Pension Plan De-Risking and Lump-Sum Windows
As their pension plan liabilities have mounted in recent years, cash-strapped defined benefit pension plan sponsors have increasingly turned to de-risking strategies to limit their exposure. Sponsors have used the following strategies:
When implementing lump-sum window programs, many companies have looked to the de-risking methods used by General Motors and Ford Motor Company for guidance, believing that the IRS blessed those approaches in “private letter rulings” (PLR 201228051 and PLR 201228045) issued in July, 2012. While an IRS private letter ruling can’t be relied upon by anyone other than the party requesting it, plan sponsors have nevertheless used the rulings as roadmaps for their own de-risking strategies.
In the private letter rulings, the IRS concluded that offering a lump-sum option to participants currently receiving benefits would not violate the RMD regulations (See Treas. Reg. §1.401(a)(9)-1 et. seq.) The RMD rules mandate when qualified retirement plans must begin making distributions to participants, and generally prohibit plans from modifying the timing of distributions once benefits commence. However, in its July 2012 letter rulings, the IRS reasoned that implementing a lump-sum window would fit within a narrow exception permitting plan amendments that result in an increase in benefits.
New Notice Supersedes Prior Guidance
Notice 2015-49 supersedes the approach the IRS approved in the private letter rulings, concluding that offering lump-sum windows to plan participants whose benefits are already in pay status will violate the RMD regulations. This new guidance does not, however, prevent plan sponsors from offering a lump-sum windows to participants whose benefits are not in pay status (e.g., participants who are vested in their benefit, but who have not yet begun receiving distributions). The Notice provides that, in addition to ensuring the taxation of pension distributions is not unduly deferred, the RMD rules also regulate any changes to a participant’s form of benefit that would accelerate ongoing annuity payments. Implementing a lump-sum window program as a de-risking strategy would run afoul of the latter requirement.
To implement its change in policy, the IRS will revise the RMD regulations to limit the exception for plan amendments providing increased benefits only to amendments that increase the amount of ongoing annuity payments, but that don’t accelerate the timing of those payments.
Effective Date of Change
The new requirements are effective as of July 9, 2015. However, Notice 2015-49 offers some relief to plan sponsors that have already adopted lump-sum window programs providing participants whose benefits are in pay status the option to receive a lump-sum payout. The revised RMD regulations are not expected to apply to plan amendments implementing lump-sum window programs:
Notice 2015-49 makes it clear that, going forward, pension plan sponsors can no longer de-risk their plans by offering lump-sum window programs to participants currently receiving benefit payments. Plan sponsors in the process of implementing a lump-sum window program may, however, be permitted to do so if they meet the requirements described above.
While the IRS’ new guidance removes one approach to de-risking pension plans, it leaves in place other means of de-risking (including offering lump-sum payment options to participants whose benefits are not in pay status). As a result, the guidance is unlikely to slow the use of de-risking strategies by plan sponsors struggling to limit growing pension plan liabilities.
Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues. If you have any questions about this update or would like to discuss the topic further, please contact your Foley attorney or the following:
Belinda S. Morgan
Erik D. Vogt