TRI Pension Services/ What's New/Current Developments

The following list tracks important guidance that has been released since January 1, 2010. These items are summarized in detail, with appropriate commentary, in our quarterly newsletter, eRISA Update. For ordering information, Click here and follow the instructions to print out an order form.

Cross-references to sections of The ERISA Outline Book that are affected by significant current developments are available,organized by chapter. For ordering information for The ERISA Outline Book click here.

• Click here for current developments issued in 2004
• Click here for current developments issued in 2005
• Click here for current developments issued in 2006
• Click here for current developments issued in 2007
• Click here for current developments issued in 2008
• Click here for current developments issued in 2009

Legislative Developments

• Congress enacts funding relief for defined benefit plans for 2008-2011 plan years [Citation: P.L. 111-192, Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010 (H.R. 3962) (enacted on June 25, 2010)]

Treasury Regulations

• Proposed revisions to FBAR regulations to provide clarification of filing requirements; proposed revisions to FBAR instructions [Citation: Prop. FinCEN Reg. §103.24, 75 F.R. 8844 (February 26, 2010) (issued by the Financial Crimes Enforcement Network (FinCEN), a bureau of the Treasury Department)]
• Final regulations issued under IRC §401(a)(35), effective for post-2010 plan years [Citation: Treas. Reg. §1.401(a)(35)-1, 75 F.R. 27927 (May 19, 2010)]

IRS Guidance

• Annual update of user fee procedure for 2010 [Citation: Rev. Proc. 2010-8, 2010-1 I.R.B. (January 4, 2010)]
• Annual update of user fee procedure for 2010 [Citation: Rev. Proc. 2010-8, 2010-1 I.R.B. (January 4, 2010)]
• Procedures for curing certain document failures in a nonqualified deferred compensation plan that is subject to IRC §409A [Citation: Notice 2010-6, 2010-3 I.R.B. (January 15, 2010)]
• Changes to funding method relating to change in valuation software or change in the plan's enrolled actuary [Citation: Announcement 2010-3, 2010-4 I.R.B. (January 25, 2010)]
• IRS provides guidance on HEART Act issues affecting retirement plans, including differental wage payments, survivor rights with respect to deceased military servicemembers, deemed severance from employment, qualified reservist distributions, and optional crediting of make-up benefits [Citation: Notice 2010-15, I.R.B. 2010-6 (February 4, 2010)]
• Additional reporting extension for certain persons to file foreign bank account reports (FBARs); further clarification of "commingled funds" definition; reporting relief for nondomestic persons [Citation: Notice 2010-23, 2010-11 I.R.B. (March 12, 2010), Announcement 2010-16, 2010-11 I.R.B. (March 12, 2010)]
• 2-year restatement and determination letter application window opens for EGTRRA remedial amendment cycle for pre-approved defined benefit plans [Citation: Announcement 2010-20, 2010-15 I.R.B. (April 12, 2010)]
• Two-year window for defined contribution pre-approved plans extended to July 31, 2010, for certain disaster areas [Citation: Notice 2010-48, 2010-27 I.R.B. (July 6, 2010)]

IRS Private Letter Rulings

• Employer contributions to restore losses incurred in Madoff-like scam were treated as restorative payments under Rev. Rul. 2002-45 [Citation: PLR 201007077 (February 24, 2010)]
• Minimum distributions from IRA to Canadian resident qualify as pension payments subject to 15% tax rate under U.S.-Canada tax treaty [Citation: PLR 201009012 (March 10, 2010)]

DOL regulations

• Proposed regulations prescribe requirements for statutory exemption under ERISA §408(b)(14) and IRC §4975(d)(17) with respect to investment advice rendered by a fiduciary adviser, replacing withdrawn regulations issued by the prior Administration [Citation: Prop. DOL Reg. §§2550.408g-1 and 2550.408g-2, 75 F.R. 9360 (March 2, 2010)]
• Final regulations implement PPA 2006 directive to clarify status of QDROs without regard to timing or that a prior QDRO already exists [Citation: DOL Reg. §2530.206, 75 F.R. 32846 (June 12, 2010)]
• Interim final regulations issued on fee disclosure requirements for certain service providers. [Citation: DOL Reg. §2550.408b-2, 75 F.R. 41600 (July 16, 2010)]

