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Cypen & Cypen
March 5, 2020

Stephen H. Cypen, Esq., Editor

The U.S. Census Bureau hosted an event to highlight efforts to ensure all young children are counted in the 2020 Census. Children under five years old are among population groups historically undercounted in the census. The Census Bureau is making a concerted effort to address this issue by creating community partnerships, educational programs, awareness campaigns and operational innovations, with the goal of raising awareness of the importance of counting young children. During a news conference in Cleveland, Ohio, the  Federation of Pediatric Organizations  (FOPO), a 2020 Census partner, announced that March 25, 2020, is designated as Every Child Counts Day -- a day when the pediatric community is encouraged to tell the adults they interact with about counting every child living in their homes in the 2020 Census. We are so happy that partners like the Federation of Pediatric Organizations, Sesame Workshop, United Way and others are so committed to ensuring every child is counted in the census. A decade is essentially a childhood,” said Dr. Steven Dillingham, director of the Census Bureau. “Children today deserve the best possible health, education and community services. They can’t count themselves -- they’re counting on you to count them.” “FOPO’s focus in 2019-2020 is to ensure all kids get counted in the 2020 Census,” said Dr. Judy Aschner, chairperson, Federation of Pediatric Organizations. “Children zero to four are at the greatest risk of being undercounted, and many, many programs that support families, young children and communities depend upon an accurate count. A child undercount is a threat to pediatric research and the health and well-being of children.” An accurate count of all children is critical for families, educators and their communities -- and it’s important to count young children now so they have the resources they need for the next 10 years. The Census Bureau has formed partnerships with national and local organizations across the country in an effort to address the undercount of young children. In early March, the Census Bureau will launch a direct mail campaign reaching millions of households in areas at risk for undercounting children to emphasize the importance of counting everyone in the 2020 Census. “It is vital every person is counted in the Census to ensure our community has the funds necessary to address the needs of the children and families who live in our city, and this is why United Way is committed to partnering to get the word out,” said Augie Napoli, president and CEO of United Way of Greater Cleveland. “One out of every two children in Cleveland now live in the worst poverty in the nation which is why it is essential they have access to the many programs -- from educational and healthcare to food and nutrition -- a fair and accurate census affords.” “What strikes us is the great irony that children who stand to benefit the most from an accurate census count are the ones most likely to go uncounted,” said Tracy Garrett, assistant vice president of Government Affairs, Sesame Workshop. “We’re honored to work with the United States Census Bureau and alongside organizations like the United Way, the Federation of Pediatric Organizations, the American Academy of Pediatrics, the Ad Council, and so many others at local and state levels across the country to reverse that equation and to do all we can together to make sure every child counts.” In 2013, the Census Bureau assembled a task force to study the undercount of young children in the decennial census. In 2014, the Census Bureau released a  report  from the task force that summarized the results of its research and recommended more work to improve our understanding of the possible causes. Since then, the Census Bureau has been reviewing  existing data sources  that might provide insights into the circumstances that lead to young children being missed in censuses or surveys. “Including young children in the 2020 Census is vitally important for them and for their communities because population statistics are used by lawmakers to determine how to spend billions of dollars in funds every year,” said Karen Deaver, who leads Census Bureau efforts to reduce the undercount of young children. “Child-focused programs like nutrition assistance, Head Start and the Children's Health Insurance Program rely on accurate data about where young children live to provide foundational services for children.” There are many reasons why children are undercounted. Since there is no single cause for the undercount of young children, there is no single solution to the problem. However, the Census Bureau is pursuing multiple strategies to ensure the count of young children is as complete as possible, including:

  • Developing partnership materials explaining why young children are undercounted and how to educate households likely to exclude young children.
  • Developing support materials that include messaging on the importance of counting young children.
  • Developing advertising aimed at households with young children.
  • Establishing partnerships with advocacy and community groups who can get the word out about the importance of counting all children in the household.

In addition, the Census Bureau added language to the questionnaire to emphasize including children on their census with specific instructions to include unrelated children, foster children and grandchildren, and has improved census taker training materials to emphasize the importance of including children during interviews with nonresponding households. Everyone has the opportunity to shape the future of children they know. Start by counting every child in the home.

