Employee Benefits Developments - September 2016

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Final IRS Regulations Eliminate Requirement to File 83(b) Election with Tax Return

Under Section 83(a) of the Internal Revenue Code (the “Code”), if property is transferred in connection with the performance of services, the excess of the fair market value of the property over the amount (if any) paid for the property is includible in income by the service provider in the taxable year in which the service provider’s rights to the property are transferable or not subject to a substantial risk of forfeiture.  Notwithstanding the general rule on timing of income inclusion under Code Section 83(a), Code Section 83(b) permits a service provider to make an 83(b) election to include in income the excess of the fair market value of the property over the amount, if any, paid for the property at the time the property is transferred to the service provider, even though the property is not transferable and is subject to a substantial risk of forfeiture.

The Treasury Regulations under Code Section 83 required a taxpayer making an 83(b) election to include a copy of the 83(b) election when filing the taxpayer’s income tax return for the taxable year in which the property was transferred to the taxpayer.  In certain circumstances, taxpayers were unable to electronically file their income tax returns because of the requirement that they include a copy of the 83(b) election with their return.

After learning that certain taxpayers were unable to electronically file their income tax returns due to the requirement that the taxpayer include a copy of any 83(b) election made by the taxpayer, the Treasury Department issued proposed regulations under Code Section 83 in 2015 that eliminated the requirement for taxpayers to include a copy of an 83(b) election with their income tax return.  The Treasury Department recently issued final regulations under Code Section 83 that adopted the proposed regulations without change.

Even though taxpayers are no longer required to include a copy of an 83(b) election with their income tax return, taxpayers must still file a copy of an 83(b) election with the internal revenue office with which the taxpayer files his or her return within 30 days of making the 83(b) election.

The final regulations apply to property transferred after January 1, 2016.  For transfers of property on or after January 1, 2015 and before January 1, 2016, taxpayers may rely on the 2015 proposed regulations.


IRS Issues Proposed Rules on ACA Information Reporting

The IRS recently published proposed regulations relating to information reporting of minimum essential coverage under Internal Revenue Code section 6055.  Under the Affordable Care Act (ACA), health insurance issuers (including employers who sponsor self-insured medical plans) must report information to the IRS and covered individuals regarding the type and period of medical coverage provided. Employers sponsoring self-insured medical plans may report this information on section III of form 1095-C. These proposed rules clarify issues related to supplemental and duplicative coverage, as well as, taxpayer identification number (TIN) solicitation requirements. With regard to situations where an employer may be providing coverage to an individual under more than one plan providing minimum essential coverage, reporting is only required for one of the plans. In addition, reporting is not required for coverage that is only available if the individual is enrolled in other reportable coverage sponsored by the same employer. For example, if an employer offers a self-insured major medical plan and an integrated health reimbursement arrangement (HRA), assuming the employee is enrolled in both plans, the employer would not have to separately report the HRA coverage.  However, the employer would be required to report the employee’s HRA coverage if the employee was enrolled in a different employer’s major medical plan (such as a spouse’s employer’s plan). The proposed regulations also address TIN solicitation issues. As part of the information reporting requirement, a reporting entity must include certain information, such as the individuals’ name and TIN.  An employer or other reporting entity that does not include this information may be subject to penalties for failure to comply with the IRS filing and statement furnishing requirements.  These penalties may be waived if the failure is due to reasonable cause. That is, if the employer demonstrates that it acted in a responsible manner and that the failure is due to significant mitigating factors or events beyond its control. A person will be treated as acting in a responsible manner if the person properly solicits a TIN but does not receive it. Proper solicitation of a TIN involves an initial request and two subsequent annual solicitations. These regulations provide additional guidance regarding the timing and manner of this process.