DOL formal guidance (other than regulations)

• No entries

PBGC formal guidance (other than regulations)

• "Box 5" relief provided to certain plans that elected to use alternative premium funding target election [Citation: Technical Update 10-2 (June 16, 2010)]

Prohibited Transaction Exemptions

• Proposed amendments to PTE 96-23 would modify definition of an in-house asset manager (INHAM) and clarify certain aspects of PTE 96-23 [Citation: Proposed amendments to PTE 96-23, 75 F.R. 33642 (June 14, 2010)]
• Amendments to class exemption for release of claims and extensions of credit in connection with litigation to expand the transactions covered by the exemption [Citation: Amendments to PTE 2003-39, 75 F.R. 33830 (June 15, 2010)]

EBSA Advisory Opinions, Field Assistance Bulletins and other informal guidance

• DOL clarifies reporting relief with respect to certain individually-owned contracts or custodial accounts held by section 403(b) plans; provides additional guidance on "safe harbor" exemption under DOL Reg. §2510.3-2(f) [Citation: Field Assistance Bulletin (FAB) 2010-01, available at www.dol.gov/ebsa]
• DOL posts additional FAQs at website regarding EFAST2 (mandatory electronic filing system), including new FAQ-33a, which allows third party service providers to sign on behalf of clients under EFAST2 if certain requirements are satisfied [Citation: http://www.dol.gov/ebsa/faqs/faq-EFAST2.html]

Court Cases

• Plan administrator doesn't lose right to deferential standard of review under Firestone merely because initial determination is ruled to be unreasonable [Citation: Conkright v. Frommert, 130 S.Ct. 1640 (48 EBC 2569) (S.Ct. April 21, 2010)]
• ERISA attorney's fees claimants must show some degree of success on the merits before court may award fees, but need not be a "prevailing party" [Citation: Hardt v. Reliance Standard Life Insurance Co., 130 S.Ct. 2149 (49 EBC 1001) (May 24, 2010)]
• ERISA's anti-retaliation statute does not extend to unsolicited comments by employee regarding plan violations [Citation: Edwards v. A.H. Cornell & Sons, Inc., ___ F.3d ___ (49 EBC 1481) (3rd Cir. June 24, 2010)]
• Participant may be entitled to equitable relief with respect to additional pension benefits improperly reflected on certified benefits calculation statement [Citation: Bloemker v. Laborers' Local 265 Pension Fund, 605 F.3d 436 (49 EBC 1175) (6th Cir. May 19, 2010)]
• After determination that attorney's fee claimant has achieved "some degree of success on the merits" a district court may evaluate the traditional five factors under the Hummell case to determine if a fee award is warranted [Citation: Simonia v. Glendale Nissan/Infiniti Disability Plan, ___ F.3d ___ (2010 WL 2521036) (9th Cir. June 24, 2010)]
• Plan amendment that would have affected surviving spouse's right to benefits under ERISA plan invalidated because plan's amendment procedures not followed [Citation: Overby v. NALC, 595 F.3d 1290 (48 EBC 2255) (D.C. Cir., February 26, 2010)]
• Tax Court rules that reference to "entire cash value" of insurance contracts in pre-2005 regulatory rules regarding taxation of plan distributions should be read to mean cash value determined without regard to surrender charges [Citation: Matthies v. Commissioner, 134 T.C. No. 6 (2010)]
• Inherited IRA is not eligible for federal bankruptcy exemption under Bankruptcy Code §522(d)(12) [Citation: In re Chilton, 2010-1 U.S.T.C. ¶50,275 (Bankrtcy Ct. E.D. Tex. March 5, 2010)]

Miscellaneous Guidance

• No entries

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