THE KEY TO THE UNCASHED CHECKS DILEMMA: AUTOMATIC ROLLOVER IRAs OVERVIEW When an employee retires or terminates employment, he is generally entitled to a distribution of his retirement account from the employer-sponsored retirement plan. Many plan distribution checks are not received or acknowledged by the former employee (for a variety of reasons). These uncashed checks represent plan assets and are consequently an ongoing burden for plan sponsors. Uncashed checks from employer-sponsored retirement accounts increase plan costs, complicate plan administration and prevent fiduciary responsibilities from being fulfilled. Automatic rollover IRAs provide a simple, effective solution to this problem. These plan assets, uncashed checks, that meet specific criteria can be rolled over into IRAs under regulations put in place by the U.S. Department of Labor ( DOL ). This White Paper details why uncashed checks have become a problem for plan sponsors, how widespread the problem is, how the problem can affect plan sponsors and how automatic rollover IRAs are the best solution to the problem, all based on guidance and rulings from the DOL, with respect to the Employee Retirement Income Security Act of 1974 ( ERISA ) and the Internal Revenue Service ( IRS ) with respect to the Internal Revenue Code ( Code ). The material in this whitepaper is presented for informational purposes only. The information presented is not legal, tax, investment, or compliance advice. No action should be taken regarding any legal, tax, investment, or compliance issue without consulting an appropriate advisor. Millennium Trust Company acts only as a directed custodian and does not offer tax, legal, investment, or compliance advice.
SUMMARY OF CONCLUSIONS Causes and prevalence of uncashed checks Trends regarding length of employment, retirement plan automatic enrollment and mandatory distributions all contribute to the problem of uncashed checks. The problem of uncashed checks is extensive, and continues to grow. Issues created by uncashed checks Uncashed checks remain plan assets, adding to administration costs. Plan sponsors remain responsible for these assets until they are claimed by the appropriate participant or beneficiary. Forfeiture and escheatment of plan assets may not be options. Uncashed checks can cause tax compliance issues and complications. Benefits of automatic rollover IRAs Utilizing an automatic rollover IRA for unclaimed plan assets satisfies fiduciary responsibilities. IRA custodians will attempt to reunite retirement plan participants with their funds. Plan sponsors no longer have to administer or monitor unclaimed plan assets. INTRODUCTION Statistics show that retirement plan participants are leaving mandatory distribution checks uncashed, resulting in a loss of funds on their part, as well as serious complications for plan sponsors. CONTENTS 02...Summary of Conclusions 02...Introduction 03...Causes of Uncashed Checks 04... Prevalence of Uncashed Checks 04... Problems Associated with Uncashed Checks 06... Automatic Rollover IRAs are the Best Solution 07...Conclusion 08...References are not able to use and also represents serious issues for fiduciaries. Plan sponsors often spend considerable time and resources trying to resolve this issue. Uncashed checks can also cause a problem for plan recordkeepers or other service providers if a plan is audited, as the rules under ERISA call for plan sponsors to do their best to make sure participants receive these funds. Failure to do so can result in hefty fines, and even lawsuits. Additionally, uncashed checks can raise issues with the IRS and other agencies regarding taxes, escheatment and unclaimed property. However, as chronic and severe as the problem of uncashed checks is, there is an effective solution: automatic rollover IRAs. Uncashed checks are a real problem for retirement plan sponsors and this problem continues to grow. It is estimated that uncashed checks account for billions of dollars. This represents a fortune of uncollected funds belonging to plan participants or beneficiaries that they 2 THE KEY TO THE UNCASHED CHECKS DILEMMA: AUTOMATIC ROLLOVER IRAs
Young people switch jobs more often... The median tenure of younger workers was three times lower than that of older workers...and they now makeup the largest part of the U.S. workforce U.S. labor force by generation, 1995-2015 (in Millions) TENURES IN YEARS 12 10 8 6 4 3 YRS. 10.4 YRS. 70 60 50 40 30 20 SILENTS BOOMERS GEN Xers MILLENNIALS 53.5 52.7 44.6 2 0 Millennials Ages 25-34 Source: Bureau of Labor Statistics, as of January 2014 CAUSES OF UNCASHED CHECKS Most uncashed checks are the result of plan participants not realizing they have money owed to them. This is compounded by difficulties encountered by plan sponsors and plan service providers in maintaining records and communications with participants, many of whom change jobs frequently and are perhaps not aware of these benefits. According to the Bureau of Labor Statistics, as of January 2014, the median tenure of younger workers (ages 25 to 34) was three times lower than that of workers ages 55 to 64, at 3 years and 10.4 years respectively. 1 And this younger age group, often referred to as the Millennials (ages 18 to 34), now makes up the largest portion of the workforce according to Pew Research and the U.S. Census Bureau. 