Final Regulations Regarding Fee Disclosures

The compliance deadline for the final regulations issued by the Department of Labor regarding the disclosure of fees and any related information by retirement plan service providers to plan fiduciaries is July 1, 2012. All plan sponsors and plan administrators should be aware of these regulations.

The regulations, referred to as the Final Sponsor Fee Disclosure Regulation under the Employee Retirement Income Security Act (ERISA), applies to defined benefit plans covered under ERISA and defined contribution pension plans. The final regulations require that covered service providers (CSP), expected to receive at least $1,000 in compensation for services to a covered plan, provide responsible fiduciaries with the information required in order to:

• Assess reasonableness of total direct and indirect compensation received by the CSP and its affiliates;
• Identify conflicts of interest; and
• Satisfy disclosure requirements under Title 1 of ERISA.

The regulations consider a CSP to be:

• ERISA fiduciary service providers to a covered plan or to a “plan asset” vehicle in which a plan invests;
• Investment advisors registered under State or Federal law;
• Record-keepers or brokers who make designated investment alternatives available to a covered plan;
• Providers of one or more of the following services to the covered plan who also received indirect compensation in connection with such services:
o Accounting, auditing, actuarial, banking, consulting, custodial, insurance, investment advisory, legal, recordkeeping, brokerage of securities, third-party administrators, and valuation services.

Information required to be disclosed by a CSP must be furnished in writing to a responsible plan fiduciary for the covered plan “reasonably in advance” of the date the contract is entered into, extended, or renewed. For contracts entered into prior to July 1, 2012, the CSP must provide this information to plan fiduciaries prior to July 1, 2012. The information may be provided via electronic means, such as a website, provided that website is readily accessible to the plan fiduciary and that the information needed to access the information electronically has been communicated to the plan fiduciary.

In turn, plan fiduciaries are required to provide fee disclosure statements to plan participants no later than 60 days after the CSP disclosure deadline of July 1, 2012. As a plan sponsor / administrator, you should, if you haven’t already, start considering how you will be providing this information to your participants in order to meet the deadline.
Joe Goodmiller

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Investment Choice Fees

There are two types of fees that may be charged to your retirement plan that are different from administrative fees.  These fees are usually in connection with investment choices that are made available to participants.

One type of fee is known as the sales charges.  You may also hear these sales charges referred to as loads or commissions.  These are the transaction fees that are charged to the investment that originate from cost of buying and selling shares of the investment.  Depending on the product you are investing in – these fees will be computed in different ways.

The second type of fee is the management fee.  You may also hear this fee called the investment advisory fee or account maintenance fee.  These are the fees that are charged for the management of the assets that are included in the investment fund.  Something you should be aware of with these particular fees is that the more management, research and monitoring an investment must have, the higher the fee, however, this does not necessarily mean the specific investment will perform better than other investments.  These fees often vary widely depending on who the investment manager is and what the investment product is that is being offered.

The two fees above are usually charged to all investment packages in your retirement plan.  In addition to those above, there are several fees that may occur due to a specific type of investment that is being offered.  You will see that most investments that are offered by smaller plans are pooling money from a large number of investors.  This makes it possible for the smaller plans to diversify their investments and benefit from the economies of scale with a lower transaction cost.  The pooled funds can be invested in stocks, bonds, real estate, etc. These pooled accounts are usually offered by financial institutions such as banks, insurance companies, or mutual funds and fees related to the investments are charged as a percentage of assets invested and they are paid by the participants or the plan depending on how the plan fiduciary sets up the retirement plan with the institution.

Mutual funds pool the money of many investors and invest in a specific fund.  The investments are managed by an investment advisor following a specific investment plan and fees are typically investment management fees as well as administration fees.  Additionally, you may find that with some mutual funds you will be charged sales charges (see above).  The sales charges for investing in mutual funds may be charged up front which will lower the amount of your investment in the fund or on the back end which will be charged when you sell the investment.  The back end charges are also known as back-end load, deferred sales charge, or redemption fees). They are generally determined on how long you keep the investment and some even decrease and eventually disappear over time. Another type of fee you may see with mutual funds are known as 12b-1 fees which are ongoing and paid out of fund assets. These fees could be used to pay commissions to brokers, pay advertising fees for promoting the fund to investors, and to pay other service providers.

Collective investment funds are trust funds that are managed by banks or a trust company that will take all of the investments and pool them.  Each investor has a proportionate interest in the assets depending on how much your particular investment is when compared to the total amount of the assets held in the collective investment fund.  There are no front end or back end charges as you see in mutual funds however, you will be paying investment management and administration expenses.

