amending the plan document, plan sponsors must inform their employees about the safe harbor plan features before the start of the plan year so the employees understand the plan features and know whether the employer contribution will be conditioned upon the deferrals they make into the plan. Bell Solution: Although a safe harbor plan can provide significant benefits, it may not be right for every plan. Contact your Bell relationship manager at if you are interested in learning more about how the safe harbor 401(k) plan design could benefit your plan. We can also help create projections that illustrate the potential costs associated with safe harbor matching and nonelective contributions based on your plan demographics. Employee Notice Timing 8 Initial adoption notice New employee notice Annual notice No more than 90 days before the beginning of the plan year and no later than the date the employee becomes eligible No more than 90 days before satisfying eligibility requirements and no later than the date the employee becomes eligible Within a reasonable time (e.g., days) before the beginning of the plan year, even if no plan features have changed 1 Internal Revenue Code Section 401(k)(3) 2 IRC Sec. 401(m)(2) 3 IRC Sec. 401(k)(12), 401(m)(11) 4 Treasury Regulation 1.401(k)-3(c) 5 Treasury Regulation 1.401(k)-3(b) 6 IRC Sec. 401(k)(12)(E) 7 Treasury Regulation 1.401(k)-3(e)(1), 1.401(m)-3(f)(1) 8 Treasury Regulation 1.401(k)-3(d)(3) Page 4

5 A Primer on Cross-Tested Profit Sharing Contributions Most employers who sponsor 401(k) plans focus on employee salary deferrals and employer matching contributions. Employers who are trying to maximize the savings potential of their 401(k) plan may want to pay closer attention to profit sharing contributions. There are a number of allocation methods that can help plan sponsors reward the business owner and senior management employees with a larger share of the profit sharing contribution. Unlike matching contributions, profit sharing contributions are not conditioned on the employee s decision to make elective deferrals or designated Roth contributions. Separate and distinct eligibility requirements and allocation conditions can be selected in the plan document for profit sharing contributions. Employers who are trying to maximize the savings potential of their 401(k) plan may want to pay closer attention to profit sharing contributions. One of the appealing features of a profit sharing contribution is that it can be designed to be discretionary, giving the plan sponsor flexibility to choose each year whether or not to make a profit sharing contribution, and how much to contribute. The plan sponsor may take a tax deduction for employer contributions made to the plan up to 25% of employee compensation. The amount contributed to the plan as a profit sharing contribution is allocated to eligible participants depending on the allocation formula chosen by the plan sponsor in the plan document. Nondiscrimination Principles of Cross-Testing Nondiscrimination rules require that profit sharing allocations not discriminate in favor of highly compensated employees. However, there are allocation formulas that can help plan sponsors reward the business owner, older employees, or other types of employees with a larger share of the profit sharing contribution by applying cross-testing principles. The cross-tested formulas convert current-year contributions to a defined benefit accrual rate using either the new comparability or age-weighted methodology. 1 These formulas may enable plan sponsors to make larger contributions for owners and certain key employees if they are older and closer to retirement because older employees have less time for contributions to grow to the plan s chosen defined benefit accrual rate. The allocations must satisfy nondiscrimination testing based on the value of the benefits at retirement (similar to a defined benefit plan) rather than the value of the contribution today. Nondiscrimination rules require that profit sharing allocations not discriminate in favor of highly compensated employees. continued on next page Page 5

6 A Primer on Cross-Tested Profit Sharing Contributions (Continued) Cross-Tested Allocation Methods Age-Weighted New Comparability This formula allocates a greater portion of the profit sharing contribution to older employees by assigning to each participant an age-weighted factor, which is an actuarial factor based on their age Contributions are allocated pro rata based on each participant s age-weighted factor (in comparison to all participants) Employees are divided into groups, as defined in the plan document, which may be based on business ownership, job title, employee type, etc. A different allocation rate may be assigned to each group Nondiscrimination testing must be performed for each group Typically the plan must make a minimum contribution for nonhighly compensated employees that passes the gateway test Bell Solution: If you want to review the profit sharing allocation method your plan currently uses or explore alternative age-weighted or new comparability methods that may drive a larger share of your profit sharing contribution to certain groups of employees, contact your Bell relationship manager at Treasury Regulation 1.401(a)(4)-8 The information contained herein is for informational purposes only and does not constitute legal or tax advice. Contact a tax or legal professional prior to taking any action based upon this information. The information contained herein is based on authorities that are subject to change and is provided on an as is basis without warranty of any kind. Bell State Bank & Trust does not assume any liability for any errors, omissions or damages resulting from the use of the information. This document may not be reproduced or distributed in any form or by any means without Bell State Bank & Trust s written permission. Not FDIC insured May lose value Not financial institution guaranteed Not a deposit Not insured by federal government agency Page 6