IRS Extends Tax Filing and Payment Date by 90 Days

Update: March 20, 2020: The Treasury Secretary Steven Mnuchin announced that the IRS is now extending the federal income tax filing deadline to July 15.  Earlier this week, the Treasury Department released guidance that pushed back just the deadline for making federal tax payments — not for filing tax returns — to July 15.

As part of its coronavirus response, the federal government is giving taxpayers a three-month reprieve to pay their 2019 taxes.

2019 tax returns and payments were originally due on April 15. Treasury Secretary Steven Mnuchin announced on March 17 that a 90-day grace period to pay applies to taxpayers who owe up to $1 million and covered many pass-through entities and small businesses, according to the Treasury Secretary.

Corporate filers will get the same 90-day extension to pay on amounts due up to $10 million.

During this three-month grace period, taxpayers won’t be subject to interest and penalties if their 2019 taxes are paid on or before July 15, 2020.

The 90-day grace period applies only to the payment of 2019 taxes. The tax return due date remains April 15. Taxpayers should get their 2019 federal income tax return filed as soon as possible, especially if expecting a refund and in need of cash.

As of this afternoon, the State of Michigan has not announced any adjustments to its tax filing and payment deadlines; those remain April 15, 2020.


Fraser Trebilcock attorney Paul V. McCord has more than 20 years of tax litigation experience, including serving as a clerk on the U.S. Tax Court and as a judge of the Michigan Tax Tribunal. Paul has represented clients before the IRS, Michigan Department of Treasury, other state revenue departments and local units of government. He can be contacted at 517.377.0861 or pmccord@fraserlawfirm.com.

Addressing Coronavirus (COVID-19) in the Workplace

Addressing Coronavirus (COVID-19) in the Workplace

Experts and commentators now predict that the coronavirus will spread throughout our state and nation. Employers stand at the forefront of efforts to contain the illness.

The United States Department of Labor has issued several alerts and advisories to guide Employers.  These can be found at:

A few key points in connection with the above authorities include:

  • The OSHA “general duty” clause, as a reminder, requires the employer to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
  • Consider limiting the opportunities for at-work contacts involving large groups of workers or where “social distancing” is not feasible.
  • Workers who contract coronavirus or must remain at home to care for a covered family member who is incapacitated are FMLA eligible provided they meet normal eligibility criteria.
  • Workers are not entitled to FMLA leave to avoid exposure.
  • Educate your workers about personal hygiene, safe work practices and other safety measures.
  • Consider issuance of personal protective equipment.
  • Provide sanitizers and supplies near all work stations.
  • Encourage use of sick leave and isolate and send home workers who exhibit symptoms while at work.
  • Be cautious not to violate other anti-discrimination provisions in selecting workers for lay-off or similar work reductions.

Fraser Trebilcock expects that given the unprecedented scope of the challenge, employers who seek to limit situations where the virus may be spread will be less likely to have those proactive decisions second-guessed than employers where modest or no action is taken.

Due to the scope of the impact of the health and employment issues, and individual workplace circumstances, we urge you to consult your Fraser Trebilcock Law Firm Employment Lawyer for specific advice.


Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

Downtown Lansing New Parking Tutorial

Beginning in late 2019, Downtown Lansing installed solar-powered pay stations for on-street parking, moving away from the previous parking meters. This tutorial from the City of Lansing will assist you on how to use these new pay stations. You can visit the City of Lansing’s website here to read more.

How it works:

  1. Park your vehicle as usual.
  2. Make a note of your license plate number.
  3. Look for any conveniently located pay station.
  4. Press the start key to “wake” the unit up from power save mode.
  5. Using the key pad enter your license plate number and zone number your vehicle is located in, then press the green check mark button to confirm.
  6. Insert your pay method of change or credit/debit card.
  7. Select your stay time using the blue “-” and “+” buttons shown on the keypad. Press the red cancel button if you need to start over.
  8. Press the green button on the keypad to confirm stay time and your receipt will be printed.
  9. Take your receipt with you. The time your parking expires is printed right on the receipt.

Uncapping of Commercial Real Estate Assessments

Most are aware that the taxable value assessment of a commercial property is uncapped on its sale, but it can also uncap in the event of certain other transfers which do not involve the sale of property and the recording of a deed.

