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Cypen & Cypen
April 2, 2020

Stephen H. Cypen, Esq., Editor

An SBA loan that helps businesses keep their workforce employed during the Coronavirus (COVID-19) crisis.  The Paycheck Protection Program is a loan designed to provide a direct incentive for small businesses to keep their workers on the payroll.  SBA will forgive loans if all employees are kept on the payroll for eight weeks and the money is used for payroll, rent, mortgage interest, or utilities.  The Paycheck Protection Program will be available through June 30, 2020.
Who Can Apply:  This program is for any small business with less than 500 employees (including sole proprietorships, independent contractors and self-employed persons), private non-profit organization or 501(c)(19) veterans organizations affected by coronavirus/COVID-19.  Businesses in certain industries may have more than 500 employees if they meet the SBA’s size standards for those industries.  Small businesses in the hospitality and food industry with more than one location could also be eligible at the store and location level if the store employs less than 500 workers. This means each store location could be eligible.
How to Apply:  You can apply through any existing SBA 7(a) lender or through any federally insured depository institution, federally insured credit union,  and Farm Credit System institution that is participating. Other regulated lenders will be available to make these loans once they are approved and enrolled in the program. You should consult with your local lender as to whether it is participating in the program.  Lenders may begin processing loan applications as soon as April 3, 2020.
Loan Details and Forgiveness: The loan will be fully forgiven if the funds are used for payroll costs, interest on mortgages, rent, and utilities (due to likely high subscription, at least 75% of the forgiven amount must have been used for payroll). Loan payments will also be deferred for six months. No collateral or personal guarantees are required. Neither the government nor lenders will charge small businesses any fees.
Forgiveness is based on the employer maintaining or quickly rehiring employees and maintaining salary levels.  Forgiveness will be reduced if full-time headcount declines, or if salaries and wages decrease.  This loan has a maturity of 2 years and an interest rate of .5%.  If you wish to begin preparing your application, you can download a sample form to see the information that will be requested from you. 

Other Assistance:  In response to the Coronavirus (COVID-19) pandemic, small business owners in all U.S. states, Washington D.C., and territories are currently eligible to apply for disaster assistance.  Enhanced Debt Relief is also available in SBA’s other business loan programs to help small businesses overcome the challenges created by this health crisis.  For information on additional Lending options, please click here.  SBA provides local assistance via 68 district offices and a nationwide network of resource partners. To find resources near you, please click here.  www.sba.gov

With global markets in a tailspin as economies grapple with the novel Coronavirus (COVID-19) pandemic, the funded status of plans has declined. Losses in equities have taken a bite out of returns, Treasury yields have plunged, and credit spreads have widened, likely leading to a decline in liability values. A sample plan with a discount rate of 2.94%, using the Citigroup AA curve (adjusted for daily proxy using the ML AA curve) at the beginning of the year, is now discounting liabilities at an effective rate of 3.45%, as of March 18; the Treasury part of that discount rate has fallen to 1.83% from 2.4%, while the spread component has risen to 1.62% from 0.49%. At a time when volatility appears to be the only constant in capital markets, transaction costs are high and market liquidity is strained. To this end, our consultants can help you determine the cost-effectiveness and prudence of any move you may be contemplating making to your plan. We remain strong in our belief that maintaining a disciplined approach to your overall pension investment strategy remains pivotal to meeting long-term financial goals.

As the COVID-19 virus wreaks havoc, performance in fixed-income markets has diverged with Treasuries exhibiting strong gains and spread-based strategies slipping into the red as a result, plans are likely overweight fixed-income allocations compared to targets with a corresponding underweight to equities. Hedge ratios may also have drifted from target amid lengthening duration, especially for plans holding extended-duration (STRIPS) assets relative to liability duration movement.

Below are some considerations for plan sponsors due to the current market environment and uncertain outlook:

  1. Maintain hedging program and rebalance hedge ratios back to target: We recommend clients assess the impact of recent market movements on hedge ratios. While interest rates have reached all-time lows and funded status may have declined, we believe maintaining duration still makes sense as part of a pension risk-management strategy. Pension liabilities have positive convexity, which would magnify the impact on funded status if interest rates dipped lower.
  2. Consider shifting a portion from STRIPS and long Treasuries to long credit if hedge ratio allows: Treasury-based investments have built sizeable gains as rates have declined, while long credit has underperformed. Spreads have widened over the course of the year and the ratio of spreads-to-yields has increased, underscoring the attractiveness of credit over Treasuries on a relative basis. We believe this may be an opportune time to trim gains from Treasuries and re-allocate the proceeds to long credit if this does not result in the hedge ratio being underweight relative to ranges of hedging tolerance.
  3. Raise cash for benefit payments: It is prudent to have at least a couple of months of benefit payments on hand as market liquidity remains uncertain. The trading environment is experiencing wide bid-ask spreads, resulting in unusually high transaction costs. We recommend clients allow managers some flexibility as they seek best execution when liquidating assets.
  4. Strategically rebalance back towards equity targets: Plans may be underweight return-seeking assets due to the widespread selloff in equities. We recommend clients consider rebalancing towards equity targets by harvesting gains in fixed-income investments and redeploying those into stocks where appropriate.

Richard T. Chari, Senior Consultant, Corporate Define Benefit, www.nepc.com, March 24, 2020.

