The Department of Labor’s Employee Benefits Security Administration (EBSA) filed a complaint in federal court against a Tennessee profit-sharing plan over allegedly imprudent margin investing that triggered plan losses.
The EBSA names Ditch Witch Equipment of Tennessee Inc.,
former owner Aubrey Needham and the Ditch Witch Equipment of Tennessee Inc.
Profit-Sharing Plan as defendants in the complaint, filed with the U.S.
District Court for the Eastern District of Tennessee, Knoxville Division.
The text of the complaint alleges that in 2005, defendant
Aubrey Needham entered the company’s profit-sharing plan into a margin
agreement account which allowed him to make plan investments on margin. Needham
began purchasing stock warrants as plan investments, and as a result of
purchases on margin, the plan’s margin account had a negative balance of more
than $500,000 by the end of 2005.
To satisfy the margin calls, the EBSA says Needham
liquidated other plan investments in various mutual funds. In late 2006,
Needham had liquidated all of the plan’s mutual fund investments and all plan
assets were invested in stock warrants of a publicly traded company, Star
Maritime Acquisition Corp (SMAC). In April 2007, Needham liquidated the SMAC
stock warrants and began purchasing stock warrants of another publicly-traded
company, Health Care Acquisition Co., which became PharmAthene Inc. In August
2007, 100% of the plan assets were invested in PharmAthene stock warrants, and
plan assets remained solely invested in PharmAthene stock warrants and stock
through April 2009. As a result of the plan’s investments in PharmAthene, the
plan suffered net losses totaling at least $359,770, the EBSA says.
The complaint charges Needham with failing to give
appropriate consideration to whether the investments or investment course of
action was reasonably designed to further the purposes of the plan. Needham is
also charged with failing to take into consideration the risk of loss and the
opportunity for gain (or other return) associated with the investment or
investment course of action. The defendant also failed to appropriately consider:
the composition of the plan’s investment portfolio with regard to
diversification; the liquidity and return of the portfolio relative to the
anticipated cash flow requirements of the plan; and the projected return of the
portfolio relative to the funding objectives of the plan.
The EBSA’s complaint seeks a court order requiring the
defendants to restore all losses to the plan, including interest, and to
disgorge any benefits or profits received by any plan fiduciaries as a result
of fiduciary violations. The complaint also seeks to remove defendants from
their positions as fiduciaries with respect to the plan, and permanently bar
them from serving as fiduciaries for, or having control over the assets of, any
employee benefit plan subject to Employee Retirement Income Security Act.
The
full text of the complaint (docket number 3:14-cv-00171) is available here.
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Failing
safety nets and longer life-spans are spurring financial advisers to generate
sufficient retirement income. More than two-thirds of advisers surveyed (71%) by
Jefferson National say current conditions make this difficult, but tax deferral
can be an effective strategy.
A simple
and effective strategy, according to Laurence Greenberg, president of Jefferson
National, is asset location, which leverages the power of tax deferral and can
be used for almost any client. “By locating assets based on their tax
efficiency between taxable accounts and tax-deferred vehicles, research has shown
that tax deferral can increase potential returns by 100 to 200 basis points—without
increasing risk,” Greenberg tells PLANADVISER.
The
first step is to consider the tax-efficiency of asset classes, Greenberg
says. “Tax-efficient assets generate long-term capital gains, which are
currently taxed at a maximum of 20%,” he explains. “Tax-inefficient assets
generate ordinary income or short-term capital gains, currently taxed as high
as 39.6%.”
Next, tax-efficient
assets, such as index funds, funds with low turnover and passively managed
investments, should be located in a taxable account. Tax-inefficient assets,
such as bond funds, real estate investment trusts (REITs), commodities,
actively managed funds and many hedge-like liquid alternative funds, should be
located in a tax-deferred vehicle to minimize the tax bill and to increase
after-tax returns—without increasing risk, Greenberg says.
Asset location can absolutely be used to
increase returns for defined contribution (DC) plan participants, according to
Greenberg. “If
the client has a good mix of tax-efficient and tax inefficient assets, and they
have a taxable account as well as a DC plan, they can benefit from an asset
location strategy,” he says.
