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Retirement Plan Benefits and Prenuptial Agreements Do Not Mix

“My client asked me what effect, if any, a prenuptial agreement would have on 401(k) plan assets?

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare.  We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with an advisor in California is representative of a common question related to spouses as retirement plan beneficiaries.

Highlights of Discussion

Generally, a prenuptial or antenuptial agreement  is an agreement made between a couple before they legally marry by which they forfeit future rights to each other’s property in the event of a divorce or death. The short answer is that a prenuptial agreement has no impact on a spouse’s claim to 401(k) plan assets because it does not satisfy the applicable spousal consent requirements of Internal Revenue Code Section (IRC §) 417(a)(2) and Treasury Regulation Section (Treas. Reg.) 1.401(a)-20, Q&A 28.

In most cases, spousal consent is required before a plan can pay out benefits in a form other than a Qualified Joint and Survivor Annuity. The Retirement Equity Act of 1984 (REA) added the mandate to obtain spousal consent before a plan participant could take a distribution so that the nonemployee spouse would have some control over the form of benefit the participant chose, and would, at the very least, be aware that retirement benefits existed. There are exceptions to the spousal consent rule when

  1. The payable benefit is ≤ $5,000;
  2. There is no spouse or the spouse cannot be located;
  3. The spouse has been legal abandoned or the couple is legally separated;
  4. The spouse is incompetent; or
  5. The plan must satisfy requirement minimum distribution rules.

Even if a 401(k) plan is drafted as a “REA Safe Harbor Plan” (meaning it meets the criteria to be exempt from the QJSA requirements)[1], the spouse must generally consent in writing to the naming of anyone other than the spouse as primary beneficiary.

For its reasoning on antenuptial agreements, the IRS relied on several court cases, which found that the antenuptial agreements were not valid because, in part, they were signed by the participant’s fiancée (not spouse), and the agreements did not comply with REA since they did not specify the nonspouse beneficiary who would receive the benefit [See Hurwitz v. Sher, 982 F.2d 778 (2d Cir. 1992), cert. denied, 508 U.S. 912 (1993) and Nellis v. Boeing Co., No. 911011, 15 E.B.C. 1651 (D.Kan. 5/8/1992)].

Conclusion

Based on numerous court cases and Treasury Regulations, the IRS has made it clear that a prenuptial agreement has no impact on a spouse’s claim to 401(k) plan assets.

 

[1] Treas. Reg. 1.401(a)-20, Q&A 3

 

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Active Plan Participation May Affect IRA Deductibility

“Active participation in an employer’s retirement plan can affect whether an IRA contribution made by the participant is deductible on the tax return. What does ‘active participation’ mean?”

ERISA consultants at the Retirement Learning Center Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings plans.  We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from Minnesota is representative of a common inquiry involving a taxpayer’s ability to make a deductible IRA contribution.

Highlights of Discussion

This is an important tax question that can only be answered definitively by a person’s own tax advisor.  Generally speaking, for purposes of the IRA deduction rules, an individual is an “active participant” for a taxable year if either the individual or the individual’s spouse actively participates during any part of the year in a(n)[1]

  • Qualified plan described in Internal Revenue Code Section [IRC §401(a)], such as a defined benefit, profit sharing, 401(k) or stock bonus plan;
  • Qualified annuity plan described in IRC §403(a);
  • Simplified employee pension (SEP) plan under IRC §408(k);
  • Savings incentive match plan for employees (SIMPLE) IRA under IRC §408(p);
  • Governmental plan established for its employees by the federal, state or local government, or by an agency or instrumentality thereof (other than a plan described in IRC §457);
  • IRC §403(b) plan, either annuity or custodial account; or
  • Trust created before June 25, 1959, as described in IRC §501(c)(18).

When an individual is considered active depends on the type of employer-sponsored plan.

Profit Sharing or Stock Bonus Plan:   During the participant’s taxable year, if he or she receives a contribution or forfeiture allocation, he or she is an active participant for the taxable year.

Voluntary or Mandatory Employee Contributions:  During the participant’s taxable year, if he or she makes voluntary or mandatory employee contributions to a plan, he or she is an active participant for the taxable year.

Defined Benefit Plan: For the plan year ending with or within the individual’s taxable year, if an individual is not excluded under the eligibility provisions of the plan, he or she is an active participant for that taxable year.