2 Boomers Ages 55-64 With a greater number of U.S. workers switching employers on a more regular basis, it s becoming increasingly difficult for plan sponsors to keep track of former employees and stay current on their personal information, such as addresses. This often results in checks being mailed to the wrong person or being returned by the U.S. Postal Service. Even if a plan participant has not moved away, plan records are not 10 3.7 0 1995 2000 2005 2010 2013 2015 Q1 Note: Annual averages plotted 1995-2014. For 2015 the first quarter average of 2015 is shown. Due to data limitations, Silent generation is overestimated from 2008-2015. Source: Pew Research Center tabulations of monthly 1995-2015 Current Population Surveys, Integrated Public Use Microdata Series (IPUMS) easy to keep current. For instance, if a former employee passes away and a plan sponsor is not informed, a check can continue to go uncashed indefinitely unless a relative or beneficiary contacts the plan sponsor. Many employers now automatically enroll their employees in retirement benefit programs which has also led to a rise in uncashed checks. This means that an even greater number of workers may have retirement benefits but not be aware of their rights or responsibilities under those accounts. Additionally, even if a worker is aware of these benefits, the IRS does not require them to request distributions under $1,000 for checks to be mailed. 3 Internal Revenue Code Section 411(a)(11) states:...a participant must consent to the distribution of an accrued benefit if the present value of that benefit exceeds a certain amount. This means plans may automatically distribute amounts less than $1,000 without the participant making a request. Automatic enrollment and automatic distributions further complicate and add to the growing problem of uncashed checks. MILLENNIUM TRUST COMPANY 3
PREVALENCE OF UNCASHED CHECKS With uncashed checks being described as a billion dollar dilemma, it s clear that the issue isn t only affecting a handful of plan participants. One study which tracked 11 million records for corporations, mutual funds, brokerages, and securities holders, found hundreds of thousands of inaccuracies and inconsistencies among basic worker information, such as social security numbers and addresses. 4 This same study also found that a quarter of a million of the records belonged to workers who had died. Even though 15% of this number had been dead for more than a decade and 43% were dead for more than five years, mail was still being sent to their addresses. These figures show how likely it is for plan sponsors to lose track of plan participants, adding to the uncashed check dilemma....a quarter of a million of the records belonged to workers who had died. Even though 15% of this number had been dead for more than a decade and 43% were dead for more than five years... PROBLEMS ASSOCIATED WITH UNCASHED CHECKS While there are numerous issues that uncashed checks can cause for plan sponsors, the most important may be that uncashed checks are classified as plan assets until claimed by plan participants; plan sponsors retain fiduciary liability for these plan assets. In 1993, the DOL outlined its position regarding float situations, the act of plan sponsors or their agents earning interest on uncashed checks, in an advisory letter to a Tennessee bank. 5 Turning to an analysis of the issues presented, section 406(b)(1) of ERISA states that a fiduciary with respect to a plan shall not deal with the assets of the plan in his or her own interest or for his or her own account, the letter stated. Section 3(21)(A) of ERISA defines a fiduciary, in part, as one who exercises any discretionary authority with respect to the assets of a plan. The DOL states that the use of benefit distribution checks by a plan fiduciary or service provider to earn float, would be a prohibited transaction precisely because benefit distribution checks constitute plan assets. This is vital information for two reasons. First, it makes it clear that uncashed checks are considered plan assets by both the DOL and ERISA. Second, it shows that plan sponsors are prohibited from handling these assets in such a way as to benefit themselves, which qualifies as self-dealing a breach of fiduciary duty. Yet, while unclaimed plan assets can t be used to benefit plan sponsors, they do often increase plan costs. The administration of these assets costs money, and as long as they remain unclaimed, the plan or plan sponsors are responsible for maintaining the assets and paying the administrative expenses. While forfeiture of participant accounts may be an option for plans that specifically allow it, the plan sponsor must follow reporting procedures relating to forfeitures and remains responsible for repayment of forfeited amounts, if required. Additionally, the DOL has stated that escheatment should not be an option for plan sponsors except as a possible solution if IRAs are not chosen by a plan sponsor for non-responsive participants in plans that are to be terminated. Even in states that feature unclaimed property statutes calling for escheatment, the preemption provisions of section 514(a) of ERISA generally take precedence over these state laws and require the plan sponsor to remain responsible. 6 4 THE KEY TO THE UNCASHED CHECKS DILEMMA: AUTOMATIC ROLLOVER IRAs
