Is It “Buyer Beware” with New Rollover Self-Certification?

Barb Van Zomeren, Vice President, ERISA

Federal agency retirement plan guidance has taken some interesting and surprising turns in recent months. But if there is a prevailing direction to these developments, it is toward minimizing the expenditure of personnel resources, and relying less on Congress to get things done.

We’ve certainly seen this with the Department of Labor (DOL) conflict-of-interest regulations, as well as their guidance for state coordination of retirement plans for private sector workers. The Internal Revenue Service (IRS) has made radical changes in its determination letter program, clearly with the goal of reducing manpower devoted to that process. Most recently, the IRS has taken major steps to liberalize the process of granting waivers for IRA rollovers that fail to be executed within the normal 60-day window allowed for such transactions.

“Once upon a time,” as the fairy tale goes, the IRS maintained that it had no authority to extend the statutory 60-day period for completing an indirect rollover between IRAs, or between an employer-sponsored retirement plan and an IRA. EGTRRA, the Economic Growth and Tax Relief Reconciliation Act of 2001, changed that, giving the IRS the authority to waive the 60-day deadline if failure to do so “would be against equity and good conscience.”

IRS guidance in 2003 set out the conditions for obtaining a waiver, identifying multiple conditions – such as financial organization error, disaster, illness, incarceration, and others – that might justify an extension in order to complete a rollover and avoid unwanted tax consequences. In some cases, such as financial organization error, the waiver could be automatic. In others, the taxpayer had to apply to the IRS for a private letter ruling, or PLR.

PLRs have never been free, but the fee for these rollover waiver PLRs began at less than $100; a real bargain as IRS fees go, and many, many taxpayers took advantage of it. Rollover waiver PLRs became by far the most numerous to be issued. Over several years the fee was increased to a range between $500 and $3,000, depending on the volume of assets involved. Finally, in 2016, the IRS eliminated the special reduced fee, and the cost rose to a daunting $10,000. Clearly, the only taxpayers who would apply for a rollover waiver were likely to be those with a great deal at stake if the 60-day limitation could not be waived.

Little IRS or DOL guidance is issued without either being identified on their priority guidance plans, or via leaks of insider information revealing what these agencies are about to issue. Guidance that does not rise to the level of regulations is not reported as pending with the federal office of Management and Budget (OMB), so for any guidance below regulations-level there is no tip-off from that source.

Against this backdrop, IRS release of Revenue Procedure 2016-47 on August 24 came without hint or advance fanfare, and apparently little, if any, advance industry awareness. The latest update to the IRS priority guidance plan had made no mention of sub-regulatory IRA guidance on rollovers.

  

The IRS has provided what at first glance seems like a very generous option for taxpayers to claim eligibility for an extension of the 60-day limitation on executing rollovers. Now, many of the justifications that might have earned a waiver in the PLR process are available in what seems an almost automatic fashion. Illness, damage to one’s residence, postal errors, serious injury or death of a family member – even misplacing a check – are among 11 reasons for self-certifying one’s eligibility for a waiver, requiring no blessing from the IRS.

Is there a dark lining to this apparent silver cloud? Obtaining a waiver from a rule that could otherwise yield unpleasant tax consequences is obviously of great benefit to a taxpayer moving assets from one savings arrangement to another, and missing the deadline. But this guidance is not without some “maybes.” The most sure and certain of its positive effects is to grant protection to IRA custodians and trustees, and plan administrators, who receive rollovers under the self-certification process. They may rely on the representations of the taxpayer providing the certification, unless they have actual knowledge that the reason is invalid.

The real ambiguity is faced by the taxpayer himself. For example, what constitutes severe damage to a taxpayer’s principal residence, one of the exemptions cited in the latest guidance? What does “seriously ill” mean? What is “a postal error” that would prevent completion of a rollover? How could a taxpayer substantiate that he believed a non-retirement account was a retirement account when he mistakenly made the deposit? These are but a few examples among the 11 for self-certification.