The court concluded that "the amended complaint appears to reflect plaintiffs’ own opinions on ERISA and the investment strategy they believe is appropriate for people without specialized knowledge in stocks or mutual funds.”
The 7th U.S. Circuit Court of Appeals has affirmed a District Court’s ruling in a lawsuit alleging breaches of Employee Retirement Income Security Act (ERISA) fiduciary duties by fiduciaries of two Northwestern University retirement plans. The appellate court’s decision notes that the plaintiffs alleged Northwestern breached its fiduciary duty by “allowing TIAA-CREF to mandate the inclusion of the CREF Stock Account” in the plans and by allowing TIAA to serve as recordkeeper for its funds. However, the court pointed out, their amended complaint also states that many plan participants invested money in TIAA’s Traditional Annuity, which was an attractive offering because it promised a contractually specified minimum interest rate.
While the plaintiffs do not allege it was imprudent for the plans to offer the Traditional Annuity—but rather, object to the plans offering additional TIAA products (including the Stock Account) and to TIAA serving as the recordkeeper for those products—the court says it ignores the arrangement that allowed participants to invest in the popular Traditional Annuity in the first place. TIAA required the plans to use it as a recordkeeper for its products and to offer participants the Stock Account if the plans offered the Traditional Annuity. “Given the favorable terms and attractive offerings of the Traditional Annuity, which are outlined in plaintiffs’ amended complaint, it was prudent for Northwestern to accept conditions that would ensure the Traditional Annuity remained available to participants. This is especially true considering participants with existing Traditional Annuity funds would be subject to a sur-render charge of 2.5% if that offering was removed,” the appellate panel wrote in its opinion.
The 7th Circuit added that rather than compare Northwestern’s actions to those of a “hypothetical prudent fiduciary,” the plaintiffs criticize what may be a rational decision for a business to make when implementing an employee benefits program. Citing the decision in Lockheed Corp. v. Spink, the court said “[n]othing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kinds of benefits employers must provide if they choose to have such a plan.” The court added: “That plaintiffs prefer low-cost index funds to the Stock Account does not make its inclusion in the plans a fiduciary breach. … It would be beyond the court’s role to seize ERISA for the purpose of guaranteeing individual litigants their own preferred investment options.”
Assuming plaintiffs’ allegations are true, the court said, they fail to show an ERISA violation. “Under the plans, no participant was required to invest in the Stock Account or any other TIAA product. Any participant could avoid what plaintiffs consider to be the problems with those products (excessive recordkeeping fees and underperformance) simply by choosing from hundreds of other options within a multi-tiered offering system. Participants were not bound to the terms of any TIAA funds simply because they were included in the plans,” the opinion states.
The plaintiffs also alleged Northwestern breached its fiduciary duties by establishing a multi-entity recordkeeping arrangement that allowed recordkeeping fees to be paid through revenue sharing.  On appeal, plaintiffs proposed alternative recordkeeping arrangements they would have preferred. For example, plaintiffs argued Northwestern should have implemented a negotiated total fee based on a flat recordkeeping fee, which could have been “allocated to participants.” But, the court said, the plaintiffs failed to support their claim that a flat-fee structure is required by ERISA or would even benefit plan participants. It suggested such a structure may have the opposite effect of increasing administrative costs by failing to match the pro-rata fee that individual participants could achieve at a lower cost through exercising their investment options in a revenue-sharing structure. “Either way, this court has recognized that although total recordkeeping fees must be known to participants, they need not be individually allocated or based on any specific fee structure,” the appellate panel wrote.
Disagreeing with the plaintiffs’ contention that Northwestern was required to seek a sole recordkeeper to reduce recordkeeping costs, the court reiterated that it was prudent to keep TIAA as a recordkeeper to allow for access to the popular Traditional Annuity and avoid the surrender charge that would be imposed if participants were to get out of that option. It added that the plaintiffs also didn’t show that the participants would have been better off if TIAA was the sole recordkeeper. The complaint does not include Fidelity’s recordkeeping costs, and it fails to allege that those costs are the reason for higher fees. “Regardless, ERISA does not require a sole recordkeeper or mandate any specific recordkeeping arrangement at all,” the appellate panel noted.
The opinion states: “Again, plaintiffs’ allegations seem to rely on their disapproval of TIAA’s role as recordkeeper rather than any imprudent conduct by Northwestern.”  The plaintiffs further alleged Northwestern breached its fiduciary duties by providing investment options that were too numerous, too expensive or underperforming. They alleged that some of these options were retail funds with retails fees, some had “unnecessary” layers of fees, and some could have been cheaper but Northwestern failed to negotiate better fees. The court said, “Plaintiffs also spill much ink in their amended complaint describing their clear preference for low-cost index funds. We understand their preference and acknowledge the industry may be trending in favor of these types of offerings.”  The court found that the plaintiffs failed to allege, though, that Northwestern did not make their preferred offerings available to them, instead finding that, in fact, the university did make them available. “Plaintiffs simply object that numerous additional funds were offered as well. But the types of funds plaintiffs wanted (low-cost index funds) were and are available to them, eliminating any claim that plan participants were forced to stomach an unappetizing menu,” the appellate panel wrote.
In conclusion, the court said, “Taken as a whole, the amended complaint appears to reflect plaintiffs’ own opinions on ERISA and the investment strategy they believe is appropriate for people without specialized knowledge in stocks or mutual funds.” Citing its decision in Loomis v. Exelon Corp., it concluded that defendants “cannot be faulted for” leaving “choice to the people who have the most interest in the outcome.”  The 7th Circuit agreed with the District Court’s denial of the plaintiffs’ request for leave to file a second amended complaint because they “unduly delayed bringing the claims, and the four proposed counts failed to state claims for relief and did not state new or additional claims.”  Rebecca Moore, Planadviser, March 26, 2020.
I am warning the public about fraudulent letters threatening suspension of Social Security benefits due to COVID-19 or coronavirus-related office closures. Social Security will not suspend or discontinue benefits because their offices are closed.  The Social Security Office of the Inspector General has received reports that Social Security beneficiaries have received letters through the U.S. Mail stating their payments will be suspended or discontinued unless they call a phone number referenced in the letter. Scammers may then mislead beneficiaries into providing personal information or payment via retail gift cards, wire transfers, internet currency, or by mailing cash, to maintain regular benefit payments during this period of COVID-19 office closures.
As of Tuesday, March 17, 2020, local Social Security offices were closed to the public due to COVID-19 concerns. However, Social Security employees continue to work. Social Security will not suspend or decrease Social Security benefit payments or Supplemental Security Income payments due to the current COVID-19 pandemic. Any communication you receive that says Social Security will do so is a scam, whether you receive it by letter, text, email, or phone call.  Social Security will never:

