How Pension Income and Retirement Account Withdrawals Can Impact Unemployment Benefits
How Pension Income and Retirement Account Withdrawals Can Impact Unemployment Benefits As the economy continues to slow, unemployment claims continue to rise at historic rates.
How Pension Income and Retirement Account Withdrawals Can Impact Unemployment Benefits
As the economy continues to slow, unemployment claims continue to rise at historic rates. Due to this expected increase in unemployment, the CARES Act included provisions for Coronavirus related distributions which give people access to retirement dollars with more favorable tax treatment. Details on these distributions can be found here. With retirement dollars becoming more accessible with the CARES Act, a common question we are receiving is “Will a retirement distribution impact my Unemployment Benefits?”.
Unemployment Benefits vary from state to state and therefore the answer to this question can be different depending on the state you reside in. This article will focus on New York State Unemployment Benefits, but a lot of the items discussed may be applied similarly in other states.
The answer to this question also depends on the type of retirement account you are receiving money from so we will touch on the most common.
Note: Typically, to qualify for unemployment insurance benefits, you must have been paid minimum wage during the “base period”. Base period is defined as the first four quarters of the last five calendar quarters prior to the calendar quarter which the claim is effective. “Base period employer” is any employer that paid the claimant during the base period.
Pension Reduction
Money received from a pension that a base period employer contributed to will result in a dollar for dollar reduction in your unemployment benefit. Even if you partially contributed to the pension, 100% of the amount received will result in an unemployment benefit reduction.
If you were the sole contributor to the pension, then the unemployment benefit should not be impacted.
Even if you are retired from a job and receiving a pension, you may still qualify for unemployment benefits if you are actively seeking employment.
Qualified Retirement Plans (examples; 401(k), 403(b))
If the account you are accessing is from a base period employer, a withdrawal from a qualified retirement plan could result in a reduction in your unemployment benefit. It is common for retirement plans to include some type of match or profit-sharing element which would qualify as an employer contribution. Accounts which include employer contributions may result in a reduction of your unemployment benefit.
We recommend you contact the unemployment claims center to determine how these distributions would impact your benefit amount before taking them.
IRA
No unemployment benefit rate reduction will occur if the distribution is from a qualified IRA.Knowing there is no reduction caused by qualified IRA withdrawals, a common practice is rolling money from a qualified retirement plan into an IRA and then accessing it as needed. Once you are no longer at the employer, you are often able to take a distribution from the plan. Rolling it into an IRA and accessing the money from that account rather than directly from the retirement plan could result in a higher unemployment benefit.
About Rob……...
Hi, I’m Rob Mangold. I’m the Chief Operating Officer at Greenbush Financial Group and a contributor to the Money Smart Board blog. We created the blog to provide strategies that will help our readers personally, professionally, and financially. Our blog is meant to be a resource. If there are questions that you need answered, please feel free to join in on the discussion or contact me directly.
Coronavirus Relief: $100K 401(k) Loans & Penalty Free Distributions
With the passing of the CARES Act, Congress made new distribution and loan options available within 401(k) plans, IRA’s, and other types of employer sponsored plans.
With the passing of the CARES Act, Congress made new distribution and loan options available within 401(k) plans, IRA’s, and other types of employer sponsored plans. These new distribution options will provide employees and business owners with access to their retirement accounts with the:
10% early withdrawal penalty waived
Option to spread the income tax liability over a 3-year period
Option to repay the distribution and avoid taxes altogether
401(k) loans up to $100,000 with loan payments deferred for 1 year
Many individuals and small businesses are in a cash crunch. Individuals are waiting for their IRS Stimulus Checks and many small business owners are in the process of applying for the new SBA Disaster Loans and SBA Paycheck Protection Loans. Since no one knows at this point how long it will take the IRS checks to arrive or how long it will take to process these new SBA loans, people are looking for access to cash now to help bridge the gap. The CARES Act opened up options within pre-tax retirement accounts to provide that bridge.
10% Early Withdrawal Penalty Waived
Under the CARES Act, “Coronavirus Related Distributions” up to $100,000 are not subject the 10% early withdrawal penalty for individuals under the age of 59½. The exception will apply to distributions from:
IRA’s
401(K)
403(b)
Simple IRA
SEP IRA
Other types of Employer Sponsored Plans
To qualify for the waiver of the 10% early withdrawal penalty, you must meet one of the following criteria:
You, your spouse, or a dependent was diagnosed with the COVID-19
You are unable to work due to lack of childcare resulting from COVID-19
You own a business that has closed or is operating under reduced hours due to COVID-19
You have experienced adverse financial consequences as a result of being quarantined, furloughed, laid off, or having work hours reduced because of COVID-19
They obviously made the definition very broad and it’s anticipated that a lot of taxpayers will qualify under one of the four criteria listed above. The IRS may also take a similar broad approach in the application of these new qualifying circumstances.