  

Missing are details to help a taxpayer be certain that he or she meets some of these less-than-straightforward conditions for self-certification. That could be a bad thing or a good thing, depending on your viewpoint. Certainty will not be easy in some situations. That will bother some taxpayers, and may lead them – if the stakes are high enough – to seek an actual PLR. Others may feel just the opposite. If the door has been opened for them to give themselves “wiggle room” in an ambiguous self-certification situation, they may go for it and take comfort in the low probability of their ever being audited.

That certainly will not make every potentially eligible taxpayer comfortable. Nor should it.

Why Are Fees Our Only Focus?

If I were to name one ongoing issue that has absorbed more time and energy for retirement industry regulators, and has been the paramount compliance concern for plan administrators, it would have to be plan fees.  Investment fees, administrative fees, transaction fees, there has been a concerted effort by regulatory agencies and policymakers to limit the negative effects that fees can have on the account balances of retirement plan participants.  Disclosure regulations, best interest regulations, benefit statement requirements, all in some manner reflect fees and their perceived importance.

This fee-focused thinking has also influenced the growth of a cottage industry for law firms that have seen an opportunity to litigate.  Their presumptive stance seems to be that lower fees are always desirable.  The Department of Labor has been highly visible as an amicus curiae supporter of plaintiffs in fiduciary breach cases, and law firms have no reason to expect the DOL to be anything but an ally in such litigation. 

Yet there are other important factors besides fees alone that influence the account balances that workers will take with them into retirement.  Some are partly or entirely within the control of the worker, yet they are not talked about as they should be; if they’re discussed at all.  Tunnel-visioned preoccupation with minimizing fees, rather than promoting more aggressive saving and improving investing behavior or reducing “leakage”, can lead to retirement accounts that under-perform in the long run. 

A presentation by Tom Kmak, from the firm Fiduciary Benchmarks,  at a recent conference really caught my attention.  It was entitled Stopping the Race to the Bottom and caught my attention with thought-provoking points about the numerous factors that can influence retirement savings accumulations.  It’s their conclusion that fees are well down the list of most important factors.  This is somewhat ironic since Tom Kmak’s firm is the leading fee benchmarking service in the industry.  Tom’s presentation basically lays out the argument that the DOL in many ways, including their own booklet on 401(k) Fees, notes that fees should not be considered in a vacuum.  Tom then uses mathematical examples to show why the DOL stance is in fact the moral high ground.  Or as Tom would say: “Fees without Value is like knowing ½ the score of a football game.”

In any event, I believe the suggestions they make for boosting retirement accumulations are worth pointing out.  This kind of information should be in every employee enrollment meeting, in participant investment education, and stressed at every reasonable opportunity when a plan and a participant interact.

Some may not be enthusiastic about the recommendations found in Stopping the Race to the Bottom.  Some require decision making and resolve on the part of a worker saving for retirement.  Admittedly, not all of the recommendations may be within reach of everyone attempting to save for retirement.  But many participants can implement at least some of the suggested steps, rather than relying on regulators to deliver a secure retirement.     

The first suggestion was to retire at the Social Security full retirement age, which for many is age 67, rather than claiming a reduced Social Security benefit when first eligible at 62.  Health problems may prevent some from doing this.  But those able to wait to retire can put away a portion of full-employment earnings for four or five more years, and will also have a higher monthly Social Security check when these benefits begin.

Second, starting to save specifically for retirement at an earlier age, and not depleting those accumulations for other purposes, will take greater advantage of the power of compounding and the time value of money.  Increasing one’s deferral rate is similarly advised.  Both of these suggestions may be met with laments of “I have other important priorities” or “I won’t have enough disposable income.”  For some it may be true.  For others such objections favor short-term gratification, and are an excuse for ignoring retirement’s inevitability because it seems far away. 

