By W. Mark Smith, Esq.and Joanna G. Myers, Esq.
Sutherland, Washington, D.C.
On October 23 and 24, the Internal Revenue Service (IRS) and the Department of Labor (DOL) issued coordinated guidance on lifetime income provided through target date funds held by retirement plans. According to an accompanying press release from the Treasury and, like the final regulations on longevity contracts issued in July 2014, the guidance is intended to encourage and expand the availability of retirement income options in defined contribution plans. It thus continues the pattern of resolving regulatory uncertainties that can impede the utilization of these options in 401(k) and other plans.
The guidance considers a retirement plan investment option structured as a series of target date funds (TDFs) that may buy, as part of their fixed income allocation, deferred income annuity contracts providing specified amounts of lifetime or periodic income commencing (usually) in the future. Each TDF is available to participants of a specific age or in an age band, in part because the price of the future annuity income actuarially varies with the age of the participants. The investment manager manages each age-restricted TDF to become more conservative as the age of the participant cohort advances, which may increase the allocation to the annuity. The annuities are distributed to the participants at the target date.
IRS Notice 2014-66
In Notice 2014-66, the IRS considered the permissibility of this structure under the I.R.C. §401(a)(4) nondiscrimination requirement for qualified retirement plans, and specifically the rules that:
|Sutherland Comment: These two conditions appear intended to ensure that the TDFs are not otherwise treating older and younger participants in a discriminatory manner. For example, the Notice requires that the fee structure, including any portion paid by the plan sponsor, be determined in a consistent manner among the TDFs. The Notice presumably is not intended to require that the TDF glide path manager, the manager of the equity sleeve and the manager of the fixed income sleeve are all the same entity, but only that each of those separate functions is consistently carried out by a single entity.|
|Sutherland Comment: Other than with respect to GLWBs and GMWBs, about which the Treasury is still considering guidance, and employer securities, presumably to avoid familiar issues when plans hold untraded employer securities, the Notice does not appear prescriptive with respect to the form of the annuities or the TDFs, which would need to comport with applicable ERISA, banking, insurance, securities or other requirements. The tax guidance contemplates that the TDFs may be either a default or a regular investment option under the plan.|
DOL Information Letter
In an information letter dated October 23, DOL confirmed that a properly structured TDF that includes a deferred
annuity will be a qualified default investment alternative (QDIA) and that a responsible plan fiduciary who prudently appoints the TDF investment manager will generally not be liable for the manager's selection of an annuity provider.
|Sutherland Comment: The information letter specifically addresses "unallocated" annuity contracts – i.e., contracts held for the TDF without allocation to individual participants – and the Notice in an example contains a similar reference. Thus, it is clear that allocation in the contracts of specific annuity benefits to specific participants is not necessary to the results in the guidance. We see no reason why properly structured allocated contracts should be treated differently than unallocated contracts for these purposes.|
Sutherland assisted in requesting this guidance.
For more information, in the Tax Management Portfolios, see Horahan and Hennessy, 365 T.M., ERISA — Fiduciary Responsibility and Prohibited Transactions, and in Tax Practice Series, see ¶5530, Fiduciary Duties and Prohibited Transactions.
© 2014 Sutherland Asbill & Brennan LLP.
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