By way of background, Michigan real property taxable value assessments are “capped” and can only increase year-to-year at the lesser of 5% or the rate of inflation. Section 211.27a(6) of the General Property Tax Act defines “transfer of ownership” generally as the conveyance of title to or a present interest in property, the value which is substantially equal to the value of the fee interest. Section 211.27a(6) provides a variety of examples of what constitutes a transfer of ownership for taxable value uncapping purposes.

Many are unaware that the sale or transfer of an ownership interest in an entity which owns real property is a transfer of ownership of the entity’s real estate for tax purposes if the ownership interest sold or transferred is more than 50% of the total ownership interest in the entity. In other words, if you sell or transfer more than half of the ownership interest in an entity owning real property, you have created a “transfer of ownership” of the entity’s real property for real estate tax purposes. This provision is applicable to stock in a corporation, membership interests in a limited liability company and percentage ownership in a partnership. Such a sale or transfer will result in the “uncapping” of the property tax assessment of all real property owned by the entity. By way of example, suppose John Doe owns a majority of the ownership interest in Universal Widget and transfers it as a gift to his son, Peter Doe. The transfer will result in the uncapping of the property tax assessment on all real property owned by Universal Widget. If the transfer occurs in increments over time, the lifting of the taxable value cap occurs at the point John Doe no longer owns the majority interest in Universal Widget.

When a majority ownership interest in an entity has been sold or transferred, a Real Estate Property Transfer Affidavit must be filed with the local assessor. Section 10 of the Affidavit states “Type of Transfer: Transfers include, but are not limited to, deeds, land contracts, transfers involving trusts or wills, certain long-term leases and business interest.” Failure to timely file the Affidavit permits the assessor to go back and increase prior tax assessments (after the transfer took place) to adjust the property tax assessment, possibly resulting in (i) an increased assessment resulting in increased property taxes, (ii) interest on the difference on the tax that was paid and the tax that should have been paid and (iii) penalties.

Any time you are contemplating a sale or transfer of an ownership interest in an entity which owns real estate you should consult with your attorney about the means and ramifications of your proposed transaction.


Fraser Trebilcock’s Real Estate team has a depth of experience in advising clients on all issues of property law, and they strive to have their clients’ interests protected. You can contact them at (517) 482-5800, or by filling out the contact form here.

Seven Tips About Data Breach Prevention and Cybersecurity for Small Businesses

We see it in the news regularly. Major corporations like Anthem, eBay, Equifax, Sony Pictures, and Target have all suffered major data security breaches. But these breaches don’t only happen to large organizations. Companies of all sizes are targets. Sometimes, smaller companies are even bigger targets because protections may not be as secure.

So how do businesses of all sizes go about data breach prevention and cyber security? Here are seven tips to strengthen your business against a data breach.

1. Train employees and users on data breach prevention

Human error is often to blame for most breaches. The easiest way for a hacker to invade your network is by preying on an employee who doesn’t recognize the risk. Whether through a malware email attachment, or by downloading a document from an unreliable resource, there is a wide variety of easy phishing attempts that can lead to a data breach. The key to prevention is teaching your employees how to avoid making these common mistakes. Also, include a technology protocol section in your employee handbook where your team can easily access it. This section should cover proper steps to take to protect your technology, especially anything that could be considered a trade secret, or private customer/client information and data.

2. Store customer data in an encrypted database

Another tip for data breach prevention is to use a secure database and encrypt any items containing customer/client information or trade secrets. The encryption process converts that information or data into a code, which then works to prevent unauthorized access. A common example of this process is the one used when you make an online purchase. Once you enter your payment information onto an ecommerce website and it has been approved, your information is encrypted before it is stored on the website. When you later go back to the website to make another purchase from your account, your information is ready to use.

3. Improve cybersecurity with two-factor authentication

Two-factor authentication adds an extra layer of protection to logging into a website. After a user inputs the required login and password, an extra step is initiated to ask the user for another piece of information that only he or she would have. For example, a text message with a one-time code may be sent to the user’s phone, which is tied to the account. Two-factor authentication is very important for data breach prevention if your business has devices that go in and out of the office, such as tablets or laptops, making sure they are secure in the event they become lost or stolen.

4. Malware detection software on both servers and workstations

Each workstation inside your business, as well any servers, need to have malware detection software installed to help with data breach prevention. The detection software prevents malware from being installed. Malware can be hidden in a variety of formats, the detection software helps scan each item to ensure its safety. There are a variety of different software packages available for businesses, depending on the level of security needed.