Money Purchase Pension Plan: For the plan year ending with or within the individual’s taxable year, if the plan must allocate an employer contribution to an individual’s account he or she is an active participant for the taxable year.

Refer to IRS Notice 87-16 for specific examples of active participation.

As a quick check, Box 13 on an individual’s IRS Form W-2 should contain a check in the “Retirement plan” box if the person is an active participant for the taxable year.

If an individual is an active participant, then the following applies for IRA contribution deductibility.  The maximum traditional IRA contribution for 2020 and 2021 is $6,000 for those under age 50 and $7,000 for those age 50 0r greater.

IF your filing
status is …
AND your modified adjusted gross income (modified AGI)
is …
THEN you can take …
single or
head of household
$65,000 or less a full deduction.
more than $65,000
but less than $75,000*
a partial deduction.
$75,000 or more no deduction.
married filing jointly or
qualifying widow(er)
$104,000 or less a full deduction.
more than $104,000
but less than $124,000**
a partial deduction.
$124,000 or more no deduction.
married filing separately2 less than $10,000 a partial deduction.
$10,000 or more no deduction.
Not covered by a plan, but married filing jointly with a spouse who is covered by a plan  $196,000 or less a full deduction.
  more than $196,000
but less than $206,000***
a partial deduction.
Source:  IRS 2020 IRA Deduction Limits

 

$206,000 or more no deduction.
*$66,000-$76,000 for 2021; **$105,000-$125,000 for 2021; and ***$198,000-$208,000 for 2021

 

Conclusion

Participating in certain employer-sponsored retirement plans can affect an individual’s ability to deduct a traditional IRA contribution on an individual’s tax return for the year. The IRS Form W-2 should indicate active participation in an employer-sponsored retirement plan. When in doubt, taxpayers should check with their employers.

 

 

[1] See www.legalbitstream.com for IRS Notice 87-16

 

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The Line Between Education and Fiduciary Advice

Does the industry have a clear definition of what the Department of Labor (DOL) would consider investment education (not advice) in a 401(k) plan so that a financial advisor would not have to follow the requirements of Prohibited Transaction Exemption (PTE) 2020-02?

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare.  We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with an advisor in Minnesota is representative of a common question related to investment education.

Highlights of Recommendations

The DOL believes it provides a clear roadmap for determining when financial advisors are, and are not, investment advice fiduciaries under Title I of the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (IRC) in PTE 2020-02 and Interpretive Bulletin (IB) 96-1. 

“Oldie but goodie” DOL IB 96–1 identifies four categories (or “safe harbors”) of investment-related educational materials that advisors or others can provide to plan participants and beneficiaries without being considered to have provided fiduciary investment advice: 1) Plan information, 2) General Financial and Investment Information, 3) Asset Allocation Models and 4) Interactive Investment Materials.

Plan Information

Information about the benefits of plan participation, the benefits of increasing plan contributions, the impact of preretirement withdrawals on retirement income, the terms of the plan, the operation of the plan, or descriptions of investment alternatives under the plan would not constitute investment advice.

General Financial and Investment Information

General financial and investment concepts, such as risk and return, diversification, dollar cost averaging, compounded return, and tax-deferred investment; historic differences in rates of return between different asset classes (e.g., equities, bonds, or cash) based on standard market indices; effects of inflation; estimating future retirement income needs; determining investment time horizons; and assessing risk tolerance would not constitute investment advice.

Asset Allocation Models

Examples would include pie charts, graphs, or case studies that provide a participant or beneficiary with asset allocation portfolios of hypothetical individuals with different time horizons and risk profiles.  Such models must satisfy the following requirements.

  1. The models must be based on generally accepted investment theories that take into account the historic returns of different asset classes (e.g., equities, bonds, or cash) over define periods of time.
  2. All material facts and assumptions on which such models are based (e.g., retirement ages, life expectancies, income levels, financial resources, replacement income ratios, inflation rates, and rates of return) must accompany the models.
  3. To the extent that an asset allocation model identifies any specific investment alternative available under the plan, the model must be accompanied by a statement that
    • Indicates that other investment alternatives having similar risk and return characteristics may be available under the plan;
    • Identifies where information on those investment alternatives may be obtained; and
    • Discloses that, when applying particular asset allocation models to their individual situations, participants or beneficiaries should consider their other assets, income, and investments (e.g., equity in a home, IRA investments, savings accounts, and interests in other qualified and non-qualified plans) in addition to their interests in the plan.

