January 7, 2014

Legal Alert: DOL and Treasury Update 2013-2014 Regulatory Agendas for Employee Benefits

Reginald Clark, Adam Cohen, Michael Hepburn, Paul Lang, Carol McClarnon, Meredith O'Leary, Vanessa Scott, W. Mark Smith, William Walderman

Eversheds Sutherland (US) LLP

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

On November 26, 2013, 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 11 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, dates projected in the agenda may prove to be ambitious.) Of particular interest, the projected date for the publication of the re-proposal of the amendment to the definition of fiduciary is now August 2014.
On November 20, 2013, the U.S. Treasury Department and the Internal Revenue Service (IRS) released their First Quarter Update to the 2013-2014 Priority Guidance Plan, often informally referred to as the IRS Business Plan, which updates those issues that will be the subject of formal guidance from July 2013 through June 2014. The IRS Business Plan includes 38 pending items addressing retirement benefits and 22 pending items addressing executive compensation, health care and other benefits.

Projects added to the agendas since they were last published are shown in bold. There are three new DOL initiatives and no new tax initiatives. Projects relating to the U.S. Supreme Court decision on Section 3 of the federal Defense of Marriage Act are not listed on the agendas.

Retirement Plans
Guidance Project	Type		Projected Date (DOL Only)	On Agenda Since:
Guidance Project	Tax	DOL	Projected Date (DOL Only)	On Agenda Since:
Guidance on frozen defined benefit plans and related matters	X			8/2013
Guidance on rules applicable to ESOPs	X			12/2010
Guidance on exceptions to additional tax under §72(t) on early distributions from retirement plans and IRAs	X			9/2011
Regulations on the application of the normal retirement age regulations under §401(a) to governmental plans	X			12/2010
Revenue procedure under §§401(a) and 403(a) updating interim amendment procedures in Rev. Proc. 2007-44	X			12/2012
Final regulations under §401(a)(9) on deferred annuities	X			12/2012
Final regulations on suspension or reduction of safe harbor contributions under §§401(k) and (m)	X			11/2009
Final regulations under §402(a) regarding the treatment of incidental benefits provided under a qualified plan	X			9/2011
Guidance under §402(c) on distributions that are disbursed to multiple destinations	X			9/2011
Regulations under §402A on distributions from designated Roth accounts that are disbursed to multiple destinations	X			9/2011
Guidance under §402A on in-plan rollovers from qualified plans to designated Roth accounts under §902 of American Taxpayer Relief Act of 2012	X			8/2013
Guidance under §404 on deductions for employer contributions to qualified plans	X			8/2013
Guidance on rules applicable to IRAs under §§408 and 408A	X			9/2011
Guidance updating regulations for service credit and vesting under §411	X			9/2011
Regulations under §411(a)(11)	X			8/2013
Final regulations relating to hybrid plans under §§411(a)(13) and 411(b)(5), as added by the Pension Protection Act of 2006 (PPA)	X			9/2011
Guidance relating to conforming amendments adopted in connection with final regulations under §§411(a)(13) and 411(b)(5), as added by PPA	X			9/2011
Guidance on issues relating to pension equity plans	X			9/2011
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
Guidance on pick-up arrangements under §414(h)(2)	X			12/2010
Regulations on eligible combined plans under §414(x), as added by PPA	X			11/2009
Regulations under §415 regarding §7873 Treaty Fishing Rights income	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
Final regulations on determination of minimum required contributions under §430, as added by PPA	X			Prior to Fall 2008
Revenue procedure under §430 relating to approval for funding method changes to reflect changes to the minimum funding requirements made by PPA	X			12/2012
Regulations on additional issues relating to funding and related rules for single-employer plans under §§430 and 436	X			9/2011
Notice on additional issues relating to funding and benefit limitation relief for single-employer plans under the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010	X			12/2010
Guidance under §3405 regarding distributions made to payees with an address outside the United States	X			12/2012
Guidance concerning §4975	X			8/2013
Final regulations to designate the Form 8955-SSA as the form to satisfy the §6057 reporting requirements	X			12/2012
Guidance under §§6057, 6058, and 6059 for late filers of Form 5500 series	X			12/2010
Revenue procedure updating Rev. Proc. 2007-44 for determination letters for individually designed plans	X			9/2011
Guidance on group trusts under Revenue Rulings 81-100 and 2011-1	X			12/2012