Insurance companies will offer a range of investment alternatives for a retirement plan through something known as a group variable annuity contract which is between the insurance company and the employer on behalf of the plan. These contracts will incorporate insurance options that are not seen when investing in other investment options.  Some of the insurance options most commonly seen in these contracts include annuity features, interest and expense guarantees, and any death benefit provided during the term of the contract. These contracts “wrap” around investment alternatives which are often a selection of mutual funds from which the participants will select and will see returns to their individual accounts based on their choices of investments.  You will see additional fees with this type of investment in addition to the investment management and administration fees that include insurance-related charges and surrender and transfer charges.  Insurance-related charges include items such as sales expenses, mortality risk charges, and cost of issuing and administering the contracts (basically anything related to the insurance component of the contract).  Surrender and transfer charges are fees that may be charged when employees terminate a contract (withdraws from the plan’s investments). These charges are often incurred if the event happens prior to a specific date that is set within the contract and will eventually disappear over time.

Pooled guaranteed investment contract (GIC) funds are a common fixed income investment option which generally includes a number of contracts issued by an insurance company or bank paying an interest rate that is blending fixed interest rates from many various GICs into a pool. Generally, there are only investment fees and administrative fees associated with pooled GIC funds.

As you can see, there are many fees that are included with various types of investments.  The above investment listing is not an all-inclusive list and you may be offered other investment options when looking into ways to offer investments in your retirement plan.  Hopefully this has helped give you some insight into what fees may be charged with various plan investments you offer your participants.  For more information, talk to the third party administrator of your plans and educate yourself of the fees being charged to your participants and the plan itself. 

Shelby Williams

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Where Should an Employer Look for Benefit Plan Fraud?

Employee benefit plans are often a side note in the day-to-day transactions of a business, lacking the constant oversight and review given to the operational activities.  Also, benefit plans involve the majority of the employees in a company in some way or another.  These and many other reasons make benefit plans susceptible to fraud. 

As auditors we look for financial statement fraud and misappropriation of assets.  An employer may be more concerned with the later. So where should an employer look for fraud in a benefit plan?  The three following areas will be a good place to start:

1. Distributions – Fraudulent distributions can be the product of an employee requesting an inappropriate distribution.  For example, documentation proving financial hardship could be forged to receive a hardship distribution. An employee may also request a loan larger than allowed under the plan document.  In both cases, close review of all distribution requests will limit the possibility of fraud.

More worrisome than fraudulent requests are fraudulent distributions made by a plan administrator.  For example, an administrator could request a distribution of funds for a former employee with an undistributed account balance after changing address and beneficiary information in the account. The best way to protect against this type of fraudulent disbursement is with segregation of duties. Typically when fraud like this occurs, it is a direct result of one employee having too much access and responsibility.

2. Contributions – Contribution fraud is often much easier to commit than distributions fraud.  For example, a payroll clerk who prepares payroll and manages submission of contributions could re-allocate deferrals from other employees’ paychecks to his or her own contribution. 

In many small companies, the same person may prepare payroll and prepare the submission of the employee contributions.  Once again, segregation of duties will prevent or detect fraud in most cases.

3. Eligibility – Plan administrators who have control over employee records can easily manipulate data regarding eligibility. For example, an administrator could make an employee eligible early for a plan in exchange for some sort of consideration.  Even more troubling, a plan administrator could set up a fictitious employee in the company payroll and begin deferrals from the employee’s paycheck.  The paycheck could be small enough to go unnoticed in budget analysis but the deferral to the fictitious employee’s account could be a large portion of the paycheck.

Once again, segregation of duties will prevent the majority of fraud associated with eligibility.

There are many ways to commit fraud, however, in an environment with strong internal controls and segregation of duties, the task becomes much harder. No matter the size of your organization, try to divide some key tasks mentioned above, and sleep a little easier.

Rex Platt

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Important Sections for Plan Management in the 401(k) Audit Management Letter

In a previous blog post I discussed several different kinds of written communications that occur during a 401(k) audit. The last written communication received during the audit is the management letter. As described below there are several important sections in this letter that Plan management should pay particular attention to when they receive the management letter. 

One section that is important for Plan management to review is where the auditor describes any new accounting policies that were adopted during the year that was reflected in the financial statements. In addition, Plan management should note and understand if there is any accounting estimates or financial statement disclosures that are particularly sensitive because of their significance to the financial statement users.

Another section of the letter includes a summary of the corrected and uncorrected misstatements that the auditor found during the 401(k) audit. This section is important for Plan management to understand due to the effects these adjustments have on the financial statements and if these adjustments indicate that an improvement should be made within the Plan to prevent a similar adjustment from occurring in the future.

This letter also contains matters that your auditor may have become aware of during the 401(k) audit related to the Plan’s internal control processes that could be considered a material weakness, significant deficiencies or another recommendation that your auditor believes could help improve Plan operations.

We recommend that Plan management should review the prior year’s management letter prior to the start of the upcoming December 31, 2011 401(k) audit in order to ensure that any improvements or changes that Plan management feels is appropriate has been implemented and that you are ready to discuss these changes with your auditor.