Interactive Investment Materials

Examples in this category could include, but are not limited to, questionnaires, worksheets, software, and similar materials that provide a participant or beneficiary the means to estimate future retirement income needs and assess the impact of different asset allocations on retirement income.

Such materials must

  1. Be based on generally accepted investment theories that take into account the historic returns of different asset classes (e.g., equities, bonds, or cash) over defined periods of time;
  2. Contain an objective correlation between the asset allocations generated by the materials and the information and data supplied by the participant or beneficiary;
  3. Include all material facts and assumptions (e.g., retirement ages, life expectancies, income levels, financial resources, replacement income ratios, inflation rates, and rates of return) that may affect a participant’s or beneficiary’s assessment of the different asset allocations (Note: These facts and assumptions could be specified by the participant or beneficiary);
  4. (To the extent they include an asset allocation generated using any specific investment alternatives available under the plan), include a statement indicating other investment alternatives having similar risk and return characteristics may be available under the plan and where information on those investment alternatives may be obtained; and
  5. Take into account or are accompanied by a statement indicating that, in applying particular asset allocations to their individual situations, participants or beneficiaries should consider their other assets, income, and investments (e.g., equity in a home, IRA investments, savings accounts, and interests in other qualified and nonqualified plans) in addition to their interests in the plan.

While the provision of investment education is not a fiduciary act, the designation of a person or entity to provide investment educational services to plan participants and beneficiaries is a fiduciary act. Therefore, persons making this designation must act prudently and solely in the interest of the plan participants and beneficiaries.

Conclusion

The DOL provides examples of investment education in IB 96-1 that, when delivered, would not be considered investment advice, thereby helping the educator to avoid fiduciary liability for the information. However, the act of selecting the individual or entity to provide investment education to 401(k) plan participants and beneficiaries is a fiduciary act, subject to the standards of loyalty and prudence.

 

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How to Make a Legit $28,000 IRA Contribution

A colleague of mine said a 60-year-old couple who is a client of his just made a $28,000 IRA contribution. Is this some kind of new rule? I thought the maximum annual contribution was $6,000, with a potential additional $1,000 catch-up contribution for someone age 50 and over?

Highlights of Recommendations

  • A $28,000 IRA contribution for the couple is possible, courtesy of a combination of several IRS rules covering
  1. carry-back and current year contributions,
  2. spousal contributions and
  3. catch-up contributions.
  • From January 1, 2021 to May 17, 2021[1], it is potentially possible for a traditional or Roth IRA owner age 50 and over to make a $14,000 contribution: $7,000 as a 2020 carry-back contribution and $7,000 as a 2021 current-year contribution. That means a married couple filing a joint tax return could potentially make a $28,000 IRA contribution, with $14,000 going to each spouse’s respective IRA (either Roth or Traditional).
  • When making the contributions it is important to clearly designate to the IRA administrator that a portion is a carry-back contribution for 2020 and a portion is a 2021 current-year contribution in order to avoid having the full amount treated as a current-year contribution and, subsequently, an excess contribution for 2021.
  • Such a large combined contribution would only be possible if
    • The couple had not previously made a 2020 contribution to a traditional or Roth IRA,
    • Each spouse was age 50 or older as of 12/31/2020,
    • The couple has earned income for 2020 and 2021 to support the contributions, and
    • For a Roth IRA contribution, the couple’s income is under the modified adjusted gross income (MAGI) limits for Roth IRA contribution eligibility (see below).
  • Whether the traditional IRA contributions would be tax deductible depends upon “active participation” of either spouse in a workplace retirement plan[2] and the couple’s MAGI.
  • Please see the applicable MAGI ranges in the following chart.
Traditional IRA Eligibility for Deductible Contributions
Taxpayer Category 2021 MAGI Phase-Out Ranges 2020 MAGI Phase-Out Ranges
Married active participant filing a joint income tax return $105,000-$125,000 $104,000-$124,000
Single active participant $66,000-$76,000 $65,000-$75,000
Married active participant filing separate income tax return $0-$10,000 $0-$10,000
Spouse of an active participant $198,000-$208,000 $196,000-$206,000

Roth IRA Contribution Eligibility

Taxpayer Category 2021 MAGI Phase-Out Ranges 2020 MAGI Phase-Out Ranges
Married filing a joint income tax return $198,000-$208,000 $196,000-$206,000
Single individuals $125,000-$140,000 $124,000-$139,000
Married filing separate income tax return $0-$10,000 $0-$10,000

 

Conclusion

The deadline for making 2020 traditional or Roth IRA contributions is May 17, 2021. That means there is a window of opportunity that allows eligible couples to double up on IRA contributions (for 2020 as a carry-back contribution and one for 2021 as a current-year contribution) to the tune of $28,000.