New IRS Guidance Allows Individuals to Self-Certify Waivers of the 60-Day Rollover Requirement - IRS Revenue Procedure 2016-47

When a retirement plan or IRA pays a distribution to a participant or IRA holder (i.e., the distribution is not rolled over or transferred directly to another plan or IRA), the taxpayer generally has only 60 days to make a tax-deferred rollover of the distribution into another plan or IRA.  Taxpayers who fail to comply with the 60-day deadline for completing the rollover are able to request a waiver of the 60-day rule from the IRS where there has been some form of hardship (e.g., “where the failure to waive such requirement would be against equity or good conscience, including casualty, disaster, or other events beyond the reasonable control of the individual subject to such requirement”).  New guidance from the IRS, however, will allow a taxpayer who receives an eligible distribution from a plan or IRA to make a written self-certification to a plan administrator or IRA trustee that the taxpayer’s rollover contribution qualifies for a waiver of the 60-day rule.

They key requirements for self-certifying a waiver of the 60-day rollover requirement are as follows:

  • The taxpayer must make a written certification that the rollover contribution satisfies all the condition for a waiver of the 60-day rule.  The IRS guidance includes a model certification letter that the taxpayer may use on a word-for-word basis, or the taxpayer may use a letter that is substantially similar to the model letter.  A copy of the certification should be kept in the taxpayer’s files and be available if requested on audit.
  • The IRS must not have previously denied a waiver request with respect to a rollover of all or part of the distribution to which the rollover contribution relates.
  • The taxpayer must have missed the 60-day deadline because of the taxpayer’s inability to complete a rollover due to one or more of 11 specific reasons listed in the new guidance, including financial institution error, distribution check was lost and never cashed, severe damage to the taxpayer’s principal residence, death of a member of the taxpayer’s family, serious illness of the taxpayer or a member of the taxpayer’s family, incarceration of the taxpayer, postal error, etc.
  • The rollover contribution must be made to the recipient plan or IRA as soon as practicable after the hardship reason(s) specified in the certification no longer prevent the taxpayer from making the contribution. This requirement is deemed to be satisfied if the rollover contribution is made within 30 days after the reason(s) no longer prevent the taxpayer from making the rollover contribution.

A taxpayer may report the contribution as a valid rollover unless later informed otherwise by the IRS.  But, importantly, the IRS guidance makes it clear that a self-certification is not an actual waiver by the IRS of the 60-day rollover requirement.  The IRS, in the course of a subsequent examination, may consider whether a taxpayer’s contribution actually meets the requirements for a waiver.  If there is a later determination by the IRS that the conditions for a waiver were not satisfied, the taxpayer could be liable for taxes and penalties associated with an improper rollover contribution.

For purposes of accepting and reporting a rollover contribution into a plan or IRA, a plan administrator or IRA trustee may rely on a taxpayer’s self-certification in determining whether the taxpayer has satisfied the conditions for a waiver of the 60-day rollover requirement.  However, a plan administrator or an IRA trustee may not rely on the self-certification for determining whether the contribution satisfies other requirements for a valid rollover.   A plan administrator or an IRA trustee also may not rely on the self-certification if the plan administrator or IRA trustee has actual knowledge that is contrary to the self-certification.

The new guidance is effective as of August 24, 2016.  For further details on self-certifying waivers of the 60-day rollover deadline, see IRS Revenue Procedure 2016-47.


Employer Avoids Withdrawal Liability Under Construction Industry Exemption - Stevens Eng'rs & Constructors, Inc. v. Iron Workers Local 17 Pension Fund (N.D. Ohio, 2016)

Under the Employee Retirement Income Security Act of 1974 (ERISA), an employer performing work in the construction industry and contributing to a construction industry multiemployer plan is not subject to withdrawal liability following what otherwise would be a withdrawal unless the employer continues to perform work in the jurisdiction of the collective bargaining agreement of the type for which contributions were previously required or resumes such work within five years.  In a recent case, the District Court for the Northern District of Ohio upheld an arbitration decision finding that an employer was not subject to withdrawal liability under this exemption. 

In 2013, a construction company terminated its collective bargaining agreement with an Iron Workers Local and ceased to make contributions to the related multiemployer pension plan. The construction company then undertook a project in the geographic jurisdiction covered by the prior agreement with the Iron Workers Local.  However, certain work that the company performed was performed by millwrights at the construction job. The Iron Workers Local issued a challenge claiming that the work being performed should be performed by ironworkers rather than millwrights.  The construction company responded that the work was able to be performed by millwrights.  The Iron Workers Local did not follow through under a procedure on overlapping jurisdiction of craft unions to proceed with the challenge. 