5. Perform regular vulnerability checks

It’s critical that you perform regular vulnerability checks to minimize the risk and prevent data breaches. For example, it’s important that firewall configurations be reviewed regularly with penetration testing, to make sure only trusted networks are given access. Software updates may also vary with your malware protection software. There are programs that can run regular checks, or you can look to a third-party IT company for assistance. It’s also important that you continue to test and train employees through phishing emails to ensure they stay vigilant.

6. Require frequent remote data backups

Whether routinely completed on the cloud or on an external hard drive, remote data backups ensure that your data is stored securely. A routine backup allows you to have a reference point if your data is breached in the future. Most backup providers allow you to pick the frequency of the backup, time of day it occurs, and what level of information detail you would like to store.

7. Have a disaster plan ready in case of a data breach

Protecting your business against a data breach is an ongoing process. Under the Michigan Identity Theft Protection Act, in the event of a data breach that is likely to cause harm or result in identify theft, a business must provide a notice of the security breach to each affected Michigan resident, customers and vendors affected by the breach, as well as consumer reporting agencies. Keep in mind, the notifications must be precise and meet certain statutory requirements.

Unfortunately, even with planning, a cyberattack can still happen. Be prepared by having a disaster plan ready, and be sure to include the proper steps for employees to take both during and after an attack. Review the plan as an internal team frequently to ensure that everyone has a clear understanding of timelines and responsibilities. Time is of the essence during a data breach, and having a disaster plan prepared will make that stressful time more efficient.

To learn more, contact an attorney at Fraser Trebilcock at 517.482.5800 or by clicking here to fill out this form on our website.


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Business Legal Compliance Checklist

A critical overview of laws and regulations governing businesses of all sizes.

Download the Checklist

New Overtime Pay Rules

On September 24, 2019, the U.S. Department of Labor announced a final rule to make 1.3 million American workers newly eligible for overtime pay. The new rule is effective January 1, 2020 and includes the following changes to overtime rules:

  • Raise the salary level from the current $455 per week to $684 per week (or $35,568 per year for a full-year worker);
  • Raise the total annual compensation level for highly compensated employees from the current $100,000 per year to $107,432 per year (with a minimum weekly salary of at least $684);
  • Allow employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the salary level; and
  • Revise the special salary levels for workers in US territories and in the motion picture industry.

Of note, this final rule did not change the “duties test” for any exemption.

This message is a brief summary of a complex series of laws, rules and regulations. Please contact Edward Castellani at 517-377-0845 or ecast@fraserlawfirm.com, or David Houston at 517-377-0855 or dhous@fraserlawfirm.com with any questions.

The “New” IRS Independent Contractor Test – The More Things Change the More They Stay the Same

OVERVIEW

Proper characterization of workers as independent contractors or employees is a question that crosses many areas of substantive state and federal law, prominently federal tax law.

IRS Publication 15-A, Employer’s Supplemental Tax Guide (2020) (Dec 23, 2019), https://www.irs.gov/pub/irs-pdf/p15a.pdf (“Pub. 15-A”) announces relevant new or changed standards to be used by the Internal Revenue Service in making these determinations for tax year 2020. Pub. 15-A announces a policy of the IRS to focus on three “areas” of criteria in applying the preexisting “control test.” Significantly, the fundamental “control test” and its prior explication set out by the Service in the so-called “20 Factor” test remain valid.

Pub. 15-A also announced a new reporting form for mandatory employer use in reporting of workers determined to be independent contractors.

For completeness, I note that Pub. 15-A also discusses the threshold determination of “Who Are Employees?” and outlines the four types of business relations between the employer and persons performing services, which are:

  • Independent contractor;
  • Common-law employee;
  • Statutory employee; or,
  • Statutory non-employee.

See, Pub. 15-A pages 5-7, including examples of each.

Additional resources and comments are included in the last section below.

1. CONTROL TEST, REDUX

It is of course an understatement to say that there are multiple tests and lists of criteria for characterization of a worker as an employee or independent contractor, developed under the Internal Revenue Code for revenue purposes, under other federal laws for other regulatory purposes, and under state law for purposes arising otherwise. (The scope of Michigan or other state law is beyond this Note).

The thrust of Pub. 15-A appears to bring some additional order or guidance to preexisting criteria, and not to change those criteria or tests.