Increasing the rate of return on investments may seem an unlikely thing to propose.  How can a retirement saver do that?  He or she probably can’t do so on a short-term, basis.  But a retirement saver may never gain control over investment performance if they don’t educate themselves in investing principles, and – being so equipped – begin to make sound investment decisions.  This is where investment fees should be considered, but they must be judiciously weighed against investment growth potential.  Sometimes the latter is more important than the former.  And this is where the importance of working with a good investment advisor proves itself.

One factor that is clearly beyond participant control is an increase in employer matching contributions.  This factor was a “wish list” item that Fiduciary Benchmarks included among those factors which – over time – would contribute to greater retirement readiness. 

Having identified these factors that could boost retirement saving accumulations, Fiduciary Benchmarks ranked them top to bottom according to what it believes is their potential to influence assets at retirement.  An assumption was made that each measure could be improved by 20%.  For example, increase deferrals by 20%, lower fees by 20%, and so on.  Based on these assumptions, Fiduciary Benchmarks ranked the factors in importance as follows: 

    

    1.    Retire later

    2.   Begin contributing sooner 

    3.  Increase investment rate-of-return

    4.   Increase rate of deferrals

    5.   Increase employer matching contributions

    6.   Decrease investment fees

Like any proposal to enhance retirement readiness, the ideas offered in Stopping the Race to the Bottom are not a magic bullet.  Variables can differ greatly from participant to participant and plan to plan.  Conditions change over time, and with stages of life.  But the big take-away here is that most of us have choices we can make to enhance that readiness.  No regulatory action by itself is going to make it happen.

Will Fiduciary Rule Survive Rising Tide of Lawsuits?

The first week of June saw the filing of two lawsuits challenging the Department of Labor’s final fiduciary rule and its accompanying exemptions.  Those in a position to know were confident that it was only a matter of time before additional lawsuits were filed, and they were right.  At the time of drafting this blog, the number of suits had increased to five.  Just how many will ultimately be filed is still an open question.  The common aim of these legal actions is an injunction to prevent the collective guidance from being implemented, despite the official June 7th effective date and start of transition period having already been reached.  It is the hope of some opponents that an injunction could buy time, and that a new administration in the White House might choose to nullify the guidance.

Regardless of the probability of success of these legal challenges, it seems this result was inevitable, if for no other reason than that this guidance has been accompanied by more controversy than the industry has seen in a very long time. 

The plaintiffs in the first lawsuit filed included a group of chambers of commerce and financial services industry groups, filing in a jurisdiction – the U.S. District Court for the Northern District of Texas – that is not particularly cozy with Washington, D.C., interests.  Whether this venue – a venue also chosen for at least one of the subsequent lawsuits – will translate to an injunction remains to be seen.  Even if this happens, it is certain that the DOL would file an appeal in an attempt to vacate the injunction.  Some speculate that the legal process could ultimately lead to the U.S. Supreme Court. 

The plaintiffs’ arguments for an injunction are numerous, and while similar in nature,  are not completely uniform from one lawsuit to another.  Collectively, they include – among other charges – DOL infringing on the authority of other federal and state agencies, doing financial harm to investors, violating the Federal Arbitration Act, violating the First Amendments freedom of speech, exposing financial advisors and their employers to litigation risk, and issuing a final rule with new conditions that allowed no opportunity for public review and comment. 

This last accusation is one that is thought to have a greater chance of swaying a court in favor of the plaintiffs.  There were, in fact, some important new provisions in the final rule that were not open to comment, if for no better reason than that no one knew of them before April’s release.  One of these was a sweeping definition of the “management” of securities.  Another was the loss of the prohibited transaction exemption for Indexed annuities.

 Another charge that might have some possibility of “sticking” is that DOL, despite their claims to the contrary, does not appear to have coordinated in a serious way with the Securities and Exchange Commission (SEC), an agency empowered by the Dodd-Frank Wall Street Reform Act to undertake such a regulations project as this.  DOL has released e-mails as evidence of some communication with SEC, but many feel these do not come close to the level of cooperation or coordination hoped for and expected.