  • Threaten you with benefit suspension, arrest, or other legal action unless you pay a fine or fee.
  • Promise a benefit increase or other assistance in exchange for payment.
  • Require payment by retail gift card, cash, wire transfer, internet currency or prepaid debit card.
  • Demand secrecy from you in handling a Social Security-related problem.
  • Send official letters or reports containing personally identifiable information via email.

If you receive a letter, text, call or email that you believe to be suspicious, about an alleged problem with your Social Security number, account, or payments, hang up or do not respond. We encourage you to report Social Security scams using our dedicated online form. Please share this information with your friends and family, to help spread awareness about Social Security scams.  Learn about Social Security services during the COVID-19 pandemic, by visiting the Coronavirus Disease (COVID-19) pageGail S. Ennis, Inspector General for Social Security, https://blog.ssa.gov, March 27, 2020.
New claims shatter records: 74,021 in Florida; 3.3 million in the U.S. And many Floridians say the state’s website won’t take their claim.  The number of Floridians who applied for unemployment benefits exploded, driven by efforts to quell the coronavirus pandemic that shut down businesses and caused mass layoffs.
A total of 74,021 people signed up, the U.S. Department of Labor said Thursday, smashing the old record of 40,403 set in 2009 during the Great Recession. The total was an astronomical jump from the 6,256 claims filed a week earlier.  Across the country, nearly 3.3 million workers applied for unemployment benefits, blowing away the previous record set in 1982 of nearly 700,000.  The number of jobless claims is a key indicator of the health of Florida’s $1.1 trillion economy.  It’s also an omen of how much more trouble could be on the way, said Jeff Tucker, an economist with the real estate and data company Zillow.
“There’s the initial shock of potentially millions of people having been laid off, especially in the restaurant, hotel and travel industry,” Tucker said. “Then the question is how far outward will the effects ripple into the economy because people have trouble paying the bills — car payments, rent, a mortgage — because they’re not getting their salary anymore.”  In a March 19-24 survey of more than 11,500 adults nationwide, 33 percent of respondents told the Pew Research Center that they or someone in their household had lost their job or suffered a pay cut or reduction in work hours because of the coronavirus.  The job losses hit Hispanics, younger people and lower-income people especially hard, the survey found.  The number of new claims could be even bigger. Florida Gov. Ron DeSantis said 21,000 Floridians filed claims just on Monday. And an unknown number of others tried to file a claim, but were thwarted by a state website that kicked them out of the process or locked them out of accounts.  The agency in charge of Florida’s unemployment benefits, the state Department of Economic Opportunity, says it’s been swamped by an eight-fold increase in calls — from 28,000 to 224,000 from one week to the next — and is struggling to add staff and technology to keep up with the surge.
Panama City bartender Kristina Page said she was laid off from her job for 30 days because of the business closures, and her husband, a union electrician, is out of work because the job in Detroit he was headed to was eliminated when auto plants there shut down. Neither, she said, had been able to file for unemployment insurance “because the system is so messed up and overloaded.”  If she can’t finish her application by Saturday, she will lose this week of pay as well as last, Page said in an email to the Tampa Bay Times.  “The website just keeps fading in and out and sending you back to the beginning,” she said. "I spent hours this morning trying to sign up with no luck. My husband tried calling for hours and never got through.  “It’s ridiculous,” she said. “I don’t know how long they think we can survive with no money coming in. We are in better shape than a lot of others we know. People are not going to handle this well when the lights and cable get shut off.”
For those who can file a claim, Florida’s unemployment insurance program currently pays a maximum of $275 a week for 12 weeks, a meager outlay compared to most other states. During the past decade, the state has also made it difficult for laid off workers to collect benefits.  DeSantis has made a couple moves to make it a little easier. He signed an executive order Tuesday aimed at making benefits available to more people. Applicants no longer have to apply to five jobs a week to receive benefits or fill out an application for Employ Florida, where they previously tracked their progress on finding a new job. That change applies retroactively to March 15.  Earlier this week, the U.S. Travel Association revised its projection for how many jobs would be lost in the travel industry from 4.6 million to 5.9 million, a big chunk of which are in Florida. The travel industry losses alone will increase the national unemployment rate from 3.5 percent to 7.1 percent by the end of April, the association predicted.