It is the view of the DOL that if the Texas Unclaimed Property Statutes were applied to require the Plan to pay to the State amounts held in the Terminated Employees Account, or in other accounts of the Plan, pursuant to the procedures described above, then such application of the section would be preempted under section 514(a) of ERISA, the DOL stated in an advisory letter regarding unclaimed property statutes in Texas. Such an application of the State escheat law would directly affect the core functions of the Plan by reducing, through the escheat, the amount of plan assets held in trust for the benefit of all participants and beneficiaries of the Plan. Moreover, because the statute at issue is not a law regulating insurance, banking or securities, it is not saved from preemption under section 514(b)(2). Furthermore, the Internal Revenue Service (IRS) has specific procedures in place for plan sponsors regarding reporting and withholding. In the case of uncashed checks, these rules can become complicated, especially in cases where funds are restored to an employee s retirement account, which requires withholding also to be restored. Restoring withholding amounts often creates problems for the plan sponsor and their service providers/recordkeepers. In order to remain in compliance with the IRS, accurate records must be maintained and be available to all affected parties. Also, if distribution amounts are returned back to a participant s account, this means changes will have to be made to the relevant tax forms used to document the original distributions. In this case, that includes Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc. 7 According to the IRS, this form must be filed for each person to whom you have made a designated distribution or are treated as having made a distribution of $10 or more from profitsharing or retirement plans, any individual retirement arrangements (IRAs), annuities, pensions, insurance contracts, survivor income benefit plans, permanent and...to follow best practices as outlined by the DOL, plan sponsors should return uncashed checks to the plan after no less than 90 days but no more than 180 days. total disability payments under life insurance contracts, charitable gift annuities, etc. The IRS asks that plan sponsors issue an updated Form 1099-R as quickly as possible if corrections need to be made regarding distribution and withholding on the original form. The DOL has also made it clear that plan sponsors have a responsibility to enact provisions in plan documents and service agreements that provide guidance on how to handle uncashed checks, as well as specific procedures and timeframes intended to return funds back to a plan as quickly as possible. This means plan sponsors should have regular reports on distributions, as well as focus on reinstating funds when a distribution check has remained outstanding for a predetermined period of time. According to the EBSA s Field Assistance Bulletin 2014-01, in order to follow best practices as outlined by the DOL, plan sponsors should return uncashed checks back to the plan after no less than 90 days but no more than 180 days. Plan sponsors who fail to resolve the issues of uncashed checks can also find themselves being fined by the DOL, or facing lawsuits from plan participants who are unhappy with how their retirement benefits were handled. The last thing any plan sponsor wants is for these claims to escalate into a class action lawsuit. MILLENNIUM TRUST COMPANY 5
AUTOMATIC ROLLOVER IRAs ARE THE BEST SOLUTION According to the DOL, if an uncashed check is unclaimed by a plan participant, the funds remain plan assets. However, when applicable, these funds can be rolled into an IRA in the name of the participant or their beneficiary. According to final rules issued by the DOL, plan sponsors will be deemed to have satisfied [their] fiduciary responsibilities in connection with automatic rollovers of certain mandatory distributions to individual retirement plans if the requirements set forth in the rules are satisfied. A summary indicates that the DOL s final rule 8 establishes conditions under which a fiduciary will be deemed to satisfy the fiduciary obligations under section 404(a) of ERISA in connection with the automatic rollover of a vested accrued benefit distribution of $5,000 or less, as described in amended Code section 401(a)(31)(B), and certain other distributions described in section 411(a)(11) of the Code and not described in section 401(a)(31)(B). This means that plan sponsors who consider participants to be missing or non-responsive can take advantage of automatic rollover IRAs if a participant s balance is $5,000 or less and they meet the DOL s safe harbor requirements. The safe harbor requirements include: The rollover amount cannot be more than $5,000, unless from a terminating defined contribution plan. The account balance must be rolled over to an entity authorized by the IRS to act as an IRA custodian, such as a trust company, bank, credit union or registered mutual fund. The rolled over money must be invested in a product that meets requirements relating to preserving principal and providing a reasonable rate of return and liquidity. The fees and expenses for the IRA cannot be more than the fees and expenses the IRA provider charges for similar, non-automatic rollover IRAs. The participant must have the power to enforce the terms of the IRA. As noted, automatic rollover IRAs can also be used for larger account balances if the distribution