More than one of the lawsuits charged that DOL was “arbitrary and capricious” in formulating its final regulation.  This may have merit from the standpoint that DOL could reject at will any of suggestions in the more than 3,500 comments it received on the regulations.  But the long history of these regulations – dating back to 2010 – and the multiple comment periods and public hearings, suggest a deliberate process rather than caprice.

To obtain an injunction, plaintiffs must generally demonstrate certain things.  For instance, convincing a court that the plaintiff’s case has merit and could potentially be won at trial.  Or, that failure to issue the injunction will result in injury to another party, such as retirement investors.  These may not be so easy to prove to a court’s satisfaction.

There is a history of federal agencies being given the benefit of the doubt in interpreting statutes and issuing regulations.  We have, however, seen cases in which the courts have overruled federal regulatory agencies, such as a U.S. Tax Court ruling that overrode a 30-year IRS interpretation of how many IRA rollovers a taxpayer is entitled to.  But the courts are inclined to defer to the interpretive judgment of federal agencies unless there is a compelling reason to do otherwise. 

Perhaps this is one of those compelling situations.

Legal actions like these motions for injunction end in a formal request for remedies.  Perhaps surprising in our generally secular society, the official name for this request for remedy is called a “prayer for relief.”  Perhaps that’s fitting, since both supporters and opponents are hoping for a little divine intervention for their side.  Whether, or how, that happens will ultimately be up to the courts.

Let’s Hope the Regulation is Worth It

I’m sure that “the regulation” needs little, if any, further definition. Just as “the drive” in Super Bowl annals will always be associated with John Elway and the Denver Broncos, “the regulation” is a good candidate to forever be associated with the Department of Labor and its fiduciary definition package of final regulations and exemptions.  This guidance has been that big.

Big, of course, can mean a couple of things.  In terms of length in its Federal Register-published version – or any version, for that matter – the guidance is certainly big.  It fills more printed pages than any other in my 31 years in the retirement industry.  In terms of its potential impact on the way advisors do business with retirement investors, it is certainly big.  While notably improved over the proposed regulations, the final regulations are likely to be just as demanding in terms of the analysis required to comprehend what it all means, and configure operations and administration in order to comply. 

These DOL regulations contain a Regulatory Impact Analysis that attempts to quantify in dollars-and-cents terms the effort – translated into cost – that will be required to comply.  Notably, the costs being accounted for – whether or not they are reasonably accurate – measure chiefly those costs incurred by individuals and organizations involved in the advising relationship.  The brokerage, the mutual fund company, insurance company, street corner bank or credit union, and their employees or affiliates, are theoretically taken into account in this assessment of effort and cost.

One expense we can find no evidence of being taken into account by DOL is the effort being expended by organizations that consult with, and counsel, financial organizations and advisors who must comply with the new rules.  Benefits consulting firms, including law firms whose practice specializes in retirement benefits, are included in this group. 

DOL might argue that their final regulations and exemptions are a boon to such businesses, and a revenue stream for the analysis and guidance that must be given to their clients.  If only that were true.  Certainly there are firms that work strictly on a billable-hours basis, and for them the changes may trickle down to a better bottom line.  But that is far from universally true.   My firm is a typical for-instance.  We serve qualified retirement plan recordkeeping clients, IRA, HSA and ESA custodians, trustees and issuers, and have many partners and clients that use a wide variety of our services and products that are tied to tax-favored savings.

Almost without exception, our service agreements include interpreting and sharing findings related to our clients’ compliance responsibilities.  Whether we inform them in web site postings, in articles written for industry media, create special webinars, or assist in strategizing changes to product offerings, we are “at their service.”  We don’t shrink from such responsibilities; such relationships are a privilege.  But such relationships do not yield windfalls, as some might believe.

Even a very superficial tallying of the “man hours” that have gone into analyzing this fiduciary guidance reveals that it has been a huge expenditure of time and talent for our staff to understand and share their meaning and impact.  We take pride in our ability to dissect and interpret, and to be an important compliance resource to our clients.  But when all is said and done, the cost of adapting to these regulations will be far greater than four pages of the April 8, 2016, Federal Register suggest.  We truly hope the benefits delivered to retirement investors will prove to be worth it.