The trustees of the multiemployer pension fund assessed withdrawal liability against the construction company claiming that the construction company was performing work in the jurisdiction of the type which previously would have been performed by ironworkers under the collective bargaining agreement and that would have required that contributions be made. 

In arbitration, the arbitrator found that the failure of the Iron Workers Local to pursue the claim that the work should have been performed by ironworkers, as opposed to millwrights, determined that the work performed by millwrights was not within the craft jurisdiction of ironworkers and, as a result, found that the construction company was not performing the type of work that it was previously required to make contributions for within the jurisdiction of the ironworkers plan.  The District Court upheld the decision of the arbitrator and the fund lost its claim for withdrawal liability. 

While the multiemployer withdrawal rules have been in place for many years, we are seeing increasing litigation over the application of the rules.  Employers involved in multiemployer plans should carefully examine the funding status of those plans and whether the actions they are taking could result in assertion of withdrawal liability. Stevens Eng'rs & Constructors, Inc. v. Iron Workers Local 17 Pension Fund (N.D. Ohio, 2016)


Court Upholds Mandatory Arbitration and Cost Sharing for Retirement Plan Claims - Luciano v. TIAA-CREF (July 2016)

A New Jersey district court ruled that an employee’s widow must submit her claim for survivor benefits in her husband’s retirement plan to binding arbitration and must pay half the costs.  The Internal Revenue Code Section 401(a) retirement plan sponsored by the husband’s employer contains a mandatory arbitration provision compelling final and binding arbitration for any claim that is again denied after the original benefit denial is reviewed by the plan administrator.  The arbitration provision also requires the claimant and the plan to “equally share the fees and costs of the Arbitrator.”

The plaintiff-widow in this case had challenged the calculations of the spousal survivor benefit made by the plan administrator following her husband’s death.  After her appeal of the initial decision was denied, the widow filed a putative class action challenging the mandatory arbitration provision as invalid “because its cost-splitting provision unduly inhibits and hampers the initiation and processing of claims for benefits” in violation of ERISA.   The court disagreed, holding that the arbitration process constitutes “a reasonable opportunity” for a “full and fair review by the appropriate named fiduciary” in compliance with ERISA.  Although the court ruled that the plan may compel arbitration of the widow’s claims, however, it also noted that the widow would be permitted to argue in future court proceedings that the cost-splitting provision “would deny her a forum to vindicate her statutory rights.”  Luciano v. TIAA-CREF (July 2016)


IRS Releases Memo on Participation by Single-Member LLC’s Employees in Member’s 403(b) and 457 Plans - C.C.A. 2016-34-021 (July 11, 2016)

In a recently released Chief Counsel Advice memorandum, the IRS addressed participation by employees of a single-member LLC that is a disregarded entity (the “LLC”), in the § 403(b) and § 457(b) retirement plans sponsored by its member owner, a § 501(c)(3) tax exempt organization (the “owner organization”). As a disregarded entity (i.e., treated as not being separate from its owner organization), the IRS opined that the LLC is a branch or division of the owner organization, which is an eligible employer under the § 403(b) rules. As a result of this status, the LLC does not have to separately qualify as an eligible employer for its employees to be able to participate in the § 403(b) plan.  In fact, the IRS cautioned that as employees of a branch or division of the owner organization sponsoring the plan, the employees are covered by the universal availability requirement in the § 403(b) regulations, which generally requires that all employees be permitted to make elective deferrals to the plan.  As a result, all of the owner organization’s and LLC’s employees must be permitted to participate in the plan.  With regard to a § 457(b) plan sponsored by the owner organization, the IRS opined that the LLC’s employees are permitted to be covered by the plan.  However, because § 457(b) plans are not subject to a universal applicability rule, the IRS stated that coverage of the LLC’s employees is not mandatory.  C.C.A. 2016-34-021 (July 11, 2016)


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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