Under Pub. 15-A, the overarching issue in determining whether a worker is an employee or independent contractor remains the level of authority the employer retains to direct and control the worker’s activities. “In any employee-independent contractor determination, all information that provides evidence of the degree of control and the degree of independence must be considered.” Pub. 15-A p. 7 “Common-Law Rules” section. See generally, Pub. 15-A pp. 7-10.

The 20-Factor Test Remains Valid. The longstanding “20 factor” test to distinguish an independent contractor from an employee, set forth in Rev. Rul. 87-41, remains valid.

“Grouping” of Factors. Effective January 1, 2020, the IRS will “group” factors and focus on three areas of the control test:

  • Behavior Control;
  • Financial Control; and,
  • The type of relationship of the parties.

Pub. 15-A provides:

Behavior Control. Facts that show whether the business has a right to direct and control how the worker does the task for which the worker is hired include the type and degree of:”

  • Exercise of direction over time and place and sequence or means of work;
  • Whose instrumentalities (tools or equipment) are used;
  • Engagement of other workers;
  • Whether specific duties are assigned to a specific worker;
  • Instructions that the business gives to the worker;
  • Training that the business gives to the worker.

Financial control. Facts that show whether the business has a right to control the business aspects of the worker’s job include:”

  • Who pays unreimbursed business expenses;
  • The extent of the worker’s investment in facilities or tools used;
  • The extent to which the worker makes the services available to the relevant market;
  • How the business pays the worker (salary or wage vs. fee-based);
  • The extent to which the worker realizes profit or loss.

Type of relationship. Facts that show the parties’ type of relationship include:”

  • Existence and terms of a written contract;
  • Provision of benefits to worker;
  • Permanency of relationship;
  • Whether the services involved are a regular business activity of the employer.

2. NEW REPORTING REQUIREMENT

The 1099-MISC form previously used for reporting of independent contractor compensation has been a confusing “collection bin” for various characterization and reporting issues beyond that status. For tax year 2020, Employers are required to use a new reporting form, 1099-NEC Nonemployee Compensation, replacing the prior 1099-MISC to report compensation payments to persons the employer elects to characterize as independent contractors. See, About Form 1099 NEC, Nonemployee Compensation, https://www.irs.gov/forms-pubs/about-form-1099-nec, and form 1099-NEC, available at https://www.irs.gov/pub/irs-pdf/f1099nec.pdf.

3. FURTHER CONSIDERATIONS

Workers Misclassified? What to Do? The IRS Voluntary Classification Settlement Program provides guidelines to be followed by employers wishing to reclassify workers for future tax periods. See, Pub. 15-A p. 7 and Voluntary Classification Settlement Program. https://www.irs.gov/businesses/small-businesses-self-employed/voluntary-classification-settlement-program.

Relief from Liability for Mischaracterization. Unchanged by Pub. 15-A, the IRS provides potential “safe harbor” relief from liability arising from mis-characterization and mis-reporting under Section 530 of the Revenue Act of 1978, P.L. 95-600. The reporting business must meet all of the following:

  • Reporting consistency;
  • Substantive (fact) consistency; and,
  • Reasonable basis for the characterization.

See, Publication 1976, Do You Qualify for Relief Under Section 530? At https://www.irs.gov/pub/irs-pdf/p1976.pdf.

Department of Labor Test For FLSA. The Fair Labor Standards Act (FLSA) overtime and minimum wage requirements do not apply to independent contractors. The DOL website comments that a worker may be properly characterized as an independent contractor under other statutory schemes, but not for FLSA enforcement purposes. See, Get the Facts on Misclassification Under the Fair Labor Standards Act, https://www.dol.gov/whd/workers/Misclassification/misclassification-facts.pdf. The DOL notes that proper classification depends on the totality of the circumstances of the activity or situation, not a specific rule or test. See, DOL Fact Sheet 13, Employment Relationship Under the Fair Labor Standards Act (July 2008), https://www.dol.gov/agencies/whd/fact-sheets/13-flsa-employment-relationship.

If you have any questions on these changes, please contact Dave Houston at 517.377.0855 or dhouston@fraserlawfirm.com.


