Some actions can be taken with no cost, other than the cost of correction itself. Other actions require the sponsor to pay a fee to the IRS. This program is documented in Revenue Procedure 2016-51, Section 12. The Pension Protection Act of 2006 authorized the government to continue to improve the correction program to encourage employers to correct defects. In 2015 and 2016, the IRS did revise the program to provide more flexibility on plan correction approaches. Detailed information on the current status of the correction program is available at www.irs.gov/Retirement-Plans/EPCRS-Overview.
Because the Pension Protection Act included a directive from Congress to the IRS to make this relief program even more flexible in order to help sponsors retain the exempt status of their plans, it is likely that the IRS will continue to provide more relief both in terms of the correction process and the items eligible for correction. As such, the auditor needs to be familiar with the most recent version of this ever evolving program.
Knowledge check
1 Which plans are not subject to ERISA’s minimum vesting standards?Employee stock ownership plans.Welfare benefit plans.401(k) plans.Cash balance plans.
Key plan operational concepts
Fiduciary conduct
Both Title I (DOL provisions) and Title II (IRS provisions) of ERISA require that the plan be operated for the benefit of the plan participants and beneficiaries. This is the fiduciary duty. The Plan Administrator and the Trustee are typically the “fiduciaries” with respect to the plan. But, ERISA defines that term much more broadly. Basically, any party that has discretionary authority with respect to the plan may be classified as a “fiduciary.” The result is that all of those parties must exercise this standard of care with respect to the plan participants or beneficiaries. This is sometimes referred to as the “prudent expert” standard as it is not just a layman’s standard of care, but the standard of care expected of a person who is familiar with the law.
A fiduciary is required to follow the plan agreement, except to the extent that the written agreement is at odds with ERISA.
Direct filing entities
It is becoming more and more common that plans acquire their investments indirectly, rather than having direct ownership of securities or other assets. The most common form of ownership is through a mutual fund. Mutual funds do not trigger any separate reporting. Other indirect forms of ownership do require additional reporting that affects the audit and the financial report.
These are generally referred to as “Direct Filing Entities,” though that is somewhat of a misnomer, as not all such entities are required to file separately.
The types of direct filing entities (DFEs) are as follows:
Master Trust Investment Account (MTIA)– A master trust is a trust for which a “regulated financial institution” serves as trustee or custodian (regardless of whether such institution exercises discretionary authority or control with respect to the management of assets held in the trust), and in which assets of more than one plan sponsored by a single employer or by a group of employers under “common control” are held.Common control is determined on the basis of all relevant facts and circumstances (whether or not such employers are incorporated).A regulated financial institution means a bank, trust company, or similar financial institution that is regulated, supervised, and subject to periodic examination by a state or Federal agency. A securities brokerage firm is not a similar financial institution.A master trust investment account may consist of a pool of assets or a single asset. Each pool of assets held in a master trust must be treated as a separate MTIA if each plan that has an interest in the pool has the same fractional interest in each asset in the pool as its fractional interest in the pool, and if each such plan may not dispose of its interest in any asset in the pool without disposing of its interest in the pool. A master trust may also contain assets that are not held in such a pool. Each such asset must be treated as a separate MTIA.
Common Collective Trust (CCT)– A common collective trust is a trust maintained by a bank, trust company, or similar institution which is regulated, supervised, and subject to periodic examination by a state or Federal agency for the collective investment and reinvestment of assets contributed thereto from employee benefit plans maintained by more than one employer or a controlled group of corporations.
Pooled Separate Account (PSA)– A pooled separate account is substantially similar to a CCT, except that a regulated insurance company holds the funds.
Group Insurance Arrangement (GIA)– A group insurance arrangement provides benefits to the employees of two or more unaffiliated employers (not in connection with a multiemployer plan or a collectively-bargained multiemployer plan), fully insures one or more welfare plans of each participating employer, uses a trust or other entity as the holder of the insurance contracts, and uses a trust as the conduit for payment of premiums to the insurance company.
103-12 Entity– The most obscure of the DFEs is the 103-12 entity. It is defined in the ERISA regulation for which it is named. A 103-12 entity is frequently a trust or partnership, which is not one of the preceding entities. It holds assets of more than one plan. Separate filing is elective, but such filing allows the plan to report its investment interest in the entity. Absent this separate reporting, the plan must report the plan’s share of each of the entity’s underlying assets and, if material, the auditor would consider procedures to audit this underlying activity.
Single, multi-, and multiple employer plans
Form 5500 defines kinds of filers as different types of plan entities.
A single employer plan is a plan maintained by one employer or one employee organization. A plan of a controlled group of corporations or common control employers is considered a single employer plan for ERISA purposes. This exists when one plan is maintained for a controlled group of corporations, a group of trades or businesses under common control, or an affiliated service group. If a member of any of these groups maintains a plan that does not involve other group members, then a separate Form 5500 is filed as a single employer plan.
A plan is a multiemployer plan if
more than one employer is required to contribute;
the plan is maintained pursuant to one or more collective bargaining agreements between one or more employee organizations and more than one employer; and
an election under IRC Section 414(f)(5) and ERISA Section 3(37)(E) has not been made or has been revoked as permitted by the Pension Protection Act of 2006. The plan sponsor of a multiemployer plan, with whom ultimate administrative responsibility rests, is a joint employer or union board of trustees.
Participating employers do not file individually for these plans.
Multiemployer plans are unique in that assets contributed by one employer may be used to pay benefits of another participating employer. If a participating employer fails to make its required contributions, the unfunded obligation may be borne by the remaining participating employers. In addition, an employer that stops participating in the plan is generally required to pay a withdrawal liability.
Multiple employer plans are plans that are maintained by more than one employer but not treated as a multiemployer plan. Multiple employer plans are generally not collectively bargained and are intended to allow participating employers to pool their assets for investment purposes and to reduce the costs of plan administration. A multiple employer plan maintains separate accounts for each employer so that contributions provide benefits only for employees of that contributing employer.
If a multiple employer plan (other) provides welfare benefits, it is sometimes characterized