  • Count children in the home where they live and sleep most of the time, even if their parents don’t live there.
  • If a child’s time is divided between two homes, count them where they stay most often. If they evenly divide their time, or you do not know where they stay most often, count them where they are staying on April 1, 2020.
  • If a child moves during March or April 2020, count them at the address where they are living on April 1.
  • Count children living in your home if they don’t have a permanent place to live and are staying with you on April 1, even if they are only staying temporarily.
  • Count newborns at the home where they will live and sleep most of the time, even if they are still in the hospital on April 1.
  • Remind neighbors to count all children living or sleeping in their home most of the time, regardless of who or where their parents are.

The event, which was geared toward young children and their families, featured Sesame Street characters Rosita and The Count; Dr. Seuss’ The Cat in the Hat, who hosted story time; and coloring pages from Molly of Denali. Census Bureau officials and key partners explained why it’s important to participate in the census and about the importance of counting everyone, including all young children, in their households. Event participants were encouraged to spread that message in their communities. The event also highlighted the Census Bureau’s  Statistics in Schools  program that encourages teachers and adults to teach students why it is important to respond to the census. The program provides materials to teachers of all grades, including free activities, storybooks and even a song. The Census Bureau has sent every superintendent and principal across the country a toolkit to help raise awareness about the role the census plays in shaping students’ futures and those of their communities. The U.S. Constitution mandates a census of the population every 10 years. The goal of the 2020 Census is to count everyone who lives in the United States as of April 1, 2020 (Census Day). Census statistics are used to determine the number of seats each state holds in the U.S. House of Representatives and informs how billions of dollars in federal funds will be allocated by state, local and federal lawmakers annually for the next 10 years. Beginning March 12, households will be able to respond online, by phone or by mail. Kristina Barrett, United States Census, Release Number CB20-CN.15, February 22, 2020.
What GAO Found
The Internal Revenue Service's (IRS) Publications 590-A and 590-B serve as a general handbook for millions of taxpayers with individual retirement accounts (IRA). However, the two-part publication provides limited information for IRA owners with unconventional assets surrounding complex tax rules in four compliance areas: (1) barred investments, (2) prohibited transactions, (3) unrelated business income, and (4) fair market value. GAO found other limited information about these topics on IRS's website. With only about 2 percent of IRAs invested in unconventional assets, adding more pages to Publications 590-A and 590-B may not be practical. By assessing options for informing IRA owners investing in unconventional assets, such as directing them to web pages with specialized information and technical regulations, IRS could better help them comply. Noncompliance involving unconventional IRA assets is difficult to detect and time consuming for IRS to pursue. Whereas IRS relies on automated enforcement for IRAs invested in conventional assets held by custodians and trustees, enforcement for IRAs invested in unconventional assets or under IRA owner control requires labor-intensive audits of individual taxpayers. Using newly compiled information, IRS identified about 2 million IRAs that held certain types of hard-to-value assets as of 2016; however, about 20 percent of the forms were missing fair market value amounts for these assets (see fig.). IRS officials said this type of reporting alone may be inadequate for audit selection and identifying potentially abusive IRAs. When IRS lacks sufficient data to detect abusive transactions, IRS can require taxpayers to self-report certain transactions that have been used by other taxpayers to avoid taxes. Additional taxpayer or custodian disclosure of potentially abusive IRA transactions coupled with IRS analysis of reported details may help IRS to select IRA owner tax returns to audit. Fragmented responsibility among IRS divisions creates challenges for examiners who need to share expertise and collaborate on IRA enforcement. The division responsible for tax-exempt entities trains its examiners on how to determine if an employee retirement plan has engaged in business activities subject to taxation. However, examiners in the division that audits complex individual tax returns, including those involving IRAs, do not receive such training. Training for those examiners could help improve collaboration on IRA enforcement.
Why GAO Did This Study
Unconventional IRA investments--such as real estate, certain precious metals, private equity, and virtual currency--can introduce risks to account owners who assume greater responsibility for navigating the complex rules that govern tax-favored retirement savings. IRS enforces tax rules relating to IRAs and can assess additional taxes. GAO was asked to examine the challenges associated with enforcing rules governing IRAs invested in unconventional assets. This report examines (1) the extent to which IRS offers guidance to help taxpayers understand the rules governing unconventional IRA assets; and (2) the challenges IRS faces in enforcing those rules. GAO identified and analyzed IRS information to help taxpayers understand four compliance areas. GAO reviewed IRS analysis of nonmarket IRA assets reported by IRA custodians, and IRS audit procedures and training materials; and interviewed relevant IRS officials to identify enforcement challenges.
What GAO Recommends
GAO is recommending that IRS (1) assess options for updating its IRA publications to provide more information for taxpayers with unconventional assets, (2) evaluate the feasibility of requiring disclosure for high-risk IRA asset types associated with abusive tax schemes, and (3) develop auditor resources (such as training materials or job aids) that explain how IRAs with unconventional assets can generate unrelated business income tax. IRS generally agreed with GAO's recommendations.
For more information, contact: 
James R. McTigue, Jr. at