Final Fiduciary Regs Pack Less Than Hurricane-Force Punch

I’ve never directly experienced a hurricane.  But on Tuesday April 5^th, the day before the Department of Labor (DOL) officially issued its final fiduciary regulations, I found myself imagining what it would be like to stand on a coastal beach and watch an approaching vortex of hurricane-force wind and surf about to make landfall; right where I stood.  Sometimes a fertile imagination can be too much of a good thing.

Fortunately, the final rule and accompanying prohibited transaction exemptions issued by DOL appear to be less disruptive and destructive than many thought they would be, compared to the 2015 proposed rule and exemptions.  Whether this came about through inherent reasonableness within the DOL (did I really say that?), or out of fear of lawsuit or possible congressional action, is unclear, and matters little.  DOL did move the “burden” needle considerably.  Some have gone so far as to say that DOL “caved” to the pressure of opponents, and modified their guidance to the point that it lacks sufficient teeth.  I think that’s an overstatement.  But the fact that both proponents and opponents of the guidance have quibbles with the final product may be an indication that DOL found a palatable – if not applause-worthy – middle ground. DOL appears to have listened to the many written comments and the public testimony given between the April 2015 release of the proposed rule and the close of the final comment period last September.  I’ll share some examples, most of them positive.

Apart from actual content, many worried about having adequate time to adapt to the guidance after it was issued as final.  As the saying goes: “timing is everything.”  Based on the 2015 proposed regulations, many expected that compliance would be required within eight months of issuance.  Happily, that is not the case.  Although EBSA has made the guidance technically “effective” 60 days after publishing in the Federal Register, or June 8, 2016, there is a much longer period before having to actually operate within the confines of the final rule and accompanying exemptions.  As of April 10, 2017, investment firms and advisors will be governed by the conduct and disclosure rules.  A transition period from that date to January 1, 2018, will apply to a central pillar of the guidance, the best interest contract, or BIC.

The BIC creates a contractual agreement between advisors and their firms and the recipients of investment guidance.  Without going into its fine points here, it is an agreement that contractually places the interests of the investor above those of the compensated advisor, chiefly when advisor compensation may vary based on investments chosen.  A signed contract was intended to enforce placing the investor’s interests first.  Under the proposed rule this applied to ERISA plans and to IRAs and non-ERISA plans, as well.  In any situation where compensation might vary depending on investments chosen, or in distribution, rollover or transfer advising situations, the purpose of a signed contract was to enforce impartiality and fiduciary behavior.  Happily, ERISA plans were excluded under the final guidance from the need for a signed contract, DOL recognizing that ERISA already provides statutory remedies for fiduciary misbehavior.  IRAs and non-ERISA plans do not have this legal recourse, so the signed contract approach of BIC was intended to provide just such an enforceable remedy.  But the principles of the BIC, including the disclosure of potential conflicts, and procedures to safeguard against investor harm, apply in all these cases.

There are several additional changes to BIC that will simplify compliance for those firms that will use it and must meet its requirements.  Essentially any investment can be offered if the principles of BIC are met, rather than the limited investment types identified in the proposed rule.  In those cases where a signed BIC document must be executed, such as in an IRA rollover situation, contract execution can be part of an account opening process, rather than before the very first syllable of an advising communication! Existing advisory clients for whom a BIC arrangement should be in place can be handled on a negative-consent basis, without the need for a new “please sign this” interaction. Also, the need for initial one, five and 10-year projections, and annual disclosures, were removed as BIC requirements, significantly reducing the administrative and record-retention burden of the BIC as initially proposed.