“Robust intervention by the federal government is the only avenue to make sure those outcomes are minimized," said Roger Dow, the association’s president and chief executive officer.  Ball State’s Center for Business and Economic Research predicted the national unemployment rate will rise above 14 percent in the next 90 days and cost the U.S. economy $7 trillion.  “These are likely very conservative estimates, yet it argues that job losses in March, April, May and June may be the four largest in U.S. history, topping the 1.9 million jobs lost in the weeks following V-J Day in September 1945,” said economist Michael Hicks, one of the authors of the Ball State report. Graham Brink and Richard Danielson, Tampa Bay Times, March 26, 2020.
Assets in 401(k) plans tracked by Alight Solutions have dropped by about 20% since Feb. 24, a result primarily of stock-market declines rather than participants' bailing out of their accounts.  "We have seen the overall allocation to equities drop from 66% at the end of February to about 62% now," Robert Austin, the company's Charlotte, N.C.-based director of research wrote in an email.  "Much of this has to do with the market performance of stocks," he added. "The overall allocation hasn't really changed too much because while some people are trading out of funds like target-date funds, many people are contributing to them."
At year-end 2019, the overall equity allocation was 68.1% vs. 66.6% at year-end 2018.  Alight Solutions recently noted that the use of qualified default investment alternatives — dominated by target-date funds — and auto-enrollment have meant that participants' assets are being replenished even amid stock market turmoil.  "While many investors have transferred money out of the accounts, people continue to make their contributions to target date funds — and equities in general — thereby reducing the impact of the trades and market activity," Mr. Austin wrote.
For example, from Feb. 28 to March 18, the aggregate asset allocation to target date funds slipped to 29% from 30%, according to Alight's 401(k) index, which has been following investing behavior of clients' participants since 1997. The index covers more than 2 million participants with more than $200 billion in Alight record-kept accounts.  The asset allocation to large cap domestic equity — the second biggest category in the Alight 401(k) index — dropped to 24% from 25% during this period.  The biggest change came from stable value, where asset allocation rose to 13% from 10%. Bond allocations rose to 10% from 9% and money market allocations rose to 2% from 1%.  The latest allocation figures aren't that much different from those of recent years. For example, the target-date fund allocation was 29.3% last year and 28% in 2018. Large cap U.S. domestic equity's allocation was 26% last year and 24.1% in 2018.  Stable value's allocation was 9.5% in 2019 vs. 11.2% in 2018. The bond allocation was 7.9% last year vs. 8% in 2018.  Robert Steyer, Pension&Investments, Mach 20, 2020.
After the 2008-2009 financial meltdown, there were massive changes in the 401(k) and 403(b) industry. More wealth managers began to see the defined-contribution market as a hedge for their businesses as their individual clients pulled money out of the market.  They earned less from DC plans than from wealth management clients – with more liability. And DC assets, and therefore revenue, were down 40%. But people kept contributing to their DC accounts because of automatic deductions from payroll and because savers were reluctant to stop funding their retirement.
The financial crisis showed the value of professional management, with products such as target-date funds proving their mettle over investors’ homemade portfolios. And some, though not all, active managers fared better than index target-date funds. The crisis also highlighted the fact that target-date funds were not created equally, exposing 2010-vintage funds that were loaded with equities to boost returns and then fell below the indices.  Yes, plan sales dried up for a while. But retirement plan advisers used the crisis as an opportunity to reach out to clients and participants more than usual. RPAs prospected new plans where an adviser at worst had been absent, and at best had been silent during the crisis, dealing instead with wealth management clients.  In 2009, fewer advisers were able or willing to act as fiduciaries, which provided more opportunities to specialists. RPAs continued to focus on high fees, especially those charged by firms that only dabbled in DC plans.
After the crisis, there was a surge of wealth managers who began to focus on DC plans. Today’s elite RPAs – who were all blind squirrels at one point in their careers – saw their DC business blossom in part because of the longest bull run in history. And those plan participants who stayed the course saw great dividends.
What changes to the DC market can we expect as a result of the current crisis?  Much depends on the market fallout and economic impact. But it’s hard to imagine that we have seen the worst of it because businesses in many sectors, even beyond the obvious ones such as travel and energy, will be affected.
Here are a dozen predictions:

