PANC 2014: Washington Update

There is an extensive amount of regulatory rulemaking going on in Washington that could impact retirement plans in the months and years ahead, and major tax reform proposals are still on the table.

“Retirement policy is very much on the mind of Washington politicians, with two themes in play,” said Roberta Ufford, principal with Groom Law Group, speaking at the 2014 PLANADVISER National Conference “Washington Update” panel Monday. “The first is tax reform, specifically with regard to what Washington views as the lost tax revenue that the retirement system has. Working with a 10-year projection, that doesn’t account for how these revenues are taxed when they are drawn down. As a result, there is talk about switching to Roth accounts or limiting contributions.”

The second key retirement issue that Washington politicians are kicking around is limited coverage, Ufford continued. Thus, regulators are now talking about “multiple employer plans that would shift fiduciary responsibilities from sponsors and make plans more attractive” to smaller businesses, Ufford said. Legislators are also considering a “saver’s credit, start-up credit and annuities.”

With the 40th anniversary of the Employee Retirement Income Security Act (ERISA) having just passed earlier this month, it is important to remember that the law “has evolved because it did not contemplate the retirement savings programs we have now,” said David Weiner, principal with David Weiner Legal. It is also critical for retirement plan advisers to keep in mind that ERISA is “just a piece” of America’s retirement savings legislation, Ufford added. “There is Social Security, municipal and state plans, 403(b) plans,” she said.

With regards to the Department of Labor’s (DOL) efforts to potentially redefine which service providers are fiduciaries, DOL’s initial focus was on “regulating when an adviser is giving advice on retirement plan distributions and stands to gain fees,” Weiner said. DOL has now extended its questioning of fiduciaries to include selection of funds on an investment menu and how custodians price assets, Ufford said, making the pending regulation even more “controversial.” Given the repeated delays on this ruling and the upcoming presidential election in 2016, it is unlikely the DOL will return to the drafting table anytime soon, Weiner said. Additionally, there is a bill in the House of Representatives that would preclude the DOL from issuing this rule until the Securities and Exchange Commission (SEC) settles its rules of conduct for broker/dealers, Ufford added.

As to how a broadened definition of fiduciaries, whenever it is finally adopted, would affect retirement plan advisers, “for those who are already a fiduciary, this would be good for you because you are already ahead of the game,” Ufford said. “But if you aren’t, you might have to jump into the pool; your affiliates and custodians may have to change their business model as well.” Additionally, Weiner added, advisers will need to “be aware of co-fiduciaries. Make sure to monitor their activities.”

And even if the new definition of fiduciaries remains tabled, “the DOL is looking at the definition of fiduciaries through enforcement, audits and litigation,” Ufford warned. In particular, the DOL has an ongoing fiduciary adviser compensation project centered on revenue sharing and disclosure, Ufford said. “The DOL is looking at when advisers are receiving undisclosed compensation. The DOL is also looking at service providers and how you are paid through 12(b)(1) fees and other fees, such as for attending conferences,” she said.

As for the DOL’s proposal to require summarized 408(b)(2) and 404(a)(5) fee disclosures to, respectively, plan sponsors and plan participants if the disclosures are presented overly lengthy documents, this has been met with considerable opposition from the retirement plan industry, Weiner said. Their major contention is that it is “too difficult to summarize,” he said. Now that the “battles lines have been drawn, there is likely to be a delay on this proposal’s implementation.”

Likewise, retirement plan advisers can expect continued delays on the SEC project stemming from the Dodd-Frank bill on assisting retail investors distinguish the difference between advisers and broker/dealers, Ufford said. “The SEC found that investors don’t realize that broker/dealers are only held to ‘suitable’ but not ‘in the best interest’ standards,” she said. Given the fact that there are still 18 rulemaking projects pending from the Dodd-Frank bill—and the fact that the SEC and the DOL are supposed to coordinate their efforts on this educational initiative—the SEC may not get to this initiative anytime soon, she said.

The same holds true for the complicated task of standardizing how target-date fund (TDF) glide paths are disclosed, Ufford said. “There is no timetable for this at the SEC or the DOL,” she said. However, advisers should pay heed as to whether the SEC or the DOL spearheads this effort. “If the DOL adopts the rule, TDF disclosure rules will not just cover mutual funds but extend to collective investment trusts and separately managed accounts,” she said.

At the IRS, the most notable initiative is its recent allowance for retirement plans to offer qualified longevity annuity contracts (QLACs), Weiner said. However, only a very small percentage of plans have adopted QLACs, he said. “It is a good first step—but contracts are limited to the lesser of $125,000 or 25% of an account balance, with minimum distributions at age 85.”