 

 

[1] Usually, April 15th, but the IRS extended the 2020 tax filing deadline to May 17, 2021

[2] See Active Plan Participant and IRA Contributions

 

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Does the receipt of dividends on employer stock held in a 401(k) plan negate a lump sum distribution?

“One of my clients is currently receiving quarterly dividend payments on employer stock he has in his 401(k) plan. Does the receipt of dividends on employer stock held in a 401(k) negate his ability to receive a lump sum distribution and, consequently, my client’s ability to take advantage of the special tax rules for net unrealized appreciation (NUA) in employer securities?”

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare.  We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor in New Jersey is representative of a common scenario involving participants with employer stock in a 401(k) plan.

Highlights of the Discussion

While payments of dividends are considered distributions for certain purposes (Temporary Treasury Regulation 1.404(k)-1T, Q&A3), the IRS has, in at least two private letter rulings (PLR 19947041 and 9024083[1]) concluded that such dividends are not treated as part of the “balance to the credit” of an employee for purposes of determining a lump sum distribution under IRC § 402(e)(4)(D). Therefore, such distributions do not prevent a subsequent distribution of the balance to the credit of an employee from being considered a lump sum distribution for NUA purposes if all other requirements are met.

For more information on the definition of lump sum distribution, please see RLC’s Case of the Week Lump Sum Distribution Triggers and NUA.

Conclusion

A participant’s receipt of dividends from employer stock held in a qualified plan do not prevent a subsequent distribution of the balance to the credit of the participant from being a lump sum distribution for NUA tax purposes.

 

[1] See www.legalbitstream.com

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Linking Student Loan Repayments and 401(k) Plan Contributions

“I’m hearing more and more about 401(k) plans that allow participants to receive employer matching contributions based on their student loan payments. Is this permitted? What about the contingent benefit rule?”

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare.  We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor in Colorado is representative of a common scenario involving 401(k) participants with student loan debt.

Highlights of the Discussion

According to the Federal Reserve, student loan debt has reached a staggering amount: $1.52 trillion. For many younger workers it has become a huge stumbling block to achieving financial wellness, including saving for retirement. A new in-plan approach to addressing student loan debt is to provide some kind of loan repayment incentive through the employer’s 401(k) plan. The industry has been hearing more and more about such arrangements, especially following an IRS private letter ruling (PLR) issued in 2018 to Abbott Laboratories and new proposed legislation in 2020.

PLR 201833012 cracked open the door to encourage retirement savings by those saddled with student loan debt. In the method approved by the IRS in the PLR’s scenario, an employee with student loans was be able to enroll in his employer’s 401(k) plan, make monthly student loan payments to the loan servicer outside of the plan, and have his employer make “student loan repayment nonelective contributions” into the employee’s 401(k) retirement account that “matched” the participant’s loan payment, up to a certain amount.  Since the nonelective contribution was not contingent upon making employee salary deferrals, the plan did not violate the “contingent benefit” prohibition of Treasury Regulation §1.401(k)-1(e)(6).  The contingent benefit rule prohibits conditioning the receipt of other employer-provided benefits on whether an employee makes employee elective salary deferrals. Receiving matching contributions is the sole exception to this rule. The PLR did not address whether the plan meets other qualification requirements under IRC Sec. 401(a).

A PLR may not be relied on as precedent by other taxpayers. Consequently, while the interest of plan sponsors is there to use their companies’ 401(k) plans to help employees reduce student loan debt and improve financial wellness, and a few companies have stuck their toes in the water, the general uncertainty of how the feature would affect a plan’s overall qualified status in the eyes of the IRS still hinders its widespread adoption.