Another favorable step back from the proposed rule concerns advising situations where the recipient can be expected to have enough investing expertise to recognize the difference between a sales pitch and impartial, “best interest” advising.  In the proposed rule it was termed a “carve-out,” an activity that would not be considered investment advice.  If an advisor was making investment recommendations to an ERISA plan covering 100 or more eligible participants, or a plan with $100 million or more in assets, it would be presumed that the plan representative receiving the recommendations would take them at face value, as an informed fiduciary would.  Under the final rule the 100 participant element has been discarded, and the asset threshold reduced to $50 million, allowing this exclusion to apply to many more plans. 

Great concern with the proposed rule stemmed from the stance on investment education and educational materials.  While the proposal recognized the value and non-advice nature of information on general investment and asset allocation principles, it had prohibited the mention of actual investments available in a retirement plan.  The final rule reverses this and allows an asset allocation model to include actual plan investments, but these must be official designated investment alternatives (DIAs) within the plan.  Unfortunately, there may be other investments in a plan that would be advantageous for a participant or beneficiary, but these cannot be modeled.  Worse, asset allocation modeling for an IRA investor may not include actual investments, on the grounds that there is no independent fiduciary to review and select investment choices that could or should be included in such modeling.  This is a genuine missed opportunity, and a potential handicap for IRA investors

It is worthy of mention that Health Savings Accounts (HSAs) and Coverdell Education Savings Accounts (ESAs) are covered by this guidance to the same extent that IRAs are.  There has been little mention of this in either the media or in the guidance itself.  The statutory tracing rules take us there, and advisors should be aware of this, inasmuch as some investors who are maxing-out in other savings vehicles are also saving in HSAs, with little intention of spending down the accounts in the near-term.  These investors are availing themselves of more sophisticated investments when their balances warrant it. 

More could be said about specific provisions of the final fiduciary rule and its associated exemptions.  But the point to be made here is that proposed guidance that appeared potentially unworkable, may – when all is said and done – have been transformed into a final fiduciary framework the industry can possibly live with.  More to come on this industry changing topic. 

IRS “Future State” Could be Sad State of Affairs

“Nothing is more certain than death and taxes.”  Certainly you’ve heard that expression.  These days there is a great deal of uncertainty as to the future of taxpayer relationships with the IRS.  National Taxpayer Advocate Nina Olson recently delivered her Annual Report to Congress.  In her report she refers to an IRS vision for its future role vis-à-vis U.S. taxpayers, which has become known as the Future State plan. 

Unfortunately, some of her conclusions align with our observations that suggest a more remote and less approachable – rather than a kinder, gentler – IRS.  Olson calls out proposed increases in IRS user fees, and the agency’s plans to reduce person-to-person contact and refer some common tax law inquiries to outside, paid professionals.  She sees this as likely to segregate taxpayers into haves and have-nots, those who can afford to pay for tax compliance assistance, and those who may find it beyond their means.  Olson refers to it as a “pay-to-play” policy, and uses as just one example the fee charged by the IRS for a taxpayer who needs to satisfy a tax obligation on an installment basis.  Not only is there a fee, but the IRS has proposed to make this option even more expensive.

There are other fees that provide dramatic examples of disadvantaging less affluent taxpayers.  For 2016 the IRS is eliminating its tiered fee structure for requesting relief – via private letter ruling – from the 60-day limit for completing an IRA or employer plan indirect rollover.  A number of circumstances beyond a taxpayer’s control – such as financial organization error, or ill health – can be, and often are, grounds for needing an extension of time to complete the rollover.  Some can be considered automatic, but others require IRS approval.

Last year a taxpayer with a rollover amount less than $50,000 could request such a ruling for $500.  This year it will cost $10,000; yes, that’s four zeros!  Those who can’t afford to obtain such IRS ruling relief could suffer serious tax consequences, in addition to diminishing their retirement nest egg, the accumulation of which is ostensibly an elevated public policy goal.  In its guidance outlining conditions under which such a rollover extension can be granted, the IRS cites as a guiding principle the concern that to do otherwise might be “against equity and good conscience.”  Hopefully, few of us will ever be at the mercy of the conscience that came up with this fee increase!