Charles A. Jeszeck
jeszeckc@gao.gov .

GAO-20-210 , U.S. Government Accountability Office, Published: Jan 27, 2020, Publicly Released: Feb 26, 2020.
The Supreme Court ruled employers can’t shorten the window 401(k) participants have to sue over alleged plan mismanagement by simply posting plan information online or sending disclosures in the mail. In a unanimous ruling, the court said that plan participants don’t necessarily have “actual knowledge” of the alleged violation required under the law to shorten the litigation window to three years if they received information about the alleged violation in disclosures but did not read or can’t recall reading them. Plan participants generally have six years under the Employee Retirement Income Security Act to sue those managing retirement plans for not being prudent with investments. But that window is shortened to three years if the participant had “actual knowledge” of the violation sooner. “Although ERISA does not define the phrase ‘actual knowledge,’ its meaning is plain,” Justice Samuel Alito said in delivering the court’s majority opinion. The dispute before the high court stemmed from a proposed class action former Intel Corp. engineer Christopher Sulyma brought against the company’s retirement committee in 2015. Sulyma alleged the committee over-allocated retirement savings to hedge funds and private equity investments between 2010 and 2012, and failed to properly notify participants. But Intel argued it was too late for Sulyma to sue because all the information he needed to know that the violation had occurred was sent to him prior to 2015, and the district court agreed. The Ninth Circuit ultimately reversed that ruling, leading to this appeal. In the 12-page opinion affirming the Ninth Circuit’s decision, Alito addressed Intel’s claim that siding with Sulyma would allow participants to simply deny they had knowledge of the alleged violation and cut employers off from being able to shorten the litigation window, a benefit ERISA provides to protect them from suits over bygone investment decisions. Even if that were true, the court “can’t say that heeding that the clear meaning of the word ‘actual knowledge’ renders the statute so incoherent that it must disregarded,” Alito said. Jerry Schlichter, founding and managing partner of Schlichter Bogard & Denton, LLP, one of the leading firms that represent plan participants, called the court’s decision a win for plaintiffs. That’s because “the court has held that the statute means what is says: Actual knowledge means actual knowledge of the facts,” he said. “One doesn’t have actual knowledge imputed because she received a mailing. Numerous courts have held this to be the case already, but this Supreme Court decision clarifies that that will be followed by all courts moving forward.” But Alito noted that nothing in the court’s opinion forecloses any of the usual ways that actual knowledge can be proved in litigation. “Plaintiffs who recall reading particular disclosures will of course be bound by oath to say so in their depositions,” he said. “On top of that, actual knowledge can be proved through ‘inference from circumstantial evidence.’” In an email, a spokesman for Intel said the company does not have any comment on the court’s decision. Questions Unanswered Attorneys were closely watching the case for a standard in determining how long employees have to file lawsuits under ERISA. “It does create a uniform rule nationwide that didn’t exist, and I tend to think that’s good no matter what that standard is, but gosh the opinion sure leaves a lot open that will be litigated in the future,” said Jaime Santos, a partner at Goodwin Procter LLP, said. She notes the court’s ruling does not answer questions about what information a plan participant must actually know for the three-year litigation period to be triggered. The court explicitly said in a footnote of the opinion that question was not before the court and one they did not address. The ruling overall, however, was not a surprise for Santos. “Alito’s opinion pretty much stopped at the word ‘actual,’” she said. “You have to actually know something to have actual knowledge of it. It reflects the textualist court we have now.”  Intel Corp. Inv. Policy Comm. v. Sulyma, U.S., No. 18-1116, 2/26/20. (Updated with additional reaction in ninth and 10th paragraphs.) Lydia Wheeler, Fawn Johnson and Andrew Childers, Bloomberg Law, February. 26, 2020.
It would remove the “birth date restriction” that prohibited 2,200 active and retired firefighters born after Jan. 1, 1966 from receiving a 3% annual cost of living increase. Instead, they get half that amount -- an annual increase of 1.5% that is not compounded.
