The Rosenbaum Law Firm P.C. Blog

The rules are the rules and I believe that rules should be consistent and rational. The Internal Revenue Service (IRS) disagrees with that notion when it comes to automatic enrollment and merged plans into MEPs and PEPs.

SECURE 2.0 requires that 401(k) plans created on or after December 29, 2022, must automatically enroll participants at a contribution rate of 3% to 10% starting in 2025. Plans started prior to December 29, 2022, are not subject to this requirement and are “grandfathered” in.

IRS 2004-2 explained that a single-employer plan that is grandfathered under this provision and later joins a multi-employer plan (MEP) or pooled employer plan (PEP) that is not grandfathered, loses its grandfathered status.

I think that this contradicts the law and reduces the interest that the existing plan would have to join MEPs and PEPs. Automatic enrollment may cost an existing plan more matching contributions if they joined a PEP enacted after the deadline.

Any existing plan that merges into any type of plan should be grandfathered for purposes of automatic enrollment.

Bank of America’s research found that 401(k) account balances rose 15% to an average of $86,280 in 2023 because of higher contributions and a strong stock market.

Bank of America’s Retirement and Personal Wealth Solutions conducted their research information on over 4 million participants.

Almost 18% of 401(k) plan participants increased their deferrals in the fourth quarter of 2023, up from slightly more than 9% in the third quarter.

Fewer participants borrowed from their 401(k) plan in the 4th quarter, with 2.3% taking loans, as opposed to 2.5% in the 3rd quarter.

The Department of Labor was issued an emergency temporary restraining order (TRO) by the U.S. District Court for the Western District of Pennsylvania against RiversEdge Advanced Retirement Solutions LLC, and owner Paul Palguta.

According to the DOL, RiversEdge is a third-party administrator (TPA) of at least 240 retirement plans.

According to the DOL, RiversEdge Advanced Retirement Solutions LLC and its owner Paul Palguta violated ERISA and embezzled more than $5.5 million in retirement plan assets from 17 retirement plans—by transferring them from retirement plan trusts into their corporate accounts. I will alays that stealing from a retirement plan is dumb, because there will always be a trail.

The DOL also alleges that the defendants tried to conceal their embezzlement by issuing fake account statements to the retirement plans causing them to file false 5500s with the DOL that overstated the amount of assets in the trust accounts.

According to PlanSponsor, LVMH, News Corp., Sephora and Walt Disney Co. are among the large employers, that have tapped Fidelity to offer their 401(k) plan participants a student loan debt repayment matching benefit.

This is no surprise. Large employers can afford to offer it. Most medium and small plans will not offer it. They will not see the benefit of offering it.

As I write this, the greatest investment I’ve ever owned, Bitcoin is over $65,000 a coin. Until the Department of Labor (DOL) says yes, it has no space in a 401(k) plan.

The DOL’s reservations and concerns are clear, but I think the approval and success of Bitcoin ETFs will open up the door for placement in 401(k) plans because exchange-traded funds in a custodial trust account is a lot safer than a digital wallet and I believe the sport Bitcoin ETFs will make Bitcoin less volatile. Just a matter of time before the DOL approves their appearance on investing platforms.

The Department of Labor (DOL) should be finalizing its proposed update to the Voluntary Fiduciary Correction Program in “the next few months,” according to a representative of the Employee Benefit Security Administration (EBSA).

The DOL previously proposed last fall, to permit certain errors to be self-corrected. It would allow a plan sponsor to fix the error and inform EBSA after the fact, instead of seeking pre-approval. Eligible errors would include salary deferrals that are invested or loan repayments that are deposited in an untimely manner, provided the cost of error does not exceed $1,000 and is not more than 180 days old. This is believed by EBSA to represent the majority of the fiduciary errors made in plan administration.

While self-correction may cut down on my billing for these applications, I think self-correction will help plan sponsors out in fixing errors.