Tax-efficient
assets (such as those named above) can be located in their taxable account.
Tax-inefficient assets (bond funds, REITS and so on), can be located in their
tax-deferred DC plan to increase returns by as much as 100 basis points—without
increasing risk, according to Greenberg. “Once clients max out contributions to qualified plans such as 401(k)s
and IRAs (individual retirement accounts), low-cost no-load variable annuities
are next in line to help maximize tax-deferred compounding. And keep in mind,
low-cost is key,” he says.
Watch Out for
Charges
Tax
deferral can add between 100 and 200 basis points to earnings, but traditional variable
annuities, which charge an average of 135 basis points for basic Mortality and
Expense, 125 basis points for an income guarantee, and additional fees for
other features and benefits, can cost up to 300 basis points or
more—effectively wiping out the value of tax deferral.
“To
cut costs, help clients accumulate more and generate more retirement income, we
are seeing more companies introduce low-cost and flat-fee variable annuities designed
to maximize the power of tax deferral,” Greenberg says.
Another tactic is the total return strategy, which uses the overall
annual return of an investment portfolio, Greenberg explains. “This includes
using capital appreciation, as well as dividends and interest, to generate
retirement income,” he says.
Compared with other approaches, such as the bucket approach, or
income investing, or a bond ladder, the total return strategy is increasingly
popular for a number of reasons, Greenberg says. “There are
several factors that are changing the landscape of retirement planning,” he
says. More than two-thirds of advisers say their biggest challenge in
generating retirement income is caused by a low-yield environment, maintaining
adequate equity exposure and managing volatility.
“In
today’s low-yield environment, advisers cannot rely
on fixed income alone to meet their client’s income needs, and so they are
moving away from the traditional income-generating approaches such as bond
ladders, or the traditional income investing strategy that uses just dividends
and interest alone to generate retirement income,” Greenberg explains.
The issues of longevity from increasing life spans and a
retirement that could last 30 years or more means that the No. 1
concern for most Americans is outliving and outspending their savings,
Greenberg says. “Today’s advisers recognize the need
to maintain a much higher allocation to equities in their client’s retirement
income portfolios. They are managing these portfolios for total return to
improve the chances of generating more income for more years,” he says.
Higher
equities of course come with higher risks, Greenberg points out. Proactive risk
management is imperative, given the challenge of ongoing volatility. He says a
growing number of funds are designed to manage volatility, provide downside
protection and generate predictable income. “These funds use sophisticated
strategies like those favored by hedge funds, elite
institutional investors and insurers managing risk on their own balance
sheets—but with lower fees and much greater flexibility,” he says.
Retirement Income Concerns
Jefferson
National recently surveyed more than 400 advisers about issues of current concern to
them. It found that advisers and their clients are very focused on being able
to generate sufficient income in retirement. A majority of those surveyed (85%)
say tax deferral is a critical component of achieving retirement income. When
using this strategy, 88% report they rely on asset location to help
increase returns without increasing risk, while 76% rely on withdrawal
sequencing, first spending down taxable accounts and then spending down
tax-deferred vehicles.
Other
findings based on advisers surveyed are:
When
implementing a withdrawal strategy, 48% of advisers use a dynamic withdrawal
strategy, adjusting clients’ withdrawals based on market conditions and
portfolio valuation. Other withdrawal strategies include constant dollar amount
(23%), constant percentage (14%), and changing percentage based on life
expectancy (8%).
The
most popular products to generate retirement income are a diversified portfolio
of mutual funds (67%); variable annuities with income guarantees (51%); and
dividend-paying equities funds (51%).
Delaying
Social Security to increase benefits is one of the most popular strategies to
help enhance retirement income (78%).
It is more challenging than ever in
today’s economy, Greenberg says. And really part of the key to providing retirement
income is to focus more on financial planning. “It’s not just investing, but
also understanding client needs in retirement and tax optimization strategies.
You’ll have to use a variety of tactics to get the client to to be where they
need to be. How and when you take money out, delaying Social Security. Advisers
have to take a really strong financial planning approach.”