To help curb employer reticence, there is currently a proposal before Congress entitled the Securing a Strong Retirement Act of 2020 that includes Section 110: Treatment of student loan payments as elective deferrals for purposes of matching contributions. Under the bill, an employer would be permitted to make matching contributions under a 401(k) plan, 403(b) plan, or Savings Incentive Match Plan for Employees (SIMPLE) IRA plan with respect to “qualified student loan payments,” the definition of which is broadly defined as any indebtedness incurred by the employee solely to pay “qualified higher education expenses” of the employee. Similarly, governmental employers would also be permitted to make matching contributions in a 457(b) plan or another plan with respect to such loan repayments. This would essentially treat an employee’s student loan payment as an elective deferral.

Regardless of what happens to SECURE Act 2.0, the IRS has made guidance on the connectivity of student loan payments and qualified retirement plans (including 403(b) plans) at top priority for 2021.[1]

Conclusion

Employers are focusing on employee financial wellness, including adopting measures to help alleviate student loan debt and encourage retirement savings. One enticing option that advances both goals, potentially, is linking student loan repayments with 401(k) plan contributions. The industry can anticipate more guidance in 2021—whether in the form of new Treasury Regulations or federal law.

[1] IRS 2021 Priority Guidance Plan

 

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Limited Liability Companies and Income for Plan Purposes

“My client, who is a partner in a Limited Liability Company (LLC), would like to contribute to a retirement plan and wants to know what compensation she should use for contribution purposes?”

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare.  We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor in New York is representative of a common scenario involving a partner in an LLC.

Highlights of the Discussion

Because this question deals with specific tax information, business owners should always seek the guidance of a tax professional for advice on their individual situations.  What follows is general information.

For federal tax purposes, the IRS, typically, treats an LLC as a partnership, which must file IRS Form 1065, U.S. Return of Partnership Income for the business.[1] There are exceptions to this rule, so a client should be encouraged to determine the exact nature of the business’s tax structure with a tax advisor. For example, a domestic LLC with at least two members is classified as a partnership for federal income tax purposes unless it files Form 8832, Entity Classification Election and elects to be treated as a corporation.

Any retirement plan established would need to cover the LLC as a whole. For plan purposes, assuming the LLC is a partnership, each partner of the LLC should receive a Schedule K-1 (Form 1065) for his or her share of income or losses associated with the business. Therefore, a partner in an LLC would use his or her earnings from self employment reported on the Schedule K-1 (Form 1065) to determine contributions for plan purposes.

Conclusion

When faced with a client who has a tax-related question, it is always prudent to direct the client to his or her own tax advisor for definitive answers. Generally, owners of an LLC are partners for tax purposes, but exceptions may apply. Partners use earnings from self employment reported on the Schedule K-1 (Form 1065) for plan purposes.

[1] LLC Filing as a Corporation or Partnership

 

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Plan Establishment Deadlines

“Is it too late to establish a qualified retirement plan for 2020?”

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare.  We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from Arizona is representative of a common inquiry related to setting up qualified retirement plans.

Highlights of the Discussion

As a result of the Setting Every Community Up for Retirement Enhancement (SECURE) Act, businesses have more time to set up plans for a particular tax year.

Prior to the SECURE Act, a business that wanted a qualified retirement plan (e.g., 401(k), profit sharing, money purchase pension, defined benefit pension plan, etc.) for a particular tax year had to establish it by the last day of the business’s tax year. For example, a calendar year business had to sign documents to set up the plan by December 31 of the tax year in order to be able to contribute to and take a deduction for contributions.

For 2020 and later tax years, a business has more time—until its tax filing deadline, plus extensions for a particular tax year—to set up a plan. Notice the plan establishment deadline is tied to the type of business entity (e.g., sole proprietor, partnership, corporation, etc.) and its associated tax filing deadline as illustrated below. [Note: Simplified employee pension (SEP) plans have historically followed this schedule; and special set-up rules apply for safe harbor 401(k) plans.]

Tax Status Filing Deadline Extended Deadline
S-Corporation (or LLC taxed as S-Corp) March 15 September 15
Partnership (or LLC taxed as a part) March 15 September 15
C-Corporation (or LLC taxed as C-Corp) April 15 October 15
Sole Proprietorship (or LLC taxed as sole prop) April 15 October 15

EXAMPLE:  Doin’ Great, Inc., has an extended tax filing deadline of October 15, 2021, for its 2020 tax year. The owners of Doin’ Great decide in early 2021 they would like to set up a 401(k)/profit sharing plan for the business for 2020. They have until October 15, 2021, to execute plan documents to set up the plan, effective for 2020. While Doin’ Great would be able to make a profit sharing contribution on behalf of participants for 2020, participants can only make pre-tax employee salary deferrals and designated Roth contributions prospectively—meaning after they execute valid salary deferral elections for compensation yet to be received in 2021.