Guidance facilitating rollovers into retirement plans	X			9/2011
Additional guidance on issues relating to lifetime income from retirement plans	X			11/2009
Guidance on certain issues related to multiple employer plans	X			12/2012
Revenue Procedure amending Revenue Procedure 2013-12 relating to Employee Plans Compliance Resolution System to provide guidance with regard to certain corrections	X			8/2013
Guide or similar requirement for §408(b)(2) disclosures		X	1/2014 (Proposed regulation)	1/2012
Annual funding notice -- Implement PPA §501		X	3/2014 (Final regulation)	Prior to Fall 2008
Target date funds -- Increased disclosure to participants		X	3/2014 (Final regulation)	4/2010
Abandoned plan program -- Amend to expand scope of individuals entitled to be a “qualified termination administrator”		X	4/2014 (Final regulation)	12/2010
Standards for Brokerage Windows -- Review the use of brokerage windows in participant-directed individual account retirement plans		X	4/2014 (Request for Information)	11/2013
Pension benefit statements -- Implement PPA §508		X	8/2014 (Proposed regulation)	Prior to Fall 2008
__Definition of “fiduciary” -- Expand to include more persons, such as pension consultants, as fiduciaries		X	8/2014 (Re-proposed regulation)	12/2010
Annuity Selection Safe Harbor for Individual Account Plans		X	10/2014 (Proposed regulation)	11/2013
__Executive Compensation
Guidance Project	Type		Projected Date (DOL Only)	On Agenda Since:
Guidance Project	Tax	DOL	Projected Date (DOL Only)	On Agenda Since:
_Final regulations under §83 to incorporate the holding in Rev. Rul. 2005-48	X			11/2009
Regulations under §86 regarding rules for lump-sum elections	X			8/2013
Final regulations under §162(m) on the stock-based compensation aggregate limit rule under Treas. Reg. §1.162-27(e)(2), and the transition relief under Treas. Reg. §1.162-27(f)(1)	X			9/2011
Guidance under §§280G and 4999(a) on change in ownership	X			12/2010
Regulations under §404 on the application of the “in which or with which ends” rule and the exceptions to that rule in §1.404(a)-12(b)	X			9/2011
Final regulations on income inclusion under §409A	X			11/2009
Revenue ruling under §419A on the definition of post-retirement medical benefits	X			9/2011
Revenue ruling under §424(c)(1)(B) on whether there is a disposition of Incentive Stock Option or Employee Stock Purchase Plan shares on receipt of boot by a target shareholder in a §368(a)(1) reorganization	X			9/2011
Regulations under §457(f) on ineligible plans	X			Prior to Fall 2008
__Health Care and Other Benefits
Guidance Project	Type		Projected Date (DOL Only)	On Agenda Since:
Guidance Project	Tax	DOL	Projected Date (DOL Only)	On Agenda Since:
Final regulations on cafeteria plans under §125	X			Prior to Fall 2008
Guidance under §132(f) on the use of electronic forms of fare media to distribute qualified transportation fringe benefits	X			9/2011
Guidance under §162(m)(6), as added by the ACA	X			12/2010
Regulations amending §1.419A-2T relating to collectively bargained welfare benefit funds	X			12/2012
Regulations under §512 explaining how to compute unrelated business taxable income of voluntary employees’ beneficiary associations described in §501(c)(9)	X			12/2010
Final regulations under §§3101(b), 3102(f), and 1401(b) on the Additional Medicare Tax on employees and self-employed individuals as added by §9015 of the ACA	X			8/2013
Final regulations under §§3127, 3121(b)(3)(A), and 3306(c)(5) making certain FICA exceptions available for disregarded entities	X			8/2013
Final regulations under §3504 on reporting employment taxes for home care service recipients	X			5/2013
Final regulations under §3504 designating certain parties that file employment tax returns under their EINs for their clients’ workers as persons required to perform acts of employers	X			8/2013
Revenue procedure under §3504 updating and consolidating existing guidance related to the procedures for authorizing agents to perform employment tax acts on behalf of an employer	X			5/2013
Regulations under §4980G on interaction of §4980G and §125 with respect to comparable employer contributions to employees’ HSAs	X			Prior to Fall 2008
Final regulations on shared responsibility for employers regarding health coverage under §4980H, as added by §1513 of the ACA	X			8/2013
Guidance under §6402 on employee consents obtained by employer to claim a refund of FICA taxes	X			5/2013
Guidance relating to the Mental Health Parity and Addiction Equity Act of 2008		X	12/2013 (Final regulation)	7/2013
Amendments to regulations regarding excepted benefits		X	12/2013 (Proposed regulation)	12/2013
Guidance relating to the 90-day waiting period limitation under the ACA		X	2/2014 (Final regulation)	7/2013

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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.