The Chicago Firefighters Union Local 2 is making a renewed push to increase retirement benefits for 2,200 of its members at a heavy cost to taxpayers: $18 million the first year and $30 million every year after that. The bill was introduced by state Rep. Robert Martwick, D-Chicago, a political nemesis of Mayor Lori Lightfoot, before Martwick was appointed to the Illinois Senate to fill the vacancy created by the retirement of state Sen. John Mulroe. It would remove the “birth date restriction” that has prohibited roughly 2,200 active and retired firefighters born after Jan. 1, 1966 from receiving a simple, 3% annual cost of living increase. Instead, they get half that amount -- an annual increase of 1.5% that is not compounded. On the eve of a committee hearing on the bill, Martwick noted that the “birth date restriction” has already been moved five times as a way of masking the true cost to a firefighters pension fund with roughly 25% of assets to meet its future liabilities. “Remember, they have traditionally given that 3% simple COLA [Cost-of-living adjustments] to these firefighters. They’re going to get that. This just writes it into law. It’s really not adding cost. It’s making that cost transparent,” Martwick said. “If we don’t change the provision and we give them the more generous, 3% simple COLA, then payment on the back end will be enormous. There’s no doubt that would make the mathematical calculation of their payment go up. But what it will do is prevent us from kicking the can and making a huge disaster down the road. It’s making the law comply with what the actual practice is.” Rob Tebbens, political director for Local 2, referred to it as a “transparency bill” that would end the city’s longstanding practice of “fooling themselves” by “masking” the true cost of firefighter pensions. “This is potentially an age discrimination issue because you’re basing the benefit off of an individual’s age and not their years of service. Based on their age, they’re gonna get a benefit that is less than a Tier 2 benefit” for employees hired after Jan. 1, 2011, Tebbens said. “By law, that’s something they could possibly take to court and litigate. Doing it legislatively could save the city money in the long run. They wouldn’t have to litigate this issue.” The mayor’s office argued that the bill would add “anywhere from $18 million to $30 million” in added costs to a pension liability imposed on Chicago taxpayers that is already scheduled to rise by $1 billion by 2023. “While we are at the collective bargaining table working on a fair contract that supports our first responders, the administration is opposed to HB 2451 and we have shared our concerns about the serious impact it would have on our city finances with Local 2 as well as the sponsors,” the mayor’s office statement said. “It is also unseemly that this matter is being rushed through the committee process to further the political aspirations of one person running for union president. While we strongly believe that our first responders deserve to be fairly compensated for their service, it has to be in a manner that reflects fiscal prudence.” Tebbens, who is a candidate for president of Local 2, was asked where the city would find that kind of money. “The city has a revenue source with the casino. This is an opportunity for the city -- pun intended -- to throw their cards on the table,” Tebbens said. “They need to throw their cards on the table, show the true liability of this benefit and not mask it with this birthday rule and let the taxpayers know what the true liability is. This is not a benefit enhancement. This is just a reconciling of benefits to the members of my department.” Last year,  Martwick and Lightfoot famously got into a shouting match  at a campaign news conference Lightfoot called to denounce Martwick-sponsored legislation that would change the Cook County assessor post from an elected to an appointed position. Martwick had endorsed County Board President Toni Preckwinkle over Lightfoot in the mayoral race. Martwick also earned the mayor’s ire for championing an elected school board bill that would divide the city into 20 districts. Fran Spielman, Chicago Sun Times, Feb 25, 2020
The Internal Revenue Service issued  proposed regulations  on the business expense deduction for meals and entertainment following changes made by the Tax Cuts and Jobs Act (TCJA). The 2017 TCJA eliminated the deduction for any expenses related to activities generally considered entertainment, amusement or recreation. It also limited the deduction for expenses related to food and beverages provided by employers to their employees. These proposed regulations address the elimination of the deduction for expenditures related to entertainment, amusement or recreation activities and provide guidance to determine whether an activity is considered to be entertainment. The proposed regulations also address the limitation on the deduction of food and beverage expenses. The proposed regulations affect taxpayers who pay or incur expenses for meals or entertainment. These proposed regulations generally follow  Notice 2018-76 , issued on Oct. 15, 2018, which provided transitional guidance on the deductibility of expenses for certain business meals. Taxpayers affected by this change and other interested parties may submit comments on the  proposed regulations . The IRS will hold a public hearing on these proposed regulations on April 7, 2020. IRS Newswire, Issue Number: IR-2020-39, February 24, 2020.