Tax Impact
While the 10% early withdrawal penalty can be waived, in most cases, when you take a distribution from a pre-tax retirement account, you still have to pay income tax on the distribution. That is still true of these Coronavirus Related Distributions but there are options to help either mitigate or completely eliminate the income tax liability associated with taking these distributions from your retirement accounts.
Tax Liability Spread Over 3 Years
Normally when you take a distribution from a pre-tax retirement account, you have to pay income tax on the full amount of the distribution in the year that the distribution takes place.
However, under these new rules, by default, if you take a Coronavirus-Related Distribution from your 401(k), IRA, or other type of employer sponsored plan, the income tax liability will be split evenly between 2020, 2021, and 2022 unless you make a different election. This will help individuals by potentially lowering the income tax liability on these distributions by spreading the income across three separate tax years. However, taxpayers do have the option to voluntarily elect to have the full distribution taxed in 2020. If your income has dropped significantly in 2020, this may be an attractive option instead of deferring that additional income into a tax year where your income has returned to it’s higher level.
1099R Issue
I admittedly have no idea how the tax reporting is going to work for these Coronavirus-Related Distributions. Normally when you take a distribution from a retirement account, the custodian issues you a 1099R Tax Form at the end of the year for the amount of the distribution which is how the IRS cross checks that you reported that income on your tax return. If the default option is to split the distribution evenly between three separate tax years, it would seem logical that the custodians would now have to issue three separate 1099R tax forms for 2020, 2021, and 2022. As of right now, we don’t have any guidance as to how this is going to work.
Repayment Option
There is also a repayment option associated with these Coronavirus Related Distributions, that will provide taxpayers with the option to repay these distributions back into their retirement accounts within a 3-year period and avoid having to pay income tax on these distributions. If individuals elect this option, not only did they avoid the 10% early withdrawal penalty, but they also avoided having to pay tax on the distribution. The distribution essentially becomes an “interest free loan” that you made to yourself using your retirement account.
The 3-year repayment period begins the day after the individual receives the Coronavirus Related Distribution. The repayment is technically treated as a “rollover” similar to the 60 day rollover rule but instead of having only 60 days to process the rollover, taxpayers will have 3 years.
The timing of the repayment is also flexible. You can either repay the distribution as a:
Single lump sum
Partial payments over the course of the 3 year period
Even if you do not repay the full amount of the distribution, any amount that you do repay will avoid income taxation. If you take a Coronavirus Related Distribution, whether you decide to have the distribution split into the three separate tax years or all in 2020, if you repay a portion or all of the distribution within that three year window, you can amend your tax return for the year that the taxes were paid on that distribution, and recoup the income taxes that you paid.
Example: I take a $100,000 distribution from my IRA in April 2020. Since my income is lower in 2020, I elect to have the full distribution taxed to me in 2020, and remit that taxes with my 2020 tax return. The business has a good year in 2021, so in January 2022 I return the full $100,000 to my IRA. I can now amend my 2020 tax return and recapture the income tax that I paid for that $100,000 distribution that qualified as a Coronavirus Related Distribution.
No 20% Withholding Requirement
Normally when you take cash distributions from employee sponsored retirement plans, they are subject to a mandatory 20% federal tax withholding; that requirement has been waived for these Coronavirus Related Distributions up to the $100,000 threshold, so plan participants have access to their full account balance.
Cash Bridge Strategy
Here are some examples as to how individuals and small business owners may be able to use these strategies.
For small business owners that intend to apply for the new SBA Disaster Loan (EIDL) and/or SBA Paycheck Protection Program (PPP), the underwriting process will most likely take a few weeks before the company actually receives the money for the loan. Some businesses need cash sooner than that just to keep the lights on while they are waiting for the SBA money to arrive. A business owner could take a $100,000 from the 401(K) plan, use that money to operate the business, and they have 3 years to return that money to 401(k) plan to avoid having to pay income tax on that distribution. The risk of course, is if the business goes under, then the business owner may not have the cash to repay the loan. In that case, if the owner was under the age of 59½, they avoided the 10% early withdrawal penalty, but would have to pay income tax on the distribution amount.
For individuals and families that are struggling to make ends meet due to the virus containment efforts, they could take a distribution from their retirement account to help subsidize their income while they are waiting for the IRS Stimulus checks to arrive. When they receive the IRS stimulus checks or return to work full time, they can repay the money back into their retirement account prior to the end of the year to avoid the tax liability associated with the distribution for 2020.