Kim Lubbers, CPA

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Annual 401(k) Benchmarking Survey: 2011 Edition

For the eleventh year, Deloitte has surveyed 401k sponsors for trends and new plan features.  The 2011 survey was taken last summer and revealed some of the same hot topics from prior years plus some new ones.  A summary of areas of interest are as follows:  (The entire survey results can be found at Annual 401(k) Benchmarking Survey)

Hot Topics
• 79% of sponsors agreed that fees and fees disclosures are important
• The topic that received the highest rating of importance by plan sponsors was “Providing the right investments to help participants achieve retirement goals”

Eligibility and enrollment
• 60% of respondents have no service requirements for eligibility
• 55% of respondents had participation rates of over 80%
• 56% of respondents offer auto enrollment (up from 49% in 2010 and only 14% in 2000)
• Of the respondents with automatic enrollment, a majority believed that the automatic enrollment feature have had a positive impact on average contribution rate, plan participation rates, nondiscrimination rates and participant awareness.
• 70% of plans had an average participant age of 41-50 years old.  This is up from 66% of plans that had this as an average age in 2010.

Contributions
• 30% of responding plans have an automatic increase of contribution percentage that is not tied to an automatic enrollment.  However of the plans that offer this “step-up” the majority had less than 10% participating in the program.
• The average deferral percentage for non-highly compensated participants for 68% of responding plans was between 4 and 8%.
• 93% of responding plans offer some type of employer match or profit sharing contribution
• 77% of responding plans did not change and are not considering a change to the company’s matching formula.

Investments
• 90% of plans offered at least 27 investment options in their plans
• While 50% offered investment advice to all participants, of the plans that didn’t offer advice, 42% cited that potential fiduciary liability as the reason for not offering the advice.
Fees
• A majority of plans (59%) have all fees paid through investment revenue.  Of the plans where the investment revenue is not enough to cover all costs, a majority pay the additional fees by the company.

Plan overall issues
• 74% of respondents believed that their 401(k) plan was helpful in retaining existing employees
• Even more (80%) believed that their plan was an effective recruiting tool.
As 401(k) plans become an increasingly critical piece of this nation’s retirement plan, it is prudent to keep informed on the trends and new options becoming available to them.

Kim Lubbers, CPA

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Need Help Completing Your Voluntary Correction Program Submission?

The Voluntary Correction Program (VCP) allows a plan sponsor to pay a limited fee and receive the IRS’s approval of the correction while also remaining a qualified plan.  The VCP program is not a program used by those who have already had an examination by the IRS and must correct the error, but for the plan sponsor who has found errors and wishes to correct them and pay the fee themselves.  VCP provides the general procedures for correction of all qualification failures of the plan including operational, plan document, demographic, and employer eligibility.

Many times, the plan sponsor is unsure as to what is being asked for in the application for the VCP submission.  The IRS has recently completed a video walking through the submission process. The video does a great job of walking the plan sponsor through the application step by step.  See below video if you need guidance on completing your VCP submission.

http://www.irsvideos.gov/SmallBusinessTaxpayer/RetirementPlans/TipsForVCPSubmission

Shelby Williams

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Another Reminder of Fiduciary Responsibility

A recent court ruling found the trustee of a 401(k) plan in violation of his fiduciary duties for not honoring a direct rollover request submitted by a former employee (Klepeis v. J&R Equipment, Inc.). According to court documents, the suit claimed that the owner of J&R Equipment and sole trustee of the plan failed to submit the rollover request to the third-party administrator and the plaintiff did not receive the rollover distribution on the date he would have been entitled to it, which was his next anniversary date per the plan document. The trustee argued that the request was not in proper form; therefore, did not submit it to the TPA. The trustee also rejected a subsequent rollover request from the plaintiff on the basis that it was received after the valuation year.

Also according to court documents, both arguments made by the trustee were not supported by the plan document. The terms of the plan did not require formal claims for withdrawals and the plan document did not state that rollover requests must be received prior to the close of the valuation year. So, if you are a plan fiduciary, what can you take from this ruling?

If you have fiduciary responsibility over a 401(k) plan, get to know your plan document very well and administer the plan accordingly. In the unfortunate scenario that you are presented with litigation, any argument made on your behalf should be supported by the plan document.

Joe Goodmiller

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Auditor Communications During a 401k Audit

During your 401k audit there are several different written communications that you and your auditor will have throughout the audit process.  These written communications will be briefly described in the below paragraphs.

The first written communication that your auditor will send you before the beginning of the 401k audit will be the engagement letter. This letter describes what the Plan’s management is responsible for and also what the auditor is responsible for during your 401k audit. In addition, the engagement letter describes what the fee for the engagement is expected to be.  This letter needs to be signed by Plan’s management and returned to your 401k auditor.

