retirement plans | Fraser Blog

CARES Act Relaxes Rules Regarding 2020 Retirement Plan Distributions

On Friday, the House of Representatives passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) in dramatic fashion, with several members racing back to Washington after Representative Thomas Massie threatened to demand a recorded vote. The legislation (which had been previously passed on a unanimous vote by the Senate earlier in the week) was signed by President Trump shortly thereafter.

The CARES Act is the third extensive—roughly $2 trillion dollar—emergency relief package with numerous components designed to mitigate the rapid and sudden fallout from the COVID-19 pandemic. Among its 880 pages are a few changes that loosen the requirements applicable to distributions from retirement plans for 2020:

Retirement plans may permit individuals to take a “coronavirus-related distribution” of up to $100,000 in 2020, which will be exempt from the 10% early distribution penalty. In addition, individuals taking such distributions may pay tax on them ratably over three years and may repay them within a three-year period. Individuals will be eligible for such a distribution if they (or their spouse or dependent) test positive, or if they experience adverse financial consequences as a result of COVID-19 due to being quarantined, furloughed, laid off, having work hours reduced, being unable to work due to lack of child care, or closing or reducing hours of a business owned or operated by the individual (a “qualified individual”). A plan administrator may rely on a participant’s certification that he or she is a qualified individual. Plans that may offer these distributions include qualified defined contribution plans, 403(b) plans, governmental 457(b) plans, and IRAs. Although more clarification would be welcome, these rules are structured similarly to the new “qualified birth or adoption” rules under the recently-passed SECURE Act. As such, the availability of these distributions appears to be an optional plan provision.
With respect to participant loans taken within 180 days following passage of the CARES Act, the limits on permissible plan loans has been increased from $50,000 to $100,000 and from half of the participant’s vested account balance to the entire vested account balance. In addition, with respect to any qualified individual (as defined in the previous bullet) with an outstanding loan, any payments due during the remainder of 2020 are delayed by one year. It is our understanding that offering loans up to the increased limits is optional (as is offering loans at all); whether plan sponsors will be required to offer delayed repayment to affected individuals is less clear, but this aspect is likely mandatory.
Required minimum distributions (RMDs) are waived for 2020. This includes individuals who attained age 70½ in 2019 and did not take their first RMD prior to January 1, 2020. Impacted plans again include qualified defined contribution plans, 403(b) plans, governmental 457(b) plans, and IRAs. Though more guidance is needed on implementation, we expect this temporary waiver to operate similarly to the 2009 waiver under WRERA. If that is the case, plan sponsors would be able to determine whether they would offer the 2020 RMD waiver, and if so, what the default will be (i.e., to receive or not receive an RMD).

The CARES Act includes a delayed amendment deadline for the above changes set at the last day of the plan year beginning on or after January 1, 2022 (i.e., December 31, 2022 for calendar year plans). Governmental plans have two additional years.

Along with the above changes, the CARES Act contains some funding relief for sponsors of qualified defined benefit plans. Specifically, the Act delays minimum funding contributions otherwise due during calendar year 2020 until January 1, 2021 (though delayed contributions will be subject to an interest adjustment). In addition, the CARES Act permits plan sponsors to elect to treat the AFTAP for the last plan year ending before January 1, 2020 as the AFTAP for plan years which include calendar year 2020. This will help many plans avoid funding-based benefit limitations (including the inability to pay lump sums) that might otherwise come into play.
Finally, the CARES Act provides authority for the DOL to delay ERISA filing deadlines due to public health emergencies. Though the Act itself does not provide any delay, we anticipate that forthcoming DOL guidance will do so.

If you have any questions on how the CARES Act (or any other COVID-19 developments) may impact your organization’s retirement plans, please contact Brian Gallagher at 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.

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.