Fraser Trebilcock Shareholder Dave Houston has nearly 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

Michigan Court of Appeals Invalidates Lame Duck Laws Restricting Voter Initiatives

Act No. 608 of the Public Acts of 2018, approved and given immediate effect in that year’s lame duck session, amended several provisions of the Michigan Election Law to create new more restrictive procedural requirements governing voter initiatives proposing initiated laws, constitutional amendments, and referendum of legislation. Most notably, the act required that no more than 15% of the petition signatures used to determine the sufficiency of support for an initiative petition may be provided by voters in any single congressional election district – a restrictive requirement finding no support in the governing constitutional language. Other new provisions required that initiative petitions include a check box to identify petition circulators as volunteers or paid circulators and required paid circulators to file an affidavit identifying themselves as such before circulating petitions for voter signatures.

This legislation has been widely criticized as an impermissible attempt to limit the People’s constitutionally-reserved right to pursue voter initiatives proposing amendment of the Constitution, adoption of initiated laws, and referendum of enacted legislation. The new restrictions pertaining to the collection of petition signatures were particularly problematic in light of abundant case law from our Supreme Court holding that the Legislature may not impose statutory restrictions that curtail or unduly burden the free exercise of the People’s constitutional right to pursue voter-initiated proposals. Thus, it came as no surprise that the constitutional validity of this new legislation has been challenged in the courts.

On January 27, 2020, the Michigan Court of Appeals issued its published decision addressing the constitutional challenges to 2018 PA 608 in the consolidated cases of League of Women Voters, et al. v Jocelyn Benson and Senate and House of Representatives v Jocelyn Benson.  (Court of Appeals Docket Nos. 350938 and 351073) In an Opinion written by Judge Deborah Servitto and joined by Judge Michael Gadola, the Court affirmed the decision of Court of Claims Judge Cynthia Stephens holding that the new 15% limitation on petition signatures collected from any single congressional district and the new requirement that petitions include a check box identifying the circulator as a paid or volunteer circulator are unconstitutional and therefore cannot be enforced. The Court of Appeals also agreed with the League of Women Voters and the Secretary of State that the new requirement for paid circulators to file an affidavit identifying themselves as paid circulators before circulating petitions is also unconstitutional and therefore cannot be enforced, reversing Judge Stephens’ decision to the contrary.  And like Judge Stephens, the Court of Appeals majority found that the Michigan Senate and House of Representatives lacked standing to pursue their claim for declaratory relief but received their briefs and considered their arguments in support of the legislation, nonetheless.

Judge Mark Boonstra wrote a separate Opinion concurring in part and dissenting in part. He disagreed with the majority’s holding that the Legislature lacked standing to present its claims and its conclusion that the new check box requirement was unconstitutional but agreed that the new 15% signature limitation and the affidavit requirement were unconstitutional and could not be enforced.

Secretary of State Benson had joined the League of Women Voters in challenging the constitutionality of Act 608, and thus, the Senate and House of Representatives are the only parties that will have cause to seek further review in the Supreme Court.  The Supreme Court, which had previously called for an expedited adjudication of this matter, has ordered that any application for leave to appeal this decision of the Court of Appeals to that Court must be filed no later than Monday, February 3rd.,  so it will soon become known whether further review of this matter will be pursued.


Graham K. Crabtree has been an appellate specialist in the Lansing office of Fraser Trebilcock since 1996. He was previously employed as Majority Counsel to the Judiciary Committee of the Michigan Senate from 1991 to 1996 and has been a member of the State Bar Appellate Practice Section Council since 2007.

Client Reminder: Form W-2 Reporting Due for Employer-Provided Health Care / Disclosure Due to CMS for Medicare Part D

Upcoming Deadlines: (1) Form W-2 Reporting of Employer-Provided Health Coverage; And (2) Medicare Part D Notices to CMS


Reminder: Form W-2 Reporting on Aggregate Cost of Employer Sponsored Coverage

Unless subject to an exemption, employers must report the aggregate cost of employer-sponsored health coverage provided in 2019 on their employees’ Form W-2 (Code DD in Box 12) issued in January 2020. Please see IRS Notice 2012-09 and our previous e-mail alerts for more information.

The following IRS link is helpful and includes a chart setting forth various types of coverage and whether reporting is required: http://www.irs.gov/Affordable-Care-Act/Form-W-2-Reporting-of-Employer-Sponsored-Health-Coverage. Please note this is a summary only and Notice 2012-09 should also be consulted. The IRS has issued questions and answers regarding reporting the cost of coverage under an employer-sponsored group health plan, which can be found here: https://www.irs.gov/newsroom/employer-provided-health-coverage-informational-reporting-requirements-questions-and-answers.