401(k) Plan Sponsors
I wanted to issue a special note the plan sponsors of these employer sponsored plans, these Coronavirus Related Distributions are an “optional” feature within the retirement plan. If you want to provide your employees with the opportunity to take these distributions from the plan, you will need to contact your third party administrator, and authorize them to make these distributions. This change will eventually require a plan amendment but companies have until 2022 to amend their plan to allow these Coronavirus Related Distributions to happen now, and the amendment will apply retroactively.
$100,000 Loan Option
The CARES Act also opened up the option to take a $100,000 loan against your 401(k) or 403(b) balance. Normally, the 401(k) maximum loan amount is the lesser of:
50% of your vested balance OR $50,000
The CARES Act includes a provision that will allow plan sponsors to amend their loan program to allow “Coronavirus Related Loans” which increases the maximum loan amount to the lesser of:
100% of your vested balance OR $100,000
To gain access to these higher loan amounts, plan participants have to self attest to the same criteria as the waiver of the 10% early withdrawal penalty. But remember, loans are an optional plan provision within these retirement plans so your plan may or may not allow loans. If the plan sponsors want to allow these high threshold loans, similar to the Coronavirus Related Distributions, they will need to contact their plan administrator authorizing them to do so and process the plan amendment by 2022.
No Loan Payments For 1 Year
Normally when you take a 401(K) loan, the company begins the payroll deductions for your loan payment immediately after you receive the loan. The CARES act will allow plan participants that qualify for these Coronavirus loans to defer loan payments for up to one year. The loan just has to be taken prior to December 31, 2020.
Caution
While the CARES ACT provides some new distribution and loan options for individuals impacted by the Coronavirus, there are always downsides to using money in your retirement account for purposes other than retirement. The short list is:
The money is no longer invested
If the distribution is not returned to the account within 3 years, you will have a tax liability
If you use your retirement account to fund the business and the business fails, you could have to work a lot longer than you anticipated
If you take a big 401(k) loan, even though you don’t have to make loan payments now, a year from the issuance of the loan, you will have big deductions from your paycheck as those loan payments are required to begin.
Michael Ruger
About Michael……...
Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.
IRA RMD Start Date Changed From Age 70 ½ to Age 72 Starting In 2020
The SECURE Act was passed into law on December 19, 2019 and with it came some big changes to the required minimum distribution (“RMD”) requirements from IRA’s and retirement plans. Prior to December 31, 2019, individuals
The SECURE Act was passed into law on December 19, 2019 and with it came some big changes to the required minimum distribution (“RMD”) requirements from IRA’s and retirement plans. Prior to December 31, 2019, individuals were required to begin taking mandatory distributions from their IRA’s, 401(k), 403(b), and other pre-tax retirement accounts starting in the year that they turned age 70 ½. The SECURE Act delayed the start date of the RMD’s to age 72. But like most new laws, it’s not just a simple and straightforward change. In this article we will review:
Old Rules vs New Rules surrounding RMD’s
New rules surrounding Qualified Charitable Distributions from IRA’s
Who is still subject to the 70 ½ RMD requirement?
The April 1st delay rule
Required Minimum Distributions
A quick background on required minimum distributions, also referred to as RMD’s. Prior to the SECURE Act, when you turned age 70 ½ the IRS required you to take small distributions from your pre-tax IRA’s and retirement accounts each year. For individuals that did not need the money, they did not have a choice. They were forced to withdraw the money out of their retirement accounts and pay tax on the distributions. Under the current life expectancy tables, in the year that you turned age 70 ½ you were required to take a distribution equaling 3.6% of the account balance as of the previous year end.
With the passing of the SECURE Act, the start age from these RMD’s is now delayed until the calendar year that an individual turns age 72.
OLD RULE: Age 70 ½ RMD Begin Date
NEW RULE: Age 72 RMD Begin Date
Still Subject To The Old 70 ½ Rule
If you turned age 70 ½ prior to December 31, 2019, you will still be required to take RMD’s from your retirement accounts under the old 70 ½ RMD rule. You are not able to delay the RMD’s until age 72.
Example: Sarah was born May 15, 1949. She turned 70 on May 15, 2019 making her age 70 ½ on November 15, 2019. Even though she technically could have delayed her first RMD to April 1, 2020, she will not be able to avoid taking the RMD’s for 2019 and 2020 even though she will be under that age of 72 during those tax years.
