Articles Discussing General Topics In Employee Benefits.

The IRS recently published its annual update on user fees, Revenue Procedure 2016-8, which now includes fees for Voluntary Compliance Program (“VCP”) applications filed with the IRS pursuant to the Employee Plans Compliance Resolution System set forth in Revenue Procedure 2013-12. As a result, the fee for VCP applications has been reduced for almost all plans eligible to file a VCP application with the IRS.

Sue looks at how social welfare organizations will be impacted by the Protecting Americans from Tax Hikes Act. Under the new law, there is a new notice requirement and expanded filing.

While taxpayers were completing their holiday shopping and preparing to spend time with their families, Congress and the Internal Revenue Service (“IRS”) were busy changing laws governing employee benefit plans and issuing new guidance under the Patient Protection and Affordable Care Act (“ACA”). The results of that year-end governmental activity include the following:

On Friday, December 18, 2015, when President Obama signed the Protecting Americans from Tax Hikes (PATH) Act into law, one of the provisions included in the law made the monthly limit on qualified transportation benefits for public transportation equal to the monthly limit applicable to parking benefits. This means that, for 2016, instead of $130 per month as was recently announced by the IRS, the limit on commuting benefits that could be provided tax free will be nearly doubled, to $255 per month. (Technically, the limit for this year increased as well, to $250 per month, but since there’s only a week left before the end of the year, that increase is fairly moot.) This increase is permanent – or as permanent as tax reductions are – unlike the temporary increase enacted in 2009.

Here in the middle of the holiday season, we’ve been busy putting the finishing touches on the next issue of our practice group’s quarterly newsletter, “Employee Benefits for Employers.” The newsletter is a reimagined version of some earlier efforts to provide this audience with useful information on the rapidly evolving areas of employee benefits and executive compensation. You may have noticed our first issue when it came out in September, but if not, please take a moment to check it out here.

A Troubling Expansion of Successor Liability. Under the Employee Retirement Income Security Act (“ERISA”), as amended by the Multiemployer Pension Plan Amendments Act (“MPPAA”), an employer that has assumed an obligation to contribute to and subsequently withdraws from a collectively-bargained and jointly-administered defended benefit pension plan (a “multiemployer plan”) is liable for its allocable share of any underfunding. This “withdrawal liability” has become a significant issue since 2008, due to the economic and investment impact of the recession, historically low interest rates, declining plan participation, and an increase in the number of retirees, among other things.

Last November, Melissa Ostrower wrote an excellent blog on the perils of employers reimbursing employees for health care premiums. (See: http://www.benefitslawadvisor.com/2014/11/articles/health-care-reform-legislation/premium-reimbursement-arrangements-employers-beware/) At the time of her article, the Department of Labor had just published a new FAQ which stated, in general, that where an employer provides cash reimbursements to employees for the purchase of an individual market health care policy or provides cash in lieu of coverage to employees with high claims risks, such action would be considered part of a plan, fund or arrangement governed by the Affordable Care Act (“ACA”). Because these arrangements — by their nature — can never comply with the ACA group health plan provisions, they may subject employers providing such arrangements to penalties.

On October 21, 2015, in Information Release 2015-118, the IRS announced cost-of-living adjustments to various dollar limitations under the Internal Revenue Code (the “Code”) for pension plans and other related items for the year 2016. Those limitations and thresholds generally remain unchanged from this year’s amounts because the measuring cost-of-living indices did not increase sufficiently to warrant adjustments. So, for example:

The Internal Revenue Service recently announced its cost-of-living adjustments applicable to dollar limitations for retirement plans and Social Security generally effective for Tax Year 2016 (see IR-2015-118). Most notably, the limitation on annual salary deferrals into a 401(k) plan (along with the other retirement plan limitations) remains unchanged. The dollar limits are as follows:

Arbitration of ERISA Claims: Yes, You Can!

Five years ago, Chief Justice Roberts observed: “People make mistakes. Even administrators of ERISA plans.” Conkright v. Frommert, 559 U.S. 506, 509 (2010). Four years ago, searching for a mechanism to provide monetary relief for such mistakes under ERISA, the Supreme Court reached into the desiccated maw of early 19th century trust law and pulled out the make-whole remedy of surcharge. CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011). While the contours of the surcharge remedy are still being worked out in the lower courts, it currently appears to have only two elements – (1) a breach of fiduciary duty (2) that results in actual harm.

In a recent “Employee Plan News” issued by the Internal Revenue Service (“IRS”), the IRS emphasized that plan sponsors are ultimately responsible for proper administration of their retirement plan and thus, must maintain documentation of hardship distributions and plan loans even if a third party administrator (“TPA”) handles these transactions. The IRS stated that a failure to provide these records during an IRS examination is a qualification failure that should be corrected using the Employee Plans Correction Resolution System (“EPCRS”).

With Revenue Procedure 2015-27, the IRS has made several modifications to the most recent restatement of The Employee Plans Compliance Resolution System (“EPCRS”) (found in Rev. Proc. 2013-12, 2013-4 I.R.B. 313). In general, the EPCRS sets forth a system of correction programs for sponsors of retirement plans that are intended to satisfy certain Internal Revenue Code (“Code”) sections, but have failed to meet those requirements for some period of time. EPCRS includes the Self-Correction Program (“SCP”), the Voluntary Correction Program (“VCP”) and the Audit Closing Agreement Program (“Audit CAP”).

In response to comments from various organizations representing employers, plans, recordkeepers, and other service providers, the U.S. Department of Labor (“DOL”) published a rule revising the timeframe for administrators to provide certain expense and investment annual disclosures to individuals participating in “participant-directed individual account plans” (e.g., 401(k) plans and 403(b) plans). If implemented, the rule requires that participants receive the annual disclosures at least once in a 14-month period. The current rule calls for the annual disclosures at least once every 12 months.

On March 16, 2015, the U.S. Departments of Labor, Health and Human Services, and Treasury finalized regulations that would treat certain limited health coverage that wraps around eligible individual health insurance or multi-state plan coverage offered by the U.S. Office of Personnel Management (OPM) as an “excepted benefit.” Excepted benefits are exempt from numerous requirements generally applicable to group health plans, including the requirements of HIPAA and the insurance market reforms of the Affordable Care Act (ACA).