If you have questions regarding whether you or your particular benefits are subject to reporting, please feel free to contact us.

Deadline Coming Up for Calendar Year Plans to Submit Medicare Part D Notice to CMS

As you know, group health plans offering prescription drug coverage are required to disclose to all Part D-eligible individuals who are enrolled in or were seeking to enroll in the group health plan coverage whether such coverage was “actuarially equivalent,” i.e., creditable. (Coverage is creditable if its actuarial value equals or exceeds the actuarial value of standard prescription drug coverage under Part D). This notice is required to be provided to all Part D eligible persons, including active employees, retirees, spouses, dependents and COBRA qualified beneficiaries.

The regulations also require group health plan sponsors with Part D eligible individuals to submit a similar notice to the Centers for Medicare and Medicaid Services (“CMS”). Specifically, employers must electronically file these notices each year through the form supplied on the CMS website.

The filing deadline is 60 days following the first day of the plan year. If you operate a calendar year plan, the deadline is the end of February. If you operate a non-calendar year plan, please be sure to keep track of your deadline.

At a minimum, the Disclosure to CMS Form must be provided to CMS annually and upon the occurrence of certain other events including:

  1. Within 60 days after the beginning date of the plan year for which disclosure is provided;
  2. Within 30 days after termination of the prescription drug plan; and
  3. Within 30 days after any change in creditable status of the prescription drug plan.

 The Disclosure to CMS Form must be completed online at the CMS Creditable Coverage Disclosure to CMS Form web page at:
https://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/CCDisclosureForm.html.

  1. The online process is composed of the following three step process: Enter the Disclosure Information;
  2. Verify and Submit Disclosure Information; and
  3. Receive Submission Confirmation.

The Disclosure to CMS Form requires employers to provide detailed information to CMS including but not limited to, the name of the entity offering coverage, whether the entity has any subsidiaries, the number of benefit options offered, the creditable coverage status of the options offered, the period covered by the Disclosure to CMS Form, the number of Part D eligible individuals, the date of the notice of creditable coverage, and any change in creditable coverage status.

For more information about this disclosure requirement (instructions for submitting the notice), please see the CMS website for updated guidance at: https://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/CCDisclosure.html.

As with the Part D Notices to Part D Medicare-eligible individuals, while nothing in the regulations prevents a third-party from submitting the notices (such as a TPA or insurer), ultimate responsibility falls on the plan sponsor.

This email serves solely as a general summary of the Form W-2 reporting requirements and CMS disclosure for Medicare Part D.


Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Congress Passes SECURE Act

Yesterday (December 19, 2019), Congress finally passed the Setting Every Community Up for Retirement Enhancement Act (i.e., the “SECURE Act”), and President Trump is expected to sign it. The SECURE Act was previously passed by the U.S. House of Representatives in May on a 417-3 vote, but got held up in the Senate for political reasons, even though it enjoyed virtually unanimous support there as well.

The version of the Act that was eventually passed includes only minor changes from the version that the House passed in the Spring. This legislation is the most significant change to the laws governing retirement plans since the Pension Protection Act of 2006. Among the significant changes made by the SECURE Act are:

  • Relaxation of the rules governing eligibility to participate in a multiple employer retirement plan, which will make it easier for unrelated employers to participate in the same plan (also known as “Open MEPs”).
  • Increase in the age for required minimum distributions (“RMDs”) from 70½ to 72.
  • Required retirement plan eligibility, at least for elective deferral purposes, for long-term part-time employees who work at least 500 hours during each of three consecutive years. The Act does contain nondiscrimination testing relief with respect to these individuals.
  • Relaxation of certain timing and notice rules relating to safe harbor 401(k) plans.
  • Penalty-free distributions from qualified retirement plans for births and adoptions.

These changes, and others included in the SECURE Act, will have a major impact on both plan sponsors and participants, and will eventually require plan amendments. These changes will also have a significant impact on existing and future estate plans that involve retirement plan assets. Most of the changes are effective January 1, 2020, and thus will require almost immediate changes to plan administration.

If you have any questions about the upcoming changes made by the SECURE Act, please contact Brian Gallagher at (517) 377-0886 or bgallagher@fraserlawfirm.com.


Brian T. Gallagher is an attorney at Fraser Trebilcock specializing in ERISA, Employee Benefits, and Deferred and Executive Compensation. He can be reached at (517) 377-0886 or bgallagher@fraserlawfirm.com.