Here is a quick date of birth reference to determine if you will be subject to the old 70 ½ start date or the new age 72 start date:
Date of Birth Prior to July 1, 1949: Subject to Age 70 ½ start date for RMD
Date of Birth On or After July 1, 1949: Subject to Age 72 start date for RMD
April 1 Exception Retained
OLD RULE: In the the year that an individual turned age 70 ½, they had the option to delay their first RMD until April 1st of the following year. This is a tax strategy that individuals engaged in to push that additional taxable income associated with the RMD into the next tax year. However, in year 2, the individual was then required to take two RMD’s in that calendar year: One prior to April 1st for the previous tax year and the second prior to December 31st for the current tax year.
NEW RULE: Unchanged. The April 1st exception for the first RMD year was retained by the SECURE Act as well as the requirement that if the RMD was voluntarily delayed until the following year that two RMD’s would need be taken in the second year.
Qualified Charitable Distributions (QCD)
OLD RULES: Individuals that had reached the RMD age of 70 ½ had the option to distribute all or a portion of their RMD directly to a charitable organization to avoid having to pay tax on the distribution. This option was reserved only for individuals that had reached age 70 ½. In conjunction with tax reform that took place a few years ago, this has become a very popular option for individuals that make charitable contributions because most individual taxpayers are no longer able to deduct their charitable contributions under the new tax laws.
NEW RULES: With the delay of the RMD start date to age 72, do individuals now have to wait until age 72 to be eligible to make qualified charitable distributions? The answer is thankfully no. Even though the RMD start date is delayed until age 72, individuals will still be able to make tax free charitable distributions from their IRA’s in the calendar year that they turn age 70 ½. The limit on QCDs is still $100,000 for each calendar year.
NOTE: If you plan to process a qualified charitable distributions from your IRA after age 70 ½, you have to be well aware of the procedures for completing those special distributions otherwise it could cause those distributions to be taxable to the owner of the IRA. See the article below for more on this topic:
ANOTHER NEW RULE: There is a second new rule associated with the SECURE Act that will impact this Qualified Charitable Distribution strategy. Under the old tax law, individuals were unable to contribute to Traditional IRA’s past the age of 70 ½. The SECURE Act eliminated that rule so individuals that have earned income past age 70 ½ will be eligible to make contributions to Traditional IRAs and take a tax deduction for those contributions.
As an anti-abuse provision, any contributions made to a Traditional IRA past the age of 70 ½ will, in aggregate, dollar for dollar, reduce the amount of your qualified charitable distribution that is tax free.
Example: A 75 year old retiree was working part-time making $20,000 per year for the past 3 years. To reduce her tax bill, she contributed $7,000 per year to a traditional IRA which is allowed under the new tax laws. This year she is required to take a $30,000 required minimum distribution (RMD) from her retirement accounts and she wants to direct that all to charity to avoid having to pay tax on the $30,000. Because she contributed $21,000 to a traditional IRA past the age of 70 ½, $21,000 of the qualified charitable distribution would be taxable income to her, while the remaining $9,000 would be a tax free distribution to the charity.
$30,000 QCD – $21,000 IRA Contribution After Age 70 ½ = $9,000 tax free QCD
About Michael……...
Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.
Spouse Inherited IRA Options
If your spouse passes away and they had either an IRA, 401(k), 403(b), or some other type of employer sponsored retirement account, you will have to determine which distribution option is the right one for you. There are deadlines that you will need to be aware of, different tax implications based on the option that you choose, forms that need to be
If your spouse passes away and they had either an IRA, 401(k), 403(b), or some other type of employer sponsored retirement account, you will have to determine which distribution option is the right one for you. There are deadlines that you will need to be aware of, different tax implications based on the option that you choose, forms that need to be completed, and accounts that may need to be established.
Spouse Distribution Options
As the spouse, if you are listed as primary beneficiary on a retirement account or IRA, you have more options available to you than a non-spouse beneficiary. Non-spouse beneficiaries that inherited retirement accounts after December 31, 2019 are required to fully distribution the account 10 years following the year that the decedent passed away. But as the spouse of the decedent, you have the following options:
Fulling distribute the retirement account with 10 years
Rollover the balance to an inherited IRA
Rollover the balance to your own IRA
To determine which option is the right choice, you will need to take the following factors into consideration:
Your age
The age of your spouse
Will you need to take money from the IRA to supplement your income?
Taxes
Cash Distributions
We will start with the most basic option which is to take a cash distribution directly from your spouse’s retirement account. Be very careful with this option. When you take a cash distribution from a pre-tax retirement account, you will have to pay income tax on the amount that is distributed to you. For example, if your spouse had $50,000 in a 401(k), and you decide to take the full amount out in the form of a lump sum distribution, the full $50,000 will be counted as taxable income to you in the year that the distribution takes place. It’s like receiving a paycheck from your employer for $50,000 with no taxes taken out. When you go to file your taxes the following year, a big tax bill will probably be waiting for you.