Lest I be accused of selectively citing only data critical of the IRS, the agency has reduced several of its fees for 2016, including those for retirement plans to correct certain failures through its Voluntary Correction Program, or VCP.  For those unfamiliar, under VCP a retirement plan sponsoring employer pays a fee, essentially owns up to the failures, and proposes to the IRS a remedy or remedies for its transgressions.  In this way the IRS both gathers fee revenue from participating employers, and in theory promotes greater plan compliance; all without expending time and expense in identifying and auditing those plans.  In virtually every case these fees decreased for 2016.  This, of course, could be interpreted as a carrot to promote even greater participation, and perhaps greater fee revenue overall.

One root of the problem seems to lie in the politics and funding war that is being waged between the IRS and Congress.  Apart from a long-term, deeply-rooted dislike some lawmakers have for the agency, there recently has been serious concern over IRS misuse of the tax-exempt organization rules to favor one end of the political spectrum over the other.  This unfavorable climate has led recent Congresses to punish the IRS with funding cuts.  In inflation-adjusted terms, the IRS has lost almost 20 percent of its budget since 2010.  This has led the agency to look for ways not only to cut expenses, but to raise revenues – apparently through raising user fees – on its own.

Not surprisingly, service levels have fallen, as well.  Although more than 80 percent of individual income tax returns are now filed electronically, compared to less than 55 percent a decade ago, a very complex tax code has led to increases – not decreases – in taxpayer requests for help on IRS Customer Service phone lines.  Such calls have increased 59 percent over this 10-year period.  And from 2014 to 2015 alone, calls to IRS Customer Service lines increased 15 percent.  Sadly, the number of callers who actually got through for help declined from 64 percent to 38 percent from 2014 to 2015.  The average time of answering, for those who got one, increased from 19 minutes to 30 minutes.  Hardly a service rate that would keep a private sector company in business for long.

Returning for a moment to the issue of increased fees, the cost for retirement plan document drafters to obtain IRS approval is proposed to go up steeply.  This includes the approval of a drafter’s basic plan document and adoption agreements.  Without resorting to a tedious breakdown, one major industry provider’s total fees for document approvals under the current Pension Protection Act restatement cost roughly $50,000, but would have cost in the neighborhood of $270,000 under the IRS’s 2016 fee schedule.  Under what authority is the IRS permitted to raise fees so egregiously?

Then there is the IRS’s unilateral decision to gut the determination letter program, basically delivering it to the industry as a fait accompli, rather than allowing input regarding its potential consequences for plan sponsors. 

Some might call this “piling on” an already beleaguered agency.  Others might say it is compelling evidence that the path we are on is not one that enhances, or even maintains, a healthy relationship between taxpayers and the agency with which they must regularly deal.  Congress and the IRS must come to an understanding that both provides adequate funding, and defines the relationship the IRS must maintain with taxpayers, both individual and business. 

Ends Seem to Justify Means for Partisan DOL

For starters, we can dispense with the notion that federal agencies are always impartial and unfailingly neutral.   We know better.  We know that the heads of federal agencies often dance to the tune played by the administration in power at the time.  To the degree they do this, they are partisan, something that in a perfect world these agencies would not be.  Of course, this phenomenon is not new.  It has been this way in previous administrations, too. 

Some will argue that it is a matter of degree, and contend that there has been more partisan teamwork during the present administration than has been the norm.  I’m not a historian, so I’ll leave that judgment to those who are.  I do believe, however, that in the process of drafting and presenting proposed regulations on conflicted advice in the retirement plan space, the Department of Labor (DOL) and Obama administration are setting a high partisanship bar for future bureaucrats to shoot for. 

The latest after-shock in the seismic upheaval these regulations represent for the industry is a report by the Senate Committee on Homeland Security and Government Affairs, chaired by Sen. Ron Johnson (R-Wisc).  Though the connection of these regulations to “homeland security” may seem tenuous, the original purpose of the agency – as the “government affairs” element in the title suggests – has historically been to oversee the efficiency, economy, and effectiveness of agencies and departments of the federal government; in particular, relationships between federal agencies in the regulatory process.  This side of its responsibilities comes a lot closer to explaining the objections found in the Committee’s report.

