Two cases decided in January—one by the Sixth Circuit and another by the District Court for the District of Columbia—offer a cautionary tale to plan sponsors who rely on a statute or regulation that allows retroactive amendments to tax-qualified plans. Both cases involved a change to the interest and mortality assumptions that pension plans use to calculate the minimum amount of a lump sum distribution. The change was expressly authorized by a statute, but the Pension Benefit Guaranty Corporation said “not so fast”—leaving the plan sponsors responsible for several million dollars in additional liabilities.

The cases offer a cautionary tale for plan sponsors: practices that are permitted in one context will not necessarily be accepted in other contexts. For this reason, it is important to conduct a thorough analysis before relying on agency guidance or accepted practice.

Continue Reading Two Recent Cases Offer Cautionary Tale to Plan Sponsors Relying on IRS Guidance

The Consolidated and Continuing Appropriations Act, 2015 (or “Cromnibus”) revamped the notification and funding requirements under § 4062(e) of ERISA.  As interpreted by the Pension Benefit Guaranty Corporation (“PBGC”), § 4062(e) often required an employer to make substantial contributions or provide other financial commitments to a defined benefit plan when the employer ceased operations at one or more of its facilities.  The new rules are important because they reduce the number of employers and plans that will be exposed to § 4062(e) liability and might also reduce enforcement uncertainty for employers that trigger § 4062(e) liability.
Continue Reading New Law Reduces PBGC Exposure for Employers That Cease Operations at a Facility

The PBGC is proceeding with an initiative to collect information on what it calls “risk transfer activity” in defined benefit pension plans — essentially certain de-risking transactions — as part of the filing plan sponsors make when they pay PBGC premiums.  If approved by the Office of Management and Budget, the PBGC’s draft new premium form will require plan sponsors to report certain “Lump Sum Windows” and “Annuity Purchases” offered during the current or the preceding year.  As a result, the proposal would require reporting of certain transactions that occurred in 2014 or may occur in early 2015.
Continue Reading PBGC Proceeds With Proposal to Collect Information on Pension Risk Transfers

The Pension Benefit Guaranty Corporation (“PBGC”) recently finalized its rule on insurance for amounts rolled over from a defined contribution plan to a defined benefit plan.  Although amounts rolled over will be subject to greater protections than apply for most other benefits (i.e., benefits derived from employer contributions), the full rollover benefit will not necessarily be protected if the plan terminates with insufficient assets. Employers should assess the impact of the limitations on PBGC protection for their plans and consider updating participant communications to better explain the potential risks from a rollover to a defined benefit plan.
Continue Reading Understanding Limits on PBGC Protection for Amounts Rolled Over From a Defined Contribution Plan

The Chairs of the two Senate committees that govern pensions sent a letter last week to the heads of government agencies overseeing pensions requesting additional guidance on pension de-risking.  The letter was written by Senator Wyden (D-Or), as Chair of the Committee on Finance, and Senator Harkin (D-IA), as Chair of the Committee on Health, Education, Labor and Pensions, and the letter was directed to the heads of the Department of Treasury, Department of Labor, Pension Benefit Guaranty Corporation (PBGC), and the Consumer Financial Protection Bureau. 
Continue Reading Senators Identify Concerns and Call for Guidance on Pension De-Risking

A federal appeals court recently ruled that a private equity fund might be responsible for the unfunded pension liabilities of its bankrupt portfolio company.  This ruling could have broader repercussions for private investment funds and the companies they own.  If the companies are considered to be related employers under the rules that govern employee benefits, they might acquire other unexpected obligations, such as the obligation to provide health care to their employees.
Continue Reading Private Investment Funds Face Potential Liability for Portfolio Companies’ Employee Benefits

Private equity and other investment fund managers can exhale (at least a little bit) following a recent court ruling that investment funds are not liable for the ERISA obligations of their portfolio companies.  The ruling expressly rejects a 2007 Pension Benefit Guaranty Corporation (“PBGC”) letter ruling and contradicts an earlier court decision that supported the PBGC’s position that a private equity fund could be liable for the pension liabilities of one of its portfolio companies.  While the new ruling by no means settles the issue, investment fund managers should welcome this development.
Continue Reading Investment Funds Not Liable for Pension Plans of Portfolio Companies, Court Rules

The Pension Benefit Guaranty Corporation (“PBGC”) recently announced a change to its enforcement policy under ERISA § 4062(e) and issued answers to frequently asked questions on the subject.  The new enforcement policy would impose § 4062(e) liability only on large employers who are not “financially sound.”  As discussed below, however, the new policy does not provide complete relief.

ERISA § 4062(e) applies if an employer ceases operations at a facility and the cessation of operations results in 20% of the employees participating in the employer’s pension plan terminating employment.  If a § 4062(e) event occurs, the company must report the event to the PBGC and becomes responsible for a withdrawal liability.  The withdrawal liability is based on the plan’s underfunding on a termination basis times the percentage reduction of the active participants.  For most employers, the dollar amount can be quite significant.
Continue Reading PBGC Changes Section 4062(e) Enforcement Policy, But Not Expansive Interpretation of Section 4062(e)

Several developments in recent months have made settling pension liabilities look more attractive to sponsors of defined benefit plans seeking to de-risk:  First, Ford and GM announced pension settlements of unprecedented size.  Second, Congress passed a pension funding relief bill, known as “MAP-21,” that could encourage pension settlements.  And, third, the IRS issued three private letter rulings providing useful guidance covering lump sum settlements and annuitizations.
Continue Reading De-risking Through Pension Settlements Becomes More Attractive