Thalidomide was supposed to be the wonder drug that helped women manage morning sickness until they discovered it caused birth defects. Asbestos was supposed to be the ultimate fire-resistant material that was later found to cause mesothelioma when produced or when disturbed. When companies decided to ditch defined benefit pension plans for a cheaper alternative in the 401(k) plan, they also had a hidden danger with a 401(k) plan, but it doesn’t have to be that way. If managed correctly, a 401(k) plan is an effective retirement plan for the employer and employees. If not, it’s a retirement plan thalidomide except the plan sponsor doesn’t know the danger.

The switch from defined benefit plans to 401(k) plans switches the burden of funding retirement from the employer to the employee. If the plan is participant-directed, it also switches the selection of investments from employers aided by financial advisors to the folks who have the least amount of background to make these tough decisions, the plan participants. Too many plan sponsors don’t educate their plan participants to make informed investment decisions and too many plan sponsors don’t have a proficient investment advisor to guide them through the financial process. It doesn’t have to be this way. Getting investment advisors who know what they’re doing and getting participants enough investment education/advice isn’t hard, but too many plan sponsors are too lazy to manage. But it doesn’t have to be this way.

Defined benefit plans have pretty straightforward fees. You know how much annual administration is and you don’t have that luxury with participant-directed 401(k) plans that have multiple fees that can confuse anyone including retirement plan professionals. Too many plan sponsors have been sued because the 401(k) plan fees are too high since plan sponsors have a fiduciary to pay reasonable fees. But it doesn’t have to be this way. Plan sponsors can benchmark their fees to see if they are reasonable, actually, they have no choice; they have that duty.

401(k) plans don’t have to be a hidden danger; all they need is a plan sponsor who understands their pitfalls and wants to avoid the liability that goes with it. That’s the tallest order.

If you own a business, expanding by buying a competitor goes a long way. Mergers and acquisitions are a huge part of growing a business.

The problem with corporate transactions is dealing with the retirement plan for the company you’re buying. This isn’t an issue if you’re just buying the assets of another business. If you’re buying the stock of another business, you need to protect yourself since a 401(k) plan of the business you’re buying, goes with it. Make sure the merger or stock purchase agreement handles the 401(k) plan and due diligence is needed to make sure the plan that is coming is in good shape.

The warranty in the electronics business is gravy for the retailers who sell it. You’ll be surprised how many people pay $20 to get a warranty on a $100 Blu-Ray player. When Best Buy was going national, they advertised how they wouldn’t sell warranties and then realized that they couldn’t turn down all that free money.

A warranty is like insurance, so you should only insure those things that have a high-cost replacement. You insure your health, your life, your house, your car, and some appliances worth insuring.

This isn’t another diatribe about the fiduciary warranty that insurance companies give away for free even though their main business is insuring risk for a fee.

This is about plan sponsors who don’t insure their risk by buying fiduciary liability insurance or buying a plan service that could review their plan expenses and/or their plan document/administration.

Fiduciary liability insurance helps protect plan sponsors who find themselves also appearing as defendants in a plan lawsuit filed by an aggrieved plan participant in a town near you. I had clients sued in a class action lawsuit where the insurance company paid $900,000 for a $1 million legal fee (there was a $100,000 deductible) and this plan sponsor won their case.

So many plan sponsors don’t want to pay for a plan review that can help them identify plan issues they wouldn’t ordinarily find unless they were converting to a new provider. I have a plan review called the Retirement Plan Tune Up for $750 and I can probably count on one hand how many I do a year. When I talk to plan sponsors and advisors, they seem interested but they treat a plan review like a trip to the dentist; something that they will avoid until it’s too late.

Spending some shekels on a fiduciary liability policy and a plan review is certainly well worth it to avoid greater harm later.

A small plan received an audit inquiry from the Internal Revenue Service (IRS). Upon further review, it appears that the plan didn’t have an ERISA bond and admitted under penalties of perjury, that they didn’t.

I assure you that the audit wasn’t random. Not having an ERISA bond or having the right coverage will get you an invitation by the IRS or Department of Labor (DOL) for an inquiry.