In most cases, if you need some or all of the cash from a 401(k) account or an IRA, it usually makes more sense to first rollover the entire balance into an inherited IRA, and then take the cash that you need from there. This strategy gives you more control over the timing of the distributions which may help you to save some money in taxes. If as the spouse, you need the $50,000, but you really need $30,000 now and $20,000 in 6 months, you can rollover the full $50,000 balance to the inherited IRA, take $30,000 from the IRA this year, and take the additional $20,000 on January 2nd the following year so it spreads the tax liability between two tax years.
10% Early Withdrawal Penalty
Typically, if you are under the age of 59½, and you take a distribution from a retirement account, you incur not only taxes but also a 10% early withdrawal penalty on the amount this is distributed from the account. This is not the case when you take a cash distribution, as a beneficiary, directly from the decedents retirement account. You have to report the distribution as taxable income but you do not incur the 10% early withdrawal penalty, regardless of your age.
IRA Options
Let's move onto the two IRA options that are available to spouse beneficiaries. The spouse has the decide whether to:
Rollover the balance into their own IRA
Rollover the balance into an inherited IRA
By processing a direct rollover to an IRA in either case, the beneficiary is able to avoid immediate taxation on the balance in the account. However, it’s very important to understand the difference between these two options because all too often this is where the surviving spouse makes the wrong decision. In most cases, once this decision is made, it cannot be reversed.
Spouse IRA vs Inherited IRA
There are some big differences comparing the spouse IRA and inherited IRA option.
There is common misunderstanding of the RMD rules when it comes to inherited IRA’s. The spouse often assumes that if they select the inherited IRA option, they will be forced to take a required minimum distribution from the account just like non-spouse beneficiaries had to under the old inherited IRA rules prior to the passing of the SECURE Act in 2019. That is not necessarily true. When the spouses establishes an inherited IRA, a RMD is only required when the deceases spouse would have reached age 70½. This determination is based on the age that your spouse would have been if they were still alive. If they are under that “would be” age, the surviving spouse is not required to take an RMD from the inherited IRA for that tax year.
For example, if you are 39 and your spouse passed away last year at the age of 41, if you establish an inherited IRA, you would not be required to take an RMD from your inherited IRA for 29 years which is when your spouse would have turned age 70½. In the next section, I will explain why this matters.
Surviving Spouse Under The Age of 59½
As the surviving spouse, if you are under that age of 59½, the decision between either establishing an inherited IRA or rolling over the balance into your own IRA is extremely important. Here’s why .
If you rollover the balance to your own IRA and you need to take a distribution from that account prior to reaching age 59½, you will incur both taxes and the 10% early withdrawal penalty on the amount of the distribution.
But wait…….I thought you said the 10% early withdrawal penalty does not apply?
The 10% early withdrawal penalty does not apply for distributions from an “inherited IRA” or for distributions to a beneficiary directly from the decedents retirement account. However, since you moved the balance into your own IRA, you have essentially forfeited the ability to avoid the 10% early withdrawal penalty for distributions taken before age 59½.
The Switch Strategy
There is also a little know “switch strategy” for the surviving spouse. Even if you initially elect to rollover the balance to an inherited IRA to maintain the ability to take penalty free withdrawals prior to age 59½, at any time, you can elect to rollover that inherited IRA balance into your own IRA.
Why would you do this? If there is a big age gap between you and your spouse, you may decide to transition your inherited IRA to your own IRA prior to age 59½. Example, let’s assume the age gap between you and your spouse was 15 years. In the year that you turn age 55, your spouse would have turned age 70½. If the balance remains in the inherited IRA, as the spouse, you would have to take an RMD for that tax year. If you do not need the additional income, you can choose to rollover the balance from your inherited IRA to your own IRA and you will avoid the RMD requirement. However, in doing so, you also lose the ability to take withdrawals from the IRA without the 10% early withdrawal penalty between ages 55 to 59½. Based on your financial situation, you will have to determine whether or not the “switch strategy” makes sense for you.
The Spousal IRA
So when does it make sense to rollover your spouse’s IRA or retirement account into your own IRA? There are two scenarios where this may be the right solution:
The surviving spouse is already age 59½ or older
The surviving spouse is under the age of 59½ but they know with 100% certainty that they will not have to access the IRA assets prior to reaching age 59½
If the surviving spouse is already 59½ or older, they do not have to worry about the 10% early withdrawal penalty.
