Last Call: Don’t Forget Your Retirement Plan’s Required Year-End Amendments for 2021

As 2021 winds down, retirement plan sponsors should confirm that their plan documents are amended by December 31, 2021, to comply with certain plan changes:

  • Hardship Distributions. 401(k) plans and 403(b) plans must be amended, as applicable, to comply with the final regulations updating the hardship distribution rules.  For hardship distributions made on or after January 1, 2020, plans must be amended by December 31, 2021, to:  (i) eliminate the suspension of elective deferrals following a hardship distribution; and (ii) require employees requesting hardship distributions to represent that they have insufficient cash or other liquid assets reasonably available to satisfy the need.Additionally, plans that made changes to their hardship distribution provisions that were (i) permitted under the regulations, and/or (ii) took effect on or before January 1, 2020 (such as eliminating the requirement to exhaust all available loans before taking a hardship distribution, or permitting amounts contributed as qualified nonelective contributions (QNECs) or qualified matching contributions (QMACs) and earnings to be made available for hardship distributions), must adopt such changes by December 31, 2021.
  • PBGC Rates. Defined benefit plans that refer to the Pension Benefit Guaranty Corporation (PBGC) immediate rate may need to be amended to reflect that the PBGC stopped publishing monthly rates at the end of 2020.  Such amendment would need to be effective January 1, 2021 (which, for calendar year plans, would require adoption of an amendment by December 31, 2021).
  • Collectively Bargained Cash Balance/Hybrid Defined Benefit Plans. Cash balance/hybrid defined benefit plans maintained pursuant to a collective bargaining agreement ratified on or before November 13, 2015 must be amended by December 31, 2021, to comply with requirements regarding market rate of return and other cash balance/hybrid plan requirements that first applied to such plans generally on or after January 1, 2017.
  • Discretionary Amendments. If a retirement plan implements discretionary changes during the 2021 plan year, retirement plan sponsors must adopt an amendment to that effect by the last day of the 2021 plan year (December 31, 2021, for a calendar year plan).

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PBGC Issues Interim Regulations on Special Financial Assistance for Multiemployer Pension Plans

Multiemployer pension plans are collectively bargained defined-benefit employee benefit plans that are funded by several unrelated employers for the benefit of unionized employees. In recent years, the crisis of significantly underfunded multiemployer plans has continued to grow. In response, Congress enacted the American Rescue Plan Act of 2021 (ARPA), which was signed into law on March 11, 2021. ARPA amended ERISA to establish a new program within the Pension Benefit Guarantee Corporation (PBGC) to offer “special financial assistance” (SFA) to multiemployer plans in danger of becoming insolvent; in contrast to other assistance offered by the PBGC, plans are not required to repay the SFA.

ARPA directed the PBGC to issue regulations or other guidance to prescribe the application requirements for SFA payments and for how funds are to be invested and to impose conditions on plans that receive SFA payments. On July 9, 2021, the PBGC issued this guidance in the form of interim regulations.

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PBGC Publishes Final Rule Allowing Simplified Withdrawal Liability Calculations Applicable to Benefit Reductions, Benefit Suspensions and Contributions

On Friday January 8, the Pension Benefit Guaranty Corporation (PBGC) published a final rule that provides multiemployer pension plans with additional methods to help calculate employer withdrawal liability. The rule includes relatively simplified approaches to calculating withdrawal liability that multiemployer plans may choose to use. The rule comes into effect on Friday, January 7, 2022, 30 days after its publication in the Federal Register.  The final rule reflects changes based on several comments made to the proposed rule that was published on February 6, 2019.

The Employee Retirement Income Security Act (ERISA) charges the PBGC with oversight of multiemployer pension plans, including employer withdrawal liability. Multiemployer plans and their actuaries do not have free reign to calculate withdrawal liability as they see fit. Rather, they must follow the provisions and approved methods set forth in ERISA and as published by the PBGC. The new rule stems from amendments to the ERISA funding rules implemented by Congress in 2006 under the Pension Protection Act (“PPA”) and in 2014 under the Multiemployer Pension Reform Act (“MPRA”). The funding rules permitted financially distressed multiemployer plans to reduce adjustable benefits, suspend a portion of nonforfeitable benefits, and impose contribution increases and surcharges for underfunded plans. These funding rules clarified whether plans could take these changes into account when determining withdrawal liability and instructed the PBGC to draft simplified methods to do so.