  1. Active managers that have done a good job preparing for a downturn will see a resurgence as investors shy away from index strategies and active target-date fund managers that have taken too much risk. 
  2. More wealth managers who have been looking to expand to or enter the DC market will focus on DC plans as a hedge to their individual investor business
  3. The move to flat-fee payments will accelerate as a hedge against drastic market downturns. Yes, flat-fee advisers lose the upside when markets improve, but the argument that fees should rise with assets is getting harder to make.
  4. The focus on participants will increase. Workers will have more money in the market than ever, and they will need guidance and advice. Because of that, RPAs who already have a participant advice model will benefit. That will also lead to more RPAs affiliating with or selling to aggregators. Further, wirehouses and broker-dealers that have been creating tools to serve participants will retain current advisers and even attract some specialists.
  5. With more people working remotely during the crisis, many will continue to do so, at least part-time. As a result, there will be more opportunities to access and interact with them digitally.
  6. Savvy advisory firms will hire younger advisers to act as financial coaches and mentors to participants, not just to help with retirement planning but with overall management of finances and benefits. The current “eat what you kill” cold-calling model is unattractive to most younger workers.
  7. Specialists will take business from DC plan dabblers, especially from those who have grown during this historic bull market. Savvy dabblers who are not willing to focus on DC plans will either partner or sell their DC practice to specialists, while protecting their wealth management and IRA opportunities.
  8. Managed accounts will expand dramatically, especially among older workers or anyone with a significant account balance. More plans will use managed accounts as their default.
  9. More plans will use target-date funds. Currently, less than half of smaller employers offer them, according to the most recent Society for Human Resource Management benefits survey.
  10. Benefits firms, which might not be hurt as much as those that charge asset-based fees, will continue to aggressively buy and build retirement practices. They might even look to start their own pooled-employer plans (PEPs) for their brokers.
  11. PEPs will be more attractive to plans, regardless of size. There’s safety in numbers, and the desire to outsource work and liability will become more attractive as companies are forced to streamline all processes and cut costs. 
  12. Look for further consolidation. Money managers will buy up competitors, in line with Franklin Templeton’s recent acquisition of Legg Mason. At the same time, more money managers will look to participate in the even more attractive and sticky retirement market. Record =-keeper consolidation will also accelerate, as retirement plans move to RPA specialists, who will continue to inherit record keepers when they take over plans. Those specialists have the resources to consolidate their books of business or at least limit the record keepers they sell going forward.

A bonus prediction, and my personal favorite: There will be less handshaking.  Fred Barstein, https://www.investmentnews.com, March 18, 2020.

Five former and current circuit judges, who sided with one organization in a competitive bid fight over a South Florida child welfare government contract, received a written reprimand from the Florida Supreme Court.