For the second scenarios, even though this may be a valid reason, it begs the question: “If you are under the age of 59½ and you have the option of changing the inherited IRA to your own IRA at any time, why take the risk?”
As the spouse you can switch from inherited IRA to your own IRA but you are not allowed to switch from your own IRA to an inherited IRA down the road.
About Michael……...
Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.
403(b) Lawsuits Continue To Spread To More Colleges
In the last 3 years, the number of lawsuits filed against colleges for excessive fees and compliance issues related to their 403(b) plans has increased exponentially. Here is a list of just some of the colleges that have had lawsuit brought against them by their 403(b) plan participants:
In the last 3 years, the number of lawsuits filed against colleges for excessive fees and compliance issues related to their 403(b) plans has increased exponentially. Here is a list of just some of the colleges that have had lawsuit brought against them by their 403(b) plan participants:
Yale
NYU
Duke
John Hopkins
MIT
Columbia
Emory
Cornell
Vanderbilt
Northeastern
USC
The fiduciary landscape has completely changed for organizations, like colleges, that sponsor ERISA 403(b) plans. In 2009, new regulations were passed that brought 403(b) plans up to the compliance standards historically found in the 401(k) market. Instead of slowly phasing in the new regulations, the 403(b) market basically went from zero to 60 mph in a blink of an eye. While some of the basic elements of the new rules were taken care of by the current service providers such as the required written plan documents, contract exchange provisions, and new participant disclosures, we have found that colleges, due to a lack of understanding of what is required to fulfill their fiduciary role to the plan, have fallen very short of putting the policies and procedures in place to protect the college from liabilities that can arise from the 403(b) plan.
Top Violations
Based on the lawsuits that have been filled against the various colleges, here is a list of the most common claims that have been included in these lawsuits:
Excessive fees
Fees associated with multiple recordkeepers
Too many investment options
Improper mutual fund share class
Variable annuity products
Excessive Fees
This is by far number one on the list. As you look at these lawsuits, most of them include a claim that the university breached their fiduciary duty under ERISA by allowing excessive fees to be charged to plan participants.
Here is the most common situation that we see when consulting with colleges that leads to this issue. A college had been with the same 403(b) provider for 60 years. Without naming names, they assume that their 403(b) plan has reasonable fees because all of the other colleges that they know of also use this same provider. So their fees must be reasonable right? Wrong!!
If you are member of the committee that oversees that 403(b) plan at your college, how do you answer this question? How do you know that the fees for your plan are reasonable? Can you show documented proof that you made a reasonable effort to determine whether or not the plan fees are reasonable versus other 403(b) providers?
The only way to answer this question is by going through an RFP process. For colleges that we consult with we typically recommend that they put an RFP out every 3 to 5 years. That is really the only way to be able to adequately answer the question: “Are the plan fees reasonable?” Now if you go through the RFP process and you find that another reputable provider is less expensive than your current provider, you are not required to change to that less expensive provider. However, from a fiduciary standpoint, you should acknowledge at the end of the RFP process that there were lower fee alternatives but the current provider was selected because of reasons X, Y, and Z. Document, document, document!!
Investment Fees / Underperformance / Investment Options
Liability is arising in these 403(b) plans due to
Revenue sharing fees buried in the mutual fund expense rations
Underperformance of the plan investments versus the benchmark / peer group
Too many investment options
Investment options concentrated all in one fund family
Restrictions associate with the plan investment
Investment Policy Statement violations or No IPS
Failure to document quarterly and annual investment reviews
Here is the issue. Typically members of these committees that oversee the 403(b) plan are not investment experts and you need to basically be an investment expert to understand mutual fund share classes, investment revenue sharing, peer group comparisons, asset classes represented within the fund menu, etc. To fill the void, colleges are beginning to hire investment firms to serve as third party consultants to the 403(b) committee. In most cases these firms charge a flat dollar fee to:
Prepare quarterly investment reports
Investment benchmarking
Draft a custom Investment Policy Statement
Coordinate the RFP process
Negotiation plan fees with the current provider
Conduct quarterly and annual reviews with the 403(b) committee
Compliance guidance
Multiple Recordkeepers
While multiple recordkeepers is becoming more common for college 403(b) plans, it requires additional due diligence on the part of the college to verify that it’s in the best interest of the plan participants. Multiple recordkeepers means that your 403(b) plan assets are split between two or more custodians. For example, a college may use both TIAA CREF and Principal for their 403(b) platform. Why two recordkeepers? Most of the older 403(b) accounts are setup as individual annuity contracts. As such, if the college decides to charge their 403(b) provider, unlike the 401(k) industry where all of the plan assets automatically move over to the new platform, each plan participant is required to voluntarily sign forms to move their account balance from the old 403(b) provider to the new 403(b) provider. It’s almost impossible to get all of the employee to make the switch so you end up with two separate recordkeepers.