Conclusion

Thanks to the SECURE ACT, for 2020 and later tax years, a business has more time—until its tax filing deadline, plus extensions for a particular tax year—to set up a plan.

 

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Covid-Related Paid Sick Leave and Salary Deferrals

My client sponsors a 401(k) plan for her employees.  She has had a number of employees taking sick leave due to Covid-related reasons. Is Covid-related sick pay considered compensation for making employee salary deferrals?”

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare.  We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from Washington is representative of a common inquiry related qualified leave wages.

Highlights of the Discussion

The Families First Coronavirus Response Act (FFCRA) requires certain covered employers to provide eligible employees with paid sick leave (for two weeks) and expanded family and medical leave pay (for an additional 10 weeks) if taken for specified reasons related to COVID-19. The Department of Labor published a helpful FFCRA summary for employers that define which employers are affected, who eligible employees are and how to calculate the qualified leave wages.

The IRS further clarified in question and answer (Q&A) #54 of a Special Issues News Release that plan sponsors should include qualified leave wages paid to employees due to the COVID-19 pandemic as plan compensation, unless that plan’s provisions specifically exclude this compensation from the definition. See excerpt below from Q&A #54.

“The FFCRA does not distinguish qualified leave wages from other wages an employee may receive from the employee’s standpoint as a taxpayer; thus, the same rules that generally apply to an employee’s regular wages … would apply from the employee’s standpoint.  To the extent that an employee has a salary reduction agreement in place with the Eligible Employer, the FFCRA does not include any provisions that explicitly prohibit taking salary reduction contributions for any plan from qualified sick leave wages or qualified family leave wages.”

Conclusion

Unless a 401(k) plan’s provisions specifically exclude Covid-19-related qualified leave wages, plan sponsors should include such amounts in the definition of compensation for plan purposes.

 

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Special Purpose Acquisition Company (SPAC) Investing

I have a client with the opportunity to invest in a Special Purpose Acquisition Company (SPAC). The client wants to use retirement assets (e.g., IRA or 401(k) plan assets) for the SPAC investment. Can this be done?”

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare.  We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from New York is representative of a common inquiry related SPACs.

Highlights of the Discussion

This question can only be fully answered by your client’s tax and legal advisors. The following response provides some general information on the topic based on the guidance issued to date. It is for informational purposes only and cannot be relied upon as tax or legal advice.

Your client may be able to invest in a SPAC using retirement assets, but another question to ask is should he or she. That’s where expert guidance from his or her tax and legal counsel is necessary. To be sure, SPACs have been getting a great deal of media attention of late, and many individuals are interested in using retirement account assets to invest in SPACs. To level set, let’s first define some terms so we have a basic understanding of the transaction.

A SPAC is a corporation with the sole purpose of raising capital to acquire (actually merge with) a privately held entity, which is then taken public. The SPAC itself has no ongoing business operations and is used exclusively to raise capital for the acquisition. The end result of the SPAC process is similar to that of an initial public offering (IPO), which is the process of offering shares of a private corporation to the public for purchase.  The SPAC process has fewer Securities and Exchange Commission (SEC) restrictions and requirements and, thus, may be preferable in certain situations. Investors simply pool their money and create the SPAC. The SPAC goes public as a shell company, targets a real company that wants to go public, and the two entities (the SPAC and target company) merge.  For example, here is a List of Shell Companies or Special Purpose Acquisition Companies.

There are no laws or regulations that explicitly prohibit the use of IRA assets to invest in SPACs. That said, however, one concern is whether the IRA custodian or trustee would permit such an investment to be held in the IRA.  Also, depending on the relationship between the investor, the SPAC and the target company, one would need to be sure no prohibited transactions occur.

Similar concerns exist with using 401(k) assets to invest is SPACs. In addition, it is unlikely a plan sponsor would permit a SPAC as an investment option in a 401(k) plan, but it may be possible to make a SPAC investment through a self-directed brokerage account within the plan, if one was available. These are complex waters and plan officials should proceed with caution, and only with the advice of legal counsel.

Conclusion

SPACs may be hot—and maybe too hot to handle with retirement plan assets without expert guidance.

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