In September 2018, Judges Marcia Caballero, Rosa Figarola, Teresa Pooler and Mavel Ruiz, and retired judge Cindy Lederman wrote a letter to the Florida Department of Children and Families endorsing the group Our Kids in the re-bidding of a contract to serve foster kids in Miami-Dade and Monroe counties. The contract was potentially worth $500 million. The letter had no clear effect on the bitter process: the company that ultimately won the five-year contract in 2019, Citrus Health, or Citrus Family Health Network, was competing to unseat Our Kids as the chief provider of foster child services in Miami-Dade and Monroe.
According to the judicial opinion, the now-retired Lederman drafted the letter and recruited other judges to sign on in support of Our Kids and sent it to DCF on official judicial letterhead.  “We have worked with Our Kids and we have complete faith only in the Our Kids model of leadership. When you select the agency please keep our voices in mind,” the judges wrote in the letter.  An investigation by the Judicial Qualifications Commission found that there was probable cause to believe Lederman and the rest of the judges violated several canons of the Florida Code of Judicial Conduct, including the preservation of impartiality and integrity of judges.
“We agree with the JQC’s findings of fact and generally agree with the stipulated discipline” of a written reprimand, the Florida justices wrote. “Each respondent took responsibility for the misconduct and acknowledged that it should not have happened.”  The state’s high court also said the letter was ultimately “not intended to promote the financial interests of themselves or others,” and considered that all five judges had “otherwise unblemished disciplinary history.”  Bianca Padro Ocasio, Miami Herald, March 27, 2020.
Although interest rates are at all-time historic lows, it doesn’t mean that a retiree pension risk transfer is a bad idea for your defined benefit pension plan. Below is a brief discussion on the pros and cons of considering a pension risk transfer for retirees at this time.
Reasons to Complete a Pension Risk Transfer:
PBGC Premium Savings: If your company’s pension plan is at the PBGC variable premium cap, the PBGC savings will be in excess of $644 per retiree in 2021. In a low interest rate environment, it is likely your plan is at or close to the variable premium cap. Focusing on retirees with small benefits will help manage the cost of the pension risk transfer while maximizing savings. For more on current and historical rate information, click to see PBGC Premium Rates.
Economic Savings: Plan sponsors tend to focus on the cost of the annuity premium versus the accounting liability. However, the accounting liability ignores on-going expenses related to running the plan. These expenses include PBGC premiums, administrative costs and investment costs. The “economic cost” of the plan’s liability is the accounting liability plus these additional costs. The annuity premium when compared to the economic cost typically results in overall savings for the plan sponsor even in a low interest rate environment. This is especially true when the plan is at the PBGC premium variable cap.
Competitive Market: There are currently about 10 to 15 insurers actively buying retiree liabilities from pension plans. Based on the size of a particular annuity premium, a plan sponsor can expect to receive quotes from about half of the insurers in the market. Insurance companies can be competitive with their retiree annuity premiums because they have a lot of experience predicting mortality for retirees. In addition, retiree annuities offer a good offset to life insurance risk.
Capacity: Insurance companies currently have capacity to buy retiree annuities. If interest rates rise significantly and many more pension plans start looking to sell annuities, will the insurance companies have capacity to take on a flood of new pension risk transfers? Additionally, with the basic laws of supply and demand, if there is a large supply of plan sponsors wanting to do pension risk transfers, will the annuity premium be as attractive when compared to the economic cost of the retiree liability? We believe a spike in current low interest rates could reduce capacity and pricing competitiveness.
Reasons Against Pension Risk Transfer (But Consider it Anyway)
Higher Minimum Required Contributions: A retiree pension risk transfer is likely to increase the minimum required contribution of a plan due to differences in assumptions used to determine minimum required contributions. Because minimum funding requirements are allowed to use more aggressive assumptions, the difference between the insurance premium paid and the liabilities released creates a loss to the plan. This loss is amortized and paid over the next seven plan years. However, the increased contributions are typically viewed as an acceleration of future contributions. As the minimum required interest rates drop, future contributions will increase if the retirees remain in the plan.
Settlement Accounting: A full retiree pension risk transfer is likely to trigger settlement accounting for a pension plan. This settlement accounting typically results in a one-time charge to the income statement. Depending on the sensitivity of one-time charges for a particular company, this could be an obstacle. However, a settlement is a “below-the-line” cost under ASU 2017-7. This makes settlements less of an issue for many companies. Additionally, even if settlements are an obstacle for your company, performing multiple smaller pension risk transfers with smaller premiums over a number of fiscal years can be a way to avoid settlement costs.
Plan Not 80% Funded: Annuities cannot be purchased for a plan that is not 80% funded on a PPA interest rate relief basis unless the plan sponsor makes some immediate funding to the plan. However, the 80% funded status threshold is determined based on a smoothed interest basis. As a result, the funded status of many plans is more than 80% even in this low interest rate environment.
Interest Rates Will Rise: For years, there has been talk that interest rates must go up. However, they continue to remain low. In a low interest rate environment, it makes sense to monitor interest rates. Plan sponsors should consider being ready to buy annuities by getting their data ready and setting a targeted annuity premium. They can then monitor the impact of changing interest rates. Once the target is met, they will be ready to move quickly with the pension risk transfer.
Pension Risk Transfer Takeaways:
With the current market volatility and extreme swings in interest rates, we don’t expect many plan sponsors to move forward with a pension risk transfer for retirees in the near-term. However, if markets stabilize and interest rates begin to rise consistently, insurance companies will likely be eager to close some deals. This could result in attractive pricing.  It’s never too early to start planning for a pension risk transfer. As a first step, we suggest performing a financial analysis to determine the impact of a pension risk transfer for retirees. With this financial information, most plan sponsors can be positioned to move quickly and recognize the right time to buy annuities for retirees even in a low interest rate environment.
Larry Scherer, www.findley.com, March 25, 2020.
Participants holding target-date funds in their 401(k) plans now have more reason to cling to the funds even as the market plummeted into bear territory.