Why does this create additional liability for the college? Even through the limitation set forth by these individual annuity contracts is out of the control of the college, by splitting the plan assets into two pieces you may be limiting the economies of scale of the total plan assets. In most cases the asset based fees for a 403(b) plan decreases as the plan assets become larger with that 403(b) provider. By splitting the assets between two 403(b) platforms, you are now creating two smaller plans which could result in larger all-in fees for the plan participants.
Now, it may very well be in the best interest of the plan participants to have two separate platforms but the college has to make sure that they have the appropriate documentation to verify that this due diligence is being conducts. This usually happens as a result of an RFP process. Here is an example. A college has been using the same 403(b) provider for the last 50 years but to satisfy their fiduciary obligation to the plan they going through the RFP process to verify that their plan fees are reasonable. Going into the RFP process they had no intention of change provides but as a result of the RFP process they realize that there are other 403(b) providers that offer better technology, more support for the plan sponsor, and lower fees than their current platform. While they are handcuffed by the individual contracts in the current 403(b) plan, they still have control over where the future contributions of the plan will be allocated so they decide that it’s in both the plan participants and the college’s best interest to direct the future contributions to the new 403(b) platform.
Too Many Investment Options
More is not always better in the retirement plan world. The 403(b) oversite committee, as a fiduciary, is responsible for selecting the investments that will be offered in accordance with the plan’s investment menu. Some colleges unfortunately take that approach that if we offer 80+ different mutual funds for the investment that should “cover all of their bases” since plan participants have access to every asset class, mutual fund family, and ten different small cap funds. The plaintiffs in these 403(b) lawsuits alleged that many of the plan’s investment options were duplicates, performed poorly, and featured high fees that are inappropriate for large 403(b) plans.
To make matters worse, if you have 80+ mutual funds on your 403(b) investment menu, you have to conduct regular and on-going due diligence on all 80+ mutual funds in your plan to make sure that they still meet the investment criteria set out in the plan’s IPS. If you have mutual funds in your plan that fall outside of the IPS criteria and those issues have not been addressed and/or documented, if a lawsuit is brought against the college it will be very difficult to defend that the college was fulfilling its fiduciary obligation to the investment menu.
Improper Mutual Fund Share Classes
To piggyback on this issue, what many plan sponsors don’t realize is that by selecting a more limited menu of mutual funds it can lower the overall plan fees. Mutual funds have different share classes and some share classes require a minimum initial investment to gain asset to that share class. For example you may have Mutual Fund A retail share class with a 0.80% internal expense ratio but there is also a Mutual Fund A institutional share class with a 0.30% internal expense ratio. However, the institutional share class requires an initial investment of $100,000 to gain access. If Mutual Fund A is a U.S. Large Cap Stock Fund and your plan offers 10 other U.S. Large Cap Stock Funds, your plan may not meet the institutional share requirement because the assets are spread between 10 different mutual funds within the same asset class. If instead, the committee decided that it was prudent to offer just Mutual Fund A to represent the U.S. Large Cap Stock holding on the investment menu, the plan may be able to meet that $100,000 minimum initial investment and gain access to the lower cost institutional share class.
Variable Annuity Products
While variable annuity products have historically been a common investment option for 403(b) plans, they typically charge fees that are higher than the fees that are charged by most standard mutual funds. In addition, variable annuities can place distribution restrictions on select investment investments which may not be in the plan participants best interest.
The most common issue we come across is with the TIAA Traditional investment. While TIAA touts the investment for its 3% guarantee, we have found that very few plan participants are aware that there is a 10 year distribution restriction associated with that investment. When you go to remove money from the TIAA Traditional fund, TIAA will inform you that you can only move 1/10th of your balance out of that investment each year over the course of the next ten years. You can see how this could be a problem for a plan participant that may have 100% of their balance in the TIAA Traditional investment as they approach retirement. Their intention may have been to retire at age 65 and rollover the balance to their own personal IRA. If they have money in the TIAA Traditional investment that is no longer an option. They would be limited to process a rollover equal to 1/10th of their balance in the TIAA Tradition investment between the age of 65 and 74. Only after age 74 would they completely free from this TIAA withdrawal restriction.
