Treasury Announces 2016-2017 Regulatory Agenda for Employee Benefits, By W. Mark Smith, Esq., and Brittany Edwards-Franklin, Esq.…September 2016

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W. Mark Smith Brittany Edwards-Franklin

W. Mark Smith and Brittany Edwards-Franklin Sutherland Asbill & Brennan LLP, Washington, D.C. and Atlanta, GA

The principal regulators of U.S. employee benefits have recently published updates to their guidance plans for the coming months.

  •   On August 15, 2016, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) released their 2016-2017 Priority Guidance Plan, often informally referred to as the IRS Business Plan, which lists those issues that will be the subject of formal guidance from July 2016 through June 2017. The IRS Business Plan includes 35 pending items addressing retirement benefits and 20 pending items addressing executive compensation, health care and other benefits. The items are listed in the chart below in the reverse order of when they first appeared on the agenda.
  •   On May 18, 2016, the U.S. Department of Labor (DOL) updated its Semi-Annual Regulatory Agenda. This publication takes the form of a Federal Register notice to comply with certain administrative requirements. The DOL's agenda and related materials include 13 pending projects related to employee benefits, which are listed in the chart below in order of the projected timetable for next steps. (In the ordinary course, the projected dates shown on the agenda may prove to be ambitious.)


Projects added to the agendas since they were last published are shown in bold. There are 14 new IRS initiatives, and no new DOL initiatives. We also note that the §280G guidance project is no longer on the IRS Business Plan.