A recent paper from the University of Pennsylvania's Wharton School and the Vanguard Group Inc. suggests that investors who remain faithful to their target-date funds — and stick with them exclusively over the long term — could reap sharply greater returns than those who don't.  The academic paper, which was released in January, studied target-date funds that were introduced into 401(k) plans from January 2003 to June 2015, and found that 12 months after the funds first appeared in a plan, target-date investors earned annualized returns as much as 2.3% higher than non-target-date investors. The findings covered periods of strong market growth as well as the 2007-08 market downturn.  Over 30 years, the improved returns could translate into 50% more retirement wealth for participants who invest solely in target-date funds than those who invest in other funds offered in their plans, according to the researchers' calculations. Even semi-faithful or "mixed TDF investors" investing in both target date and other funds have much to gain, conceivably realizing up to 30% greater returns, the researchers found.
"That's a big number," said Olivia Mitchell, the paper's co-author and a professor of business economics and public policy and executive director of the Pension Research Council at the University of Pennsylvania's Wharton School in Philadelphia. "I think it's a testament to the power of putting your money in low-cost funds and having a professional manage it for you."  The paper analyzed target-date funds in 880 defined contribution retirement plans covering 1.2 million participants. The target-date funds studied were almost exclusively low-cost Vanguard Group indexed portfolios, diversified across global equity and fixed income with management fees less than 20 basis points. Ms. Mitchell and her co-author — Stephen Utkus, principal and director of the Vanguard Center for Investor Research in Malvern, Pa. — compared participant portfolio exposures as well as target-date fund adoption rates one year after the introduction of the funds in plan investment menus. Once participants adopted target-date funds, their allocation to equities or "equity share" rose. For the faithful, or "pure TDF investors," the allocation to equities rose by an average of 24 percentage points relative to non-target-date fund investors. For mixed investors, the allocation climbed by 13 percentage points. Meanwhile, their holdings in cash and company stock fell.
"Equity share went up for both pure and mixed investors because they held relatively little equity before the TDFs were introduced," Ms. Mitchell said. Target-date funds also increased participant returns. For pure target-date fund investors, returns were 19 basis points a month higher than non-target date investors, or 2.3% on an annualized basis. Mixed target-date fund investors, meanwhile, posted returns that were 14 basis points a month higher, or 1.7% on an annualized basis.  To determine the impact the greater returns would have on retirement balances over a 30-year period, the researchers did what they called a "static calculation." They took a stylized hypothetical investor and forecast outcomes assuming 1% real wage growth and no leakage from retirement accounts during that time.
The researchers, however, conditioned their findings on the fact that only low-cost Vanguard funds were studied. "We cannot necessarily conclude that people's wealth would be 50% higher if they were holding very high-cost target-date funds offered by some other fund family," Ms. Mitchell said.  Indeed, some observers found the potential 50% improvement in retirement balances aggressive. David Blanchett, head of retirement research for Morningstar Inc. in Chicago, felt that the estimate was aggressive due to the number of people opting out of the target-date fund default investment option over time. While roughly 80% of new hires are enrolled in target-date funds when selected by the provider as the default option, 2% to 5% will opt out every year after that, "mitigating its effect," he said.
"Say people opt out at 5% a year, you can have half of the people out of the TDF after 10 years," Mr. Blanchett said.  Mr. Blanchett and other observers also pointed out that target-date funds aren't perfect answers for participants as they essentially put everyone within a five-year age range into a one-size-fits-all portfolio. "I do believe that TDFs are in a much better place than we were before but it's hard for me to envision that the perfect solution is one where everyone within five years of age has the exact same portfolio," Mr. Blanchett said.  Jason Shapiro, director of investments at Willis Towers Watson PLC in New York, echoed similar views. "There seems to be a recognition that target-date funds may need to evolve further or possibly change drastically in order to meet the retirement readiness goals of a broad, diverse group of participants," he said.
Mr. Shapiro also noted that target-date funds often have a relatively high percentage of assets allocated to equities even as participants hit retirement, putting them at risk of losing a significant portion of their wealth.  Retirees having to withdraw money from their 401(k) accounts during a market downturn are especially hit hard because their balances are falling at the same time they're pulling assets out of their accounts, locking in their losses, Mr. Shapiro said.  At retirement, target-date funds hold an average of 48% in "return-seeking assets," which includes equities (40%), commodities, real estate investment trusts, and high-yield and emerging market debt, Mr. Shapiro said. The allocation to return-seeking assets ranged from 25% to as high as 64.3%, according to Willis Towers Watson's database of 22 target-date fund providers.
Still, most investors -- whether in a target-date fund or a do-it-yourself core lineup -- have been challenged by the coronavirus-driven market downturn "given typical broad market exposures of each," he said.  In fact, industry observers agreed that while target-date funds might need some fine-tuning, they're still a good way to go for investors ill-prepared to navigate the vagaries of the market. "I think any way you can keep investing simple and low cost the better," said John West, a partner at Research Affiliates LLC in Newport Beach, Calif., explaining that simplicity reduces the risk of investors doing harm to their portfolio by chasing returns or abandoning certain segments of their portfolio.
"If you combine headlines and recent returns for European and/or emerging markets stocks, you can readily envision large cohorts of 401(k) investors selling these asset classes, despite attractive forward-looking returns," Mr. West said.  People tend to make the classic investing mistake, selling when markets are down and buying when they're high, such as they did during the dot-com bubble in the late 1990s, he said.  "There's just no incentive to try to outperform when you're an individual investor," he said. "You just aren't frankly equipped. Pension funds have a hard enough time doing it." Margarida Correia, Pension&Investments, March 27, 2020.
A federal judge delivered an ultimatum Thursday to attorneys representing Gov. Ron DeSantis and his administration in a lawsuit challenging a 2019 law that implemented a constitutional amendment restoring voting rights to felons who have completed their sentences.
U.S. District Judge Robert Hinkle warned the state’s attorneys to come up with a process to determine whether felons have paid “legal financial obligations” as required by the law and whether those felons have the ability to pay the court-ordered fees and fines. He said that work needs to be done before an April 27 trial in the case — or else.  “If the state is not going to fix it, I will,” Hinkle snapped during a telephone hearing Thursday afternoon.  Hinkle issued a preliminary injunction in October and ruled that it is unconstitutional to deny the right to vote to felons who are “genuinely unable” to pay financial obligations. A panel of the 11th U.S. Circuit Court of Appeals upheld Hinkle’s ruling, but DeSantis has requested what is known as an “en banc,” or full court, review.  In the preliminary injunction, Hinkle told the state to come up with an administrative process in which felons could try to prove that they are unable to pay financial obligations and should be able to vote.