Social Security Commissioner Andrew Saul announced a new final rule today, modernizing an agency disability rule that was introduced in 1978 and has remained unchanged. The new regulation, “Removing the Inability to Communicate in English as an Education Category,” updates a disability rule that was more than 40 years old and did not reflect work in the modern economy. This final rule has been in the works for a number of years and updates an antiquated policy that makes the inability to communicate in English a factor in awarding disability benefits. “It is important that we have an up-to-date disability program,” Commissioner Saul said. “The workforce and work opportunities have changed and outdated regulations need to be revised to reflect today’s world.” A successful disability system must evolve and support the right decision as early in the process as possible. Social Security’s disability rules must continue to reflect current medicine and the evolution of work. Social Security is required to consider education to determine if someone’s medical condition prevents work, but research shows the inability to communicate in English is no longer a good measure of educational attainment or the ability to engage in work. This rule is another important step in the agency’s efforts to modernize its disability programs. In 2015, Social Security’s Inspector General recommended that the agency evaluate the appropriateness of this policy. Social Security owes it to the American public to ensure that its disability programs continue to reflect the realities of the modern workplace. This rule also supports the Administration’s longstanding focus of recognizing that individuals with disabilities can remain in the workforce. The rule will be effective on April 27, 2020. Mark Hinkle, Acting Press Officer, Press Release, Social Security Administration, February 24, 2020.
Connecticut Gov. Ned Lamont is reorganizing the Connecticut Retirement Security Authority by staffing it with a 14-person board and placing it under the jurisdiction of the state comptroller's office. CRSA was formed in January 2017 to create and implement the Connecticut Retirement Security Program, a retirement savings plan for private-sector workers in Connecticut with no access to an employer-based retirement fund. It was formed after then-Gov. Dannel P. Malloy signed the Connecticut Retirement Security Program into law on May 27, 2016. The state's retirement security program is designed to offer "more than half a million Connecticut workers a real opportunity to save for retirement through easy payroll deductions," said a news release from the governor's office. This move is part of a series of budget proposals, including the fiscal year 2021 budget adjustments report, that state the CRSA will evaluate the best and fastest way to implement the program, "including a multistate or regional approach that would enable participating states to provide even better services to its citizens at lower cost." The budget adjustments report added: "The budget supports a new position to provide clerical support and allows the Office of the State Comptroller to assume operational control of the Connecticut Retirement Security Authority so we can move quickly from concept to reality." The CRSA had been run by Executive Director Mary Fay since January 2018. But after the authority ran out of funds, Ms. Fay was laid off in January this year, confirmed Max Reiss, a spokesman for Mr. Lamont's office. Ms. Fay could not be immediately reached for comment. James Comtois, Pensions & Investments, February 11, 2020.
What GAO Found 