The next written communication that your auditor will send you is near the end of your 401k audit and is called the management representation letter. This letter includes all of the representations that management is making to the auditors about the financial statements, corrected and uncorrected financial misstatements, the completeness of the information provided during the audit, significant estimates known to management and any knowledge of allegations of fraud, just to mention a few of the many items covered in this written communication. Like the first letter mentioned above this letter must be signed by Plan’s management and needs to be returned to your 401k auditor before the financial statements are issued.

The last written communication received during the audit is the management letter that contains matters that the auditor may have become aware of during the 401k audit related to the Plan’s internal control processes that could be considered a material weakness, significant deficiencies or another recommendation that your auditor believes could help improve Plan operations. This letter is signed by your 401k auditor and is addressed to the Plan’s management.

Kim Lubbers, CPA

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Leased Employees – Do You Have Them?

The Employee Plans Compliance Unit (EPCU) – has recently completed a project on how benefit plan’s are treating leased employees in regards to qualified plan purposes.  What is a leased employee you may ask? 

According to the IRS, a leased employee generally is an employee meeting each of the following attributes:

1) Agreement – agreement for services of the leased employee is dictated via an agreement with a 3rd party employee leasing company.
2) Service – service hours must be comparable to that of what a regular company employee would work in the similar job position (but not less than 500hrs in a year). (there are certain exceptions to the service hours rules)
3) Control – generally, if the recipient company a) dictates when, where, and how the leased employee will perform the service, b) dictates which employee must do the job, and c) supervises the lease employee, then control is possessed by the recipient company.

The EPCU’s findings were that a majority of Plans that identified themselves as utilizing leased employees had incorrectly checked the box “yes” on the Form 5500 filing.  Others in the study identified that they did utilize leased employees and appropriately included them in their census for qualified plan purposes. 

So what does all this mean for you, and what is the importance of correctly identifying a leased employee? 

When a qualified plan has leased employees, those leased employees must be treated as common law employees for purposes of the following significant factors (but not limited too):
1) Plan eligibility
2) Nondiscrimination testing, including Top-Heavy testing
3) Vesting
4) Contributions and Benefits
5) Compensation (especially for ESOPs)

One major consequence of not properly including leased employees for the above factors, would be the fees incurred to correct the Plan, including any contributions required to make the leased employees whole (which usually entails, making contributions for the time the leased employee was available to be a plan participant). 

Plans are able to amend their Plan Documents to exclude leased employees from the above factors, but must make sure they have the proper amendments in place, including signed documents by the named plan trustee or administrator, and the amendment must cover the time the company started using leased employees.  If you have further questions regarding leased employees and how they may affect your Plan, please feel free to contact me with your questions. 

Victor Fuentes, CPA

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10 Easy Tips to Prepare for Your 401(k) Audit

If your company’s 401(k) plan requires an audit this year, here are ten things you can do to help you prepare for, and pass your 401(k) audit.

1. Gather all plan documents including new amendments that were made during the current year.  Your auditor will ask for them, so you might as well pull them together now.

2. Obtain a copy of the plan census from your plan administrator.  Reconcile the total salary on the census to your payroll records.  If it doesn’t tie out, investigate the discrepancy. 

3. Check to see if your fidelity bond is sufficient.  Fidelity bonds should be enough to cover at least 10% of the net plan assets.  Most plans’ net assets are increasing each year, but it is very common to overlook increasing the fidelity bond. 

4. Every plan should have certain individuals who have been charged with governance of the plan.  If they have not had a meeting regarding the plan during the previous year, they should schedule a meeting and keep minutes of the meeting to provide to the auditors.

5. Refer to the plan’s loan policy for restrictions on participant loans.  Scan the loans that are currently outstanding to make sure none of them appear to be non-compliant with the plan’s policy.

6. Refer to the plan document or adoption agreement for the definition of eligible compensation.  Once you have this information, pull up a copy of your most recent payroll, select a few individuals, and check to see if all of their “eligible compensation was included in the calculation for deferrals.

7. Gather your supporting documentation early.  Once the auditors arrive they may require a lot of your time with requests for additional documentation.  Gather the documents that they request as soon as you have their list.  This will take stress off of you during the audit and allow you to help the auditors with new requests.

Any audit can be stressful, but with advance preparation the burden is always lighter. 

Rex Platt

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Finding information on employee benefit plans can be difficult and time consuming. As a service to our clients, and other interested parties who are involved in or in need of employee benefit services, we'll gather all of the information for you. We'll keep you up-to-date on the latest laws and regulations and we will even add our own personal insight into what else is occurring in the employee benefits world. We will provide these posts weekly and hope to get your input and feedback on the various topics. We will also share that feedback with others, as we find appropriate.

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