Guidance Project Type Projected Date(DOL Only) On Agenda Since: Tax DOL Retirement Plans Additional guidance on the determination letter program, including changes to the pre-approved plan program X 8/2016 Additional guidance regarding qualifying longevity annuity contracts X 8/2016 Guidance on the timing of the use or allocation of forfeitures in defined contributions plans X 8/2016 Guidance on the treatment of future interest credits under a hybrid defined benefit plan for purposes of satisfying various qualification requirements X 8/2016 Guidance on §403(b) remedial amendment period X 8/2016 Regulations on qualified excess benefit arrangements under §415(m) X 8/2016 Update of §416 regulations for statutory changes X 8/2016 Revenue procedure modifying Revenue Procedure 2013-12 relating to the Employee Plans Compliance Resolution System (EPCRS) to reflect changes in the determination letter program X 8/2016 Regulations under §401(a)(9) on the use of lump sum payments to replace lifetime income being received by retirees under defined benefit pension plans X 7/2015 Regulations regarding individual retirement accounts (IRAs) under §219, §4973, §408, and §408A X 7/2015 and9/2011 Additional guidance on issues relating to lifetime income from retirement plans and IRAs X 7/2015 Guidance regarding substantiation of hardship distributions X 8/2014 Guidance regarding Qualified Nonelective Contributions (QNECs) and Qualified Matching Contributions (QMACs) X 8/2014 Guidance regarding the aggregation rules under §414(m) X 8/2014 Regulations under §417(e) that update the minimum present value requirements for defined benefit plans X 8/2014 Regulations relating to the reporting requirements under § 6057 X 8/2014 Notice and regulations under §430(h)(3)(B) updating the mortality tables used for pension funding purposes X 8/2014 Final regulations on closed defined benefit plans and related matters X 8/2014 Guidance under §404 on deductions for employer contributions to qualified plans X 8/2013 Regulations under §411(a)(11) X 8/2013 Final regulations under §415 regarding §7873 Treaty Fishing Rights income X 8/2013 Guidance concerning §4975 X 8/2013 Revenue procedure amending Revenue Procedure 2013-12 relating to EPCRS to provide guidance with respect to certain corrections X 8/2013 Final regulations under §417(e) to simplify the treatment of optional forms of benefit that are paid partly in the form of an annuity and partly in a more accelerated form X 12/2012 Regulations on the definition of governmental plan under § 414(d) X 12/2012 Regulations on the status of Indian tribal governmental plans as a governmental plan under §414(d) X 12/2012 Revenue procedure under §430 relating to approval for funding method changes to reflect changes to the minimum funding requirements made by the Pension Protection Act (PPA) X 12/2012 Guidance under §3405 regarding distributions made to payees with an address outside of the United States X 12/2012 Regulations on exceptions to additional tax under §72(t) on early distributions from retirement plans and IRAs X 9/2011 Guidance updating regulations for service credit and vesting under §411 X 9/2011 Guidance on issues relating to pension equity plans X 9/2011 Regulations on additional issues relating to funding and related rules for single-employer plans under §430 and §436 X 9/2011 Final regulations on the application of the normal retirement age regulations under §401(a) to governmental plans X Prior to Fall 2011 Regulations updating the rules applicable to employee stock ownership plans (ESOPs) X Prior to Fall 2011 Regulations on eligible combined plans under §414(x), as added by PPA X Prior to Fall 2011 Amendment to claims procedure regulation — Amendment to strengthen, improve and update current rules governing internal claims and appeals processes X 6/2016(Analyze comments) Prior to Fall 2011 Modernize Form 5500 — Joint project with IRS and Pension Benefit Guaranty Corporation (PBGC) to streamline Form 5500, making its data mineable X 6/2016(Proposed regulation) 5/2014 Expand Voluntary Fiduciary Correction Program (VFCP) — Expand scope of some transactions eligible for correction and streamline procedures for others X 7/2016 (Interim final rule) 5/2014 Abandoned plan program — Amend to expand the scope of individuals entitled to be a “qualified termination administrator” X 8/2016(Interim final rule) Prior to Fall 2011 Savings arrangements established by states for non-governmental employees — Guidance regarding methods states may use to offer retirement savings arrangements to private-sector employees X 9/2016 (Final regulation) 11/2015 Top hat plan electronic filings — Amend current rules to permit electronic filing of certain reporting and disclosure requirements X 10/2016(Final regulation) 5/2014 Standards for brokerage windows — Review the use of brokerage windows in participant-directed individual account retirement plans X Undetermined timetable 11/2013 Lifetime income in defined contribution plans — Safe harbor for annuity selection X Undetermined(Proposed regulation) 11/2013 §408(b)(2) disclosure — Guide to disclosure X Undetermined timetable 1/2012 Target date funds — Specific disclosure requirements X Undetermined timetable Prior to Fall 2011 Pension benefit statements — Implement PPA §508 X Undetermined timetable Prior toFall 2011Executive CompensationGuidance under §162(m) addressing certain situations involving a short taxable yearX8/2016Final regulations on various issues under §409A X8/2016Revenue procedure on requirements for maintaining certification and operating as a Certified Professional Employer Organization (CPEO) X8/2016Guidance on procedures under §7436 relating to proceedings for determination of employment statusX8/2016 Final regulations and related guidance under §3511 and §7705 on CPEO as added by § 206 of the Stephen Beck, Jr. Achieving a Better Life Experience (ABLE) Act of 2014 X 7/2015 Guidance to update prior §409A self-correction program guidance X 8/2014 Guidance on the application of §1402(a)(13) to limited liability companies X 8/2014 Guidance under §6053 regarding tips X 8/2014 Final regulations regarding election procedures under §83(b) X 8/2014 Regulations under §86 regarding rules for lump-sum elections X 8/2013 Final regulations on income inclusion under §409A X Prior to Fall 2011 Final regulations under §457(f) on ineligible plans X Prior to Fall 2011Health Care and Other BenefitsGuidance on certain transactions involving welfare benefit fundsX8/2016Guidance on issues under §4980H X8/2016 Regulations under §4980I regarding the excise tax on high-cost employer-provided coverage X 8/2015 Guidance under §119 and §132 regarding employer-provided meals X 8/2014 Regulations amending §1.419A-2T relating to collectively bargained welfare benefit funds X 12/2012 Revenue procedure under §6402 on employee consents obtained by employer to claim a refund of FICA taxes X 12/2012 Revenue ruling under §419A on the definition of post-retirement medical benefits X 9/2011 Final regulations under §512 explaining how to compute the unrelated business taxable income of voluntary employees' beneficiary associations described in §501(c)(9) X Prior to Fall 2011 Notice of Proposed Rulemaking for Health Care Continuation Coverage — Eliminates model notice in the appendix of § 2590.606-1, among other changes, and allows the Department of Labor to place updated model notices on its website X Undetermined timetable 5/2015 Improved fee disclosure for welfare plans — Rules to ensure that plan fiduciaries of welfare plans can access information necessary to determine whether an arrangement for services is reasonable X Undetermined timetable 11/2013

For more resources and commentary regarding the expanded DOL Fiduciary Rule, visit Sutherland's

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