Executive retirement plans allow select managers or highly compensated employees to save for retirement by deferring compensation and taxes. As of 2017, more than 400 of the large public companies in the Standard & Poor’s 500 stock market index offered such plans to almost 2,300 of their top executives, totaling about $13 billion in accumulated benefit promises. Top executives at large public companies generally accumulated more plan benefits than top executives at the smaller public companies in the Russell 3000 stock market index. Advantages of these plans include their ability to help executives increase retirement savings and potentially reduce tax liability, but the plans come with risks as well. To receive tax deferral, federal law requires the deferred compensation to remain part of a company’s assets and subject to creditor claims until executives receive distributions (see figure). Department of Treasury officials and industry experts said executive retirement plans can be taxadvantaged and may have revenue effects for the federal government; however, the revenue effects are currently unknown. The Internal Revenue Service (IRS) oversees executive retirement plans for compliance with federal tax laws. For example, IRS must ensure that key executives are taxed on deferred compensation in certain cases where that compensation has been set aside, such as when a company that sponsors a qualified defined benefit retirement plan is in bankruptcy. However, IRS audit instructions lack sufficient information on what data to collect or questions to ask to help its auditors know if companies are complying with this requirement. As a result, IRS cannot ensure that companies are reporting this compensation as part of key executives’ income for taxation. The Department of Labor (DOL) oversees these plans to ensure that only eligible employees participate in them since these plans are excluded from most of the federal substantive protections that cover retirement plans for rank-and-file employees. DOL requires companies to report the number of participants in the plan; however, the one-time single page filing does not collect information on the job title or salary of executives or the percentage of the company’s workforce participating in these plans. Such key information could allow DOL to better identify plans that may be including ineligible employees. Without reviewing its reporting requirements to ensure adequate useful information, DOL may continue to lack insight into the make-up of these plans and will lack assurance that only select managers and highly compensated employees are participating.
Why GAO Did This Study 
Some types of employers offer executive retirement plans to help select employees save for retirement. There are no statutory limits on the amount of compensation that executives can defer or benefits they can receive under these plans. However, employees in these plans do not receive the full statutory protections afforded to most other private sector employer-sponsored retirement plans, such as those related to vesting and fiduciary responsibility, among other things. These plans can provide advantages but they also have disadvantages because plan benefits are subject to financial risk, such as in a company bankruptcy. GAO was asked to review these plans. This report examines, among other objectives, (1) the prevalence, key advantages, and revenue effects of executive retirement plans and (2) how federal oversight protects benefits and prevents ineligible participation. GAO analyzed industry-compiled Securities and Exchange Commission plan data for 2013 to 2017 (the most recent data available at the time of our analysis); reviewed relevant federal laws, regulations, and guidance; and interviewed officials from IRS and DOL, among others.
What GAO Recommends 
GAO is making four recommendations, including that IRS improve its instructions for auditing companies that offer these plans, and that DOL consider modifying reporting by companies to better describe participants in these plans. IRS and DOL neither agreed nor disagreed with our recommendations.
For more information, contact:
Charles Jeszeck
jeszeckc@gao.gov .

GAO-20-70 , United States Government Accountability Office, January 2020.

The U.S. Department of Labor’s  Employee Benefits Security Administration  announced a new compliance assistance webcast series, Getting It Right – Know Your Fiduciary Responsibilities:

  • March 11 – Basic fiduciary responsibilities when operating an employer-sponsored retirement plan, and prohibited transaction provisions and exemptions under ERISA.
  • March 12 – Reporting and disclosure requirements for employer-sponsored retirement plans, and the Department of Labor’s voluntary correction programs.
  • March 17 – Basic fiduciary responsibilities when operating an employer-sponsored group health plan, reporting and disclosure provisions under ERISA, and Qualified Medical Child Support Orders (QMCSOs).
Each webcast will begin at 2:00 p.m. Eastern Time. Register and learn more . Department of Labor, February 26, 2020.
Age is a case of mind over matter. If you don't mind, it don't matter.
"You are never too old to set another goal or to dream a new dream." - C.S. Lewis
On this day in 1770, Boston Massacre (Incident on King Street): British soldiers kill 5 men in a crowd throwing snowballs, stones and sticks at them. African American Crispus Attucks 1st to die; later held up as early black martyr. Massacre galvanizes anti-British feelings.

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