Consider Hiring A Consultant
While this may sound self-serving, colleges are really going to need help with the initial and on-going due diligence associate with keeping their 403(b) plan in compliance. For a reasonable cost, colleges should be able to engage an investment firm that specialized in this type of work to serve as a third party consultant for the 403(b) investment committee. Just make sure the fee is reasonable. The consulting fee should be expressed as a flat dollar amount fee, not an asset based fee, because they are fulfilling that role as a “consultant”, not the “investment advisor” to the 403(b) plan assets.
About Michael……...
Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.
The Procedures For Splitting Retirement Accounts In A Divorce
If you are going through a divorce and you or your spouse have retirement accounts, the processes for splitting the retirement accounts will vary depending on what type of retirement accounts are involved.
If you are going through a divorce and you or your spouse have retirement accounts, the processes for splitting the retirement accounts will vary depending on what type of retirement accounts are involved.
401(k) & 403(b) Plan
The first category of retirement plans are called ?employer sponsored qualified plans?. This category includes 401(k) plans, 403(b) plans, 457 plans, and profit sharing plans. Once you and your spouse have agreed upon the split amount of the retirement plans, one of the attorneys will draft Domestic Relations Order, otherwise known as a QDRO. This document provides instruction to the plans TPA (third party administrator) as to how and when to split the retirement assets between the ex-spouses. Here is the procedures from start to finish:
One attorney drafts the Domestic Relations Order (?DRO?)
The attorney for the other spouse reviews and approved the DRO
The spouse covered by the retirement plan submits it to the TPA for review
The TPA will review the document and respond with changes that need to be made (if any)
Attorneys submit the DRO to the judge for signing
Once the judge has signed the DRO, its now considered a Qualified Domestic Relations Order (QDRO)
The spouse covered by the retirement plan submits the QDRO to the plans TPA for processing
The TPA splits the retirement account and will often issues distribution forms to the ex-spouse not covered by the plan detailing the distribution options
Step number four is very important. Before the DRO is submitting to the judge for signing, make sure that the TPA, that oversees the plan being split, has had a chance to review the document. Each plan is different and some plans require unique language to be included in the DRO before the retirement account can be split. If the attorneys skip this step, we have seen cases where they go through the entire process, pay the court fees to have the judge sign the QDRO, they submit the QDRO for processing with the TPA, and then the TPA firm rejects the QDRO because it is missing information. The process has to start all over again, wasting time and money.
Pension Plans
Like employer sponsored retirement plans, pension plans are split through the drafting of a Qualified Domestic Relations Order (QDRO). However, unlike 401(k) and 403(b) plans that usually provide the ex-spouse with distribution options as soon as the QDRO is processed, with pension plans the benefit is typically delayed until the spouse covered by the plan is eligible to begin receiving pension payments. A word of caution, pension plans are tricky. There are a lot more issues to address in a QDRO document compared to a 401(k) plan. 401(k) plans are easy. With a 401(k) plan you have a current balance that can be split immediately. Pension plan are a promise to pay a future benefit and a lot can happen between now and the age that the covered spouse begins to collect pension payments. Pension plans can terminate, be frozen, employers can go bankrupt, or the spouse covered by the retirement plan can continue to work past the retirement date.
I would like to specifically address the final option in the paragraph above. In pension plans, typically the ex-spouse is not entitled to a benefit until the spouse covered by the pension plan is eligible to receive benefits. While the pension plan may state that the employee can retire at 65 and start collecting their pension, that does not mean that they will with 100% certainty. We have seen cases where the ex-husband could have retired at age 65 and started collecting his pension benefit but just to prevent his ex-wife from collecting on his benefit decided to delay retirement which in turn delayed the pension payments to his ex-wife. The ex-wife had included those pension payments in her retirement planning but had to keep working because the ex-husband delayed the benefit. Attorneys will often put language in a QDRO that state that whether the employee retires or not, at a given age, the ex-spouse is entitled to turn on her portion of the pension benefit. The attorneys have to work closely with the TPA of the pension plan to make sure the language in the QDRO is exactly what it need to be to reserve that benefit for the ex-spouse.
IRA (Individual Retirement Accounts)
IRA? are usually the easiest of the three categories to split because they do not require a Qualified Domestic Relations Order to separate the accounts. However, each IRA provider may have different documentation requirements to split the IRA accounts. The account owner should reach out to their investment advisor or the custodian of their IRA accounts to determine what documents are needed to split the account. Sometimes it is as easy as a letter of instruction signed by the owner of the IRA detailing the amount of the split and a copy of the signed divorce agreement. While these accounts are easier to split, make sure the procedures set forth by the IRA custodians are followed otherwise it could result in adverse tax consequences and/or early withdrawal penalties.
About Michael??...
Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.