is part of a terminating defined contribution plan. Pursuant to authorized rollover procedures, the custodians will open an IRA in the name of the plan participant and invest the funds in investments that are intended to minimize risk, preserve the principal, maintain liquidity and give a reasonable rate of return. These investments include money market funds, interest-bearing savings accounts, certificates of deposit, and stable-value products. Not only is this in line with the DOL s guidance on rollover IRAs, it also follows the DOL s recommendations regarding fiduciary responsibilities. Most IRA custodians will take multiple steps to locate the participant to reunite them with their newly created account, conducting research in an attempt to locate and notify the appropriate parties. For instance, at Millennium Trust Company, a plan participant will be considered missing if: Address information is not included in the files received from the plan sponsor. The address provided by the plan is different from U.S. Post Office National Change of Address (NCOA) records and the participant remains unresponsive to outreach at the NCOA identified address. Communications such as Welcome Kits or tax forms sent by Millennium Trust are returned by the U.S. Postal System because the address is invalid or the individual no longer lives at the address given. 6 THE KEY TO THE UNCASHED CHECKS DILEMMA: AUTOMATIC ROLLOVER IRAs
The initial search for missing plan participants is conducted to provide Millennium with the most updated address information available. Afterward, a notice is mailed to new accountholders with instructions on how to claim their IRA. Once the individual s identity is confirmed to be that of the plan participant, their IRA will be classified as active and the accountholder will have complete control over the assets. These participants are also provided with a Welcome Kit including a link to our account agreement and pertinent information regarding their IRA, as well as answers to frequently asked questions and access to legal disclosure documentation. This way participants are fully informed about their benefits, as well as their options. If an initial attempt to locate plan participants is unsuccessful, Millennium Trust will then make sure those accountholders remain on record as missing and will perform annual attempts to locate them. CONCLUSION Data from across the country shows that the problem of uncashed checks represents a serious and growing dilemma for retirement plan sponsors. Estimates regarding the amount of unclaimed plan assets range into the billions of dollars, with hundreds of thousands of plan participants remaining disconnected from their funds. And plan sponsors are forced to retain responsibility for these plan assets. With administration costs continuing, escheatment not being an option in many cases and the threat of fines and lawsuits increasing the longer plan sponsors fail to follow through on their responsibilities, it becomes clear that automatic rollover IRAs provide an easy solution to the problem (both fiduciary and administrative) of uncashed checks from retirement plan distributions. By utilizing automatic rollover IRAs, plan sponsors will have been deemed to have met their fiduciary responsibilities, freeing them from the ongoing fiduciary and administrative burden of uncashed checks/ unclaimed plan assets. MILLENNIUM TRUST COMPANY 7
REFERENCES 1. Employee Tenure Summary, Bureau of Labor Statistics, http://www.bls.gov/news.release/tenure.nr0.htm 2. Millennials surpass Gen Xers as the largerst generation in the U.S. labor force, May 11, 2015, http://www.pewresearch.org/fact-tank/2015/05/11/millennials-surpass-genxers-as-the-largest-generation-in-u-s-labor-force/ 3. Part 4. Examining Process, Internal Revenue Service, http:// www.irs.gov/irm/part4/irm_04-072-010.html 4. For plan sponsors, check s in the mail-but nobody s home, InvestmentNews, November 9, 2011, http://www.investmentnews.com/article/20111109/free/111109933. Data provided by Risk Compliance Performance Solutions LLC 5. Advisory Opinion, U.S. Department of Labor, September 13, 1993, http://www.dol.gov/ebsa/programs/ori/advisory93/93-24a.htm 6. Advisory Opinion, U.S. Department of Labor, December 7, 1994, http://www.dol.gov/ebsa/programs/ori/advisory94/94-41a.htm 7. Instructions for Forms 1099-R and 5498, Internal Revenue Service, http://www.irs.gov/instructions/i1099r/ar02. html#d0e99 8. EBSA Final Rule, U.S. Department of Labor, September 27, 2004, http://www.dol.gov/ebsa/regs/fedreg/final/2004021591.htm About Millennium Trust Company Founded in 2000, Millennium Trust Company celebrates over 15 years of providing its clients with innovative and cutting-edge custody solutions. Millennium Trust is a leading financial services company offering niche alternative custody solutions to institutions, advisors and individuals. We serve as a complement to services offered by other custodians. Millennium s innovative solutions include rollover solutions, alternative asset custody, private fund custody and advisor support solutions. Have questions? Contact us at 630.368.5614 2001 Spring Road, Suite 700 Oak Brook, IL 60523 www.mtrustcompany.com Millennium Trust Company performs the duties of a custodian and, as such, does not provide any investment advice, nor any tax or legal advice. 2016 Millennium Trust Company. All rights reserved. ARP-216