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IRS and PBGC Provide Welcome Clarification on Contribution Deadline for Defined Benefit Pension Plans

On November 16, 2020, the Internal Revenue Service (IRS) issued Notice 2020-82 (the Notice), to further extend the deadline for required minimum contributions for single-employer defined benefit pension plans that would otherwise be due during the 2020 calendar year, from January 1, 2021, to January 4, 2021. On the same day, the PBGC issued complementary guidance, in Technical Update 20-2 (the PBGC Update), to reflect the January 4, 2021, deadline established by the IRS in the Notice when calculating variable-rate premiums.

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) previously established a January 1, 2021, deadline for certain required minimum contributions that would otherwise be due during the 2020 calendar year. This pension funding holiday applies for contributions to single-employer defined benefit pension plans required under Section 430(j) of the Internal Revenue Code (the Code). Under Code Section 430(j), single-employer defined benefit pension plan sponsors are required to make certain minimum contributions that are designed to keep the plan sufficiently funded. For a given contribution to apply for a plan year, generally the contribution must be made no later than 8-1/2 months after the plan year ends. However, when a plan has a funding shortfall for the prior plan year, the plan sponsor is required to pay four quarterly installments toward the required minimum contribution for the plan year (due on April 15, July 15, and October 15 of the plan year, and January 15 of the following year, for a calendar year plan). The CARES Act gave plan sponsors additional time to make these required minimum contributions, by providing a January 1, 2021, due date for amounts otherwise due during 2021.

In the Notice, the IRS recognized the legislative intent to defer a plan sponsor’s payment obligation to calendar year 2021. The IRS acknowledged that this deferment to 2021 would not be possible with a January 1, 2021, deadline, given that January 1, 2021, is a bank holiday, and financial institutions cannot transfer funds on the January 1, 2021, due date. As a result, the Notice extends the deadline to January 4, 2021, the next business day after January 1, 2021. For amounts that are contributed on January 4, 2021, and treated as timely made pursuant to the Notice, the amount of the required minimum contribution that is considered satisfied by the contribution is determined by computing the applicable interest adjustment based on the actual contribution date.

The Notice also extends the deadline for a plan sponsor of a single-employer defined benefit pension plan to make certain elections related to the plan’s prefunding balance. These extended deadlines relate to (a) an election to add contributions made in excess of the minimum required contribution for a plan year to the plan’s refunding balance (i.e., a balance that may be used at the plan sponsor’s election to offset minimum required contributions for a later plan year) and (b) an election to use an existing prefunding balance or funding standard carryover balance to offset a required minimum contribution for a plan year. The deadline for those elections is now also January 4, 2021, for a plan year for which the extended due date for required minimum contributions applies. Note, however, that the Notice does not impact the treatment of certain missed quarterly installment contributions otherwise due on January 1, 2021, pursuant to the CARES Act. Further, the extended deadline (previously January 1, 2021, and now January 4, 2021) does not apply for a multiemployer plan, a money purchase pension plan, a “cooperate and small employer charity” (CSEC) plan, or a fully insured plan as described in Code Section 412(e)(3).

Prior to this Notice, the IRS had issued guidance on the CARES Act funding rules for single-employer defined benefit pension plans in Notice 2020-61. That notice addressed the payment of annual premiums to the Pension Benefit Guaranty Corporation (PBGC) (as well as interest adjustments for minimum required contributions, the actuarial certification of a plan’s adjusted funding target attainment percentage (AFTAP), and Form 5500 reporting for contributions made with respect to the 2019 plan year that were made after the filing deadline for the 2019 plan year).

The PBGC Update referenced above addresses the IRS guidance and its impact on the PBGC premium filings by providing that, for premium filings due on or after March 1, 2020, and before January 1, 2021, the date by which prior-year contributions must be received by the plan to be included in plan assets used to determine the variable-rate premium is extended to January 4, 2021. If such a contribution is made by January 4, 2021, a plan sponsor may amend the premium filing to revise the originally reported asset value and the applicable variable-rate premium. Note that the PBGC relief does not impact the premium due dates, and it does not allow a plan sponsor to include a contribution that has not yet been made in the premium filing.

Contact your Faegre Drinker attorney for more information on the extended deadline for required minimum contributions, the variable-rate premium contribution calculation and deadlines, and other aspects of the CARES Act relief for single-employer defined benefit pension plans.

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