The report was published on February 24, 2016, several weeks after legislation was introduced in the Senate to block these regulations.  The regulations are currently in the hands of the federal Office of Management and Budget (OMB), awaiting clearance to be released as “final.”

Contention over these regulations, which would establish fiduciary standards and rewrite rules for interactions between advisers and brokers and their retirement saver clients, is nothing new. The process of proposing, collecting comments and (we hope) revising the regulations for presentation as final has been as fraught with disagreement and bitterness as any in our collective industry memory. What is new are some of the revelations in Sen. Johnson’s report, which shine light on behind-the-scenes procedures of DOL’s Employee Benefits Security Administration (EBSA), the sub-agency that owns – and would enforce – the conflicted advice regulations.

A second comment on partisanship could be made here.  The Committee chaired by Sen. Johnson is controlled by his party, the Republicans.  The report released last week is the “majority report,” which means it was not presented as the unanimous conclusions of Republicans and Democrats on this committee.  It should be said, however, that substantial criticism of these regulations has also come from the Democratic side of the aisle in both Senate and House.  How these Democrats would vote if it came down to an effort to override a veto of regulations-killing legislation is unclear.  But there is easily more bipartisan opposition to these proposed regulations than there is bipartisan support.

In fairness to EBSA and the Obama administration, this Committee report does some dot-connecting and conjecturing that could be questioned.  For example, the fact that EBSA has not demonstrated a willingness to accept some of the suggestions offered by other federal agencies, and by public and private critics, may not be convincing grounds for denunciation.  None of us takes every suggestion given to us, in either our personal or our professional lives.

But some of the report’s findings are very troubling, findings based on e-mails and other communications which – in many cases – were obtained without DOL cooperation.  In fact, in some instances these communications were obtained over opposition – even obstruction – by the DOL.    

One of the key concerns of lawmakers and the retirement industry was whether the DOL had effectively communicated with the Securities and Exchange Commission (SEC) as the conflicted advice regulations were being drafted.  This should have been important because a major share of the investments in IRAs and retirement plans are securities, and because the compensation formulas associated with securities investing have significant variability, and – frankly – the most potential for abuse.  Any attempt to regulate the process of securities investing should have closely involved the agency with the greatest securities expertise.

The DOL not only refused to provide copies of what might have been its key communications with the SEC, but evidence obtained by the Committee from the SEC paints a picture of the DOL attempting to influence SEC not to fully cooperate with the DOL; not to provide these requested communication records.  SEC staff had also pointed out numerous flaws in the regulations.  The upshot is that the DOL’s claim to have actively and substantively worked hand-in-hand with the SEC in creating these regulations turns out to be a fiction.

Another key concern has been the actual origin of the regulatory initiative.  Did it originate within the DOL, based on credible evidence that retirement investors were being harmed?  Or, did the impetus come from the White House, based on a belief that investor abuse is inevitable considering current structures for compensating advisors and brokers who give saving and investment advice?

The report highlights substantial evidence that administration staff were involved in ratcheting-up the perception that the conflicted advice regulations were needed.  A White House memo written months before DOL issued its proposed regulations, and cited in the Committee report, had argued that “aggressive regulatory action [is] necessary to remedy inadequate consumer protections on investment advice.”  As a further indication of who was likely in the driver’s seat, an e-mail from a dutiful DOL policy advisor to a White House senior political advisor declared that “we need to determine whether the available literature … and any other data we have not identified, can be woven together to demonstrate that there is a market failure, and to monetize the potential benefits of fixing it.” 

If that doesn’t sound like a solution in search of a problem, I’m not sure what would.  There are other examples in this Committee’s report on these proposed regulations that would raise still more hackles on our collective necks.  But, in the interest of not raising readers’ blood pressures unduly, I will leave it at that.