Attorney Elizabeth Latchana honored among Michigan’s ‘Women in the Law’

When the entire country was seeking to understand and respond to the myriad of employee benefit changes, mandates and associated penalties accompanying the passage of the Patient Protection and Affordable Care Act, Fraser Trebilcock attorney Elizabeth Latchana stepped up to the challenge and became a leading advisor to employers of all sizes across the state of Michigan – and beyond.

“Her dedication to providing clients and the community with the most current information and updates has inspired one of the most active blogs for this legal practice in the state of Michigan,” said Fraser Trebilcock President Brian Morley. “With the proposed changes under the new administration and, for that matter, all future administrations that may aim to continue tweaking or outright changing the laws, Beth’s legal guidance and leadership will be needed for many years to come. We are grateful to have her experience on our side at Fraser.”

Beth found her niche in the transactional health and welfare employee benefits practice just a few years into her legal career. “With the incredible training and assistance of my predecessor and others, I was able to learn, grow, and expand Fraser’s health and welfare employee benefits practice area, sevenfold, and am sincerely honored to have received some accolades along the way,” she says.

Selected in 2015 as “Lawyer of the Year” for Employee Benefits (ERISA) Law in Lansing by Best Lawyers, the Genesee County native has achieved an AV Preeminent peer review rating by Martindale-Hubbell, and continues to be selected by Leading Lawyers and Best Lawyers. Her most recent accolade is selection as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly, and she will be among those honored at a Sept. 7 luncheon in Troy.

When the graduate of Alma College and University of Notre Dame Law School first joined Fraser Trebilcock as an associate, she set a number of goals, from hitting certain billable hour thresholds, to attaining shareholder status, to growing a client base and expanding her practice, to serving on the Board of Directors, all while volunteering in the community and raising a family.

“Nearly 19 years later, I’m happily still a member of the Fraser Trebilcock family, and I’m pleased to say I’ve met each one of my goals,” she says. “I’m proud of my longevity at this great law firm and happy to be of service to it.”

A vice president on Fraser Trebilcock’s Board of Directors, co-chair of the Employee Benefits practice, and an employee benefits coordinator, Latchana became a leading advisor to employers following the passage of the Patient Protection and Affordable Care Act.

She recalls a tip from a senior associate in the early years: make the boss’ job easier. “It led me to focus on working as a team, not just completing a legally correct and hopefully impressively shiny project, but going the extra mile to reach beyond the assignment to simplify the shareholder’s own work,” she says.

“I’ve taken that advice to heart to this day, now with my own clients, helping navigate them through legal hoops and finding creative solutions while ensuring this is done in a way to allow them to focus on what’s most important to them, their own business. I’m able to use creative thought to develop solutions for clients while ensuring they are complying with the plethora of legal mandates thrown at them in the ever-evolving world of employee benefits.”

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The legal industry is one which focuses on serving others, which Beth feels drawn to. Giving of oneself to the assistance and hopefully betterment of others is, she says, what life is all about. “As lawyers, we are held to incredibly high ethical and professional standards, as well as displaying an excellent work ethic. We have been trained this way, and it is ingrained in our very being. Therefore, it’s almost impossible for these standards not to trickle over in one’s personal life and activities, and in all ways we serve.”

With her own legal practice in the health and welfare benefits arena, she is able to use creative thought to develop solutions for clients while ensuring they are complying with the plethora of legal mandates thrown at them in the ever-evolving world of employee benefits. “My goal is serve my clients in a way that allows them to have full confidence in their benefit structure so they can focus on their own business…”

Personally, her practice has enabled her to balance professional life with things she enjoys outside of work. A mother of three, Latchana serves as being a role model for youth and assists her community through activities including participating in alumni career fairs, coaching and managing youth in various recreational sports leagues, assisting with creating a community dog park, organizing and collecting donations for local shelters, or serving in leadership capacities of local non-profit organizations, most recently the Board of Directors for the Food Bank of Eastern Michigan.

And if Beth commits to something, she utilizes those high standards she was taught to ensure the task is completed to the best of her ability, no matter the subject.

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