Months later, state elections officials have not developed such a system, Mohammad Jazil, a lawyer representing Secretary of State Laurel Lee, told Hinkle during Thursday’s hearing in the challenge filed by voting-rights and civil-rights groups.  Under a process that has been in effect for years, the state Division of Elections verifies that Floridians who register to vote are eligible to cast ballots by checking a variety of court databases. Voters who are not deemed eligible are flagged, and the information is sent to county supervisors of elections, who make the final determination about eligibility and have the authority to remove people from the voting rolls.
State Division of Elections Director Maria Matthews said in a Jan. 27 deposition that her office is “not sending down” to local supervisors any names or records of felons related to payment of legal financial obligations.  “If the state is still working on it, but not sending files down, then is it appropriate for the plaintiffs to say that there is no process? We believe the answer to that is, no. The state is working diligently every day. The state will have a process. The state has contingencies planned for if the courts go one way, the courts go another way. The state currently believes it would be irresponsible to lay out a process only to have it be changed by a court order a week, a month, two months from now, with the November election coming up,” Jazil told Hinkle during Thursday’s hearing.
But Hinkle, who for months has chided the state for failing to come up with a plan, interrupted Jazil.  “If you don’t have a position in place by the time of trial, and I decide that it is a constitutional right — and if you read the 11th Circuit decision you probably don’t want to bet against that — the answer’s not going to be, ‘Oh, start working on this.’ If the state is not going to fix it, I will,” the federal judge admonished.  Florida voters in 2018 passed the constitutional amendment designed to restore the voting rights of felons who have served their sentences. But the Republican-controlled Legislature in 2019 passed a controversial law to carry out the amendment, including requiring felons to pay legal financial obligations to vote.
The state lacks a uniform or consistent method of applying the 2019 law, with some records incomplete and others having discrepancies, according to court documents. Hinkle called the process “an administrative nightmare” during an October hearing.  Hinkle told Jazil on Thursday that “if the state wants to fix it, the state needs to get going.”  “I’ll be asking again at trial, where are you. And if the answer is, ‘we’re just waiting’ … You might want to change tack,” he added.  The financial obligations are at the heart of the legal challenge filed last year by groups including the American Civil Liberties Union and the Southern Poverty Law Center. The groups argued that the linkage between finances and voting amounted to an unconstitutional “poll tax.”  A three-judge panel of the Atlanta-based federal appeals court in February upheld Hinkle’s decision that the state cannot bar voting by felons who can’t afford to pay court-ordered fees and fines.
“The long and short of it is that once a state provides an avenue to ending the punishment of disenfranchisement — as the voters of Florida plainly did — it must do so consonant with the principles of equal protection and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny,” judges Lanier Anderson III, Stanley Marcus and Barbara Rothstein decided.  The panel early this month refused to put its Feb. 19 decision on hold while the 11th Circuit considers DeSantis’ request for a full-court hearing.  Hinkle’s October injunction applied only to the 17 plaintiffs in the case, but the judge said Thursday he intended to grant class certification in the lawsuit. In addition, any declaratory judgment ordered by Hinkle would apply more broadly.
The judge also denied the state’s motion for summary judgment in the lawsuit, allowing the April 27 trial to proceed but with a hitch.  The lawyers in the case said they are trying to choose a video conferencing platform to carry out the trial remotely, due to concerns about the novel coronavirus.  To prevent the spread of COVID-19, the respiratory disease caused by the virus, health officials have discouraged gatherings of more than 10 people. Further complicating matters, many of the attorneys representing the numerous plaintiffs in the case live in New York. DeSantis has ordered people flying from New York to Florida to self-quarantine for two weeks, Hinkle noted.  “That makes it real hard for New York lawyers to come down here and try a case,” he said.  Dara Kam, Miami Herald, March 27, 2020.
Five federal financial regulatory agencies today issued a joint statement encouraging banks, savings associations and credit unions to offer responsible small-dollar loans to consumers and small businesses in response to COVID-19.
The statement of the Board of Governors of the Federal Reserve System, Consumer Financial Protection Bureau, Federal Deposit Insurance Corporation, National Credit Union Administration, and Office of the Comptroller of the Currency recognizes that responsible small-dollar loans can play an important role in meeting customers' credit needs because of temporary cash-flow imbalances, unexpected expenses, or income disruptions during periods of economic stress or disaster recoveries. Such loans can be offered through a variety of structures including open-end lines of credit, closed-end installment loans, or appropriately structured single payment loans.  The agencies state that loans should be offered in a manner that provides fair treatment of consumers, complies with applicable laws and regulations, and is consistent with safe and sound practices.
For borrowers who experience unexpected circumstances and cannot repay a loan as structured, banks, savings associations and credit unions are further encouraged to consider workout strategies designed to help borrowers to repay the principal of the loan while mitigating the need to re-borrow.
This statement follows other actions taken by the agencies to encourage financial institutions to meet the financial services needs of their customers and members who have been affected by COVID-19. For example, the federal banking agencies issued a joint statement on March 19 informing institutions that the agencies will favorably consider retail banking and lending activities that meet the needs of affected low- and moderate-income individuals, small businesses, and small farms for Community Reinvestment Act purposes, that are consistent with safe and sound banking practices and applicable laws, including consumer protection laws.

In addition to today's statement, the agencies are working on future guidance and lending principles for responsible small-dollar loans to facilitate the ability of banks, credit unions, and saving associations to more effectively meet the ongoing credit needs of their customers, members, and communities.  FDIC Press Release, FDIC: PR-39-2020, March 26, 2020.
To help people facing the challenges of COVID-19 issues, the Internal Revenue Service announced today a sweeping series of steps to assist taxpayers by providing relief on a variety of issues ranging from easing payment guidelines to postponing compliance actions.  "The IRS is taking extraordinary steps to help the people of our country," said IRS Commissioner Chuck Rettig. "In addition to extending tax deadlines and working on new legislation, the IRS is pursuing unprecedented actions to ease the burden on people facing tax issues. During this difficult time, we want people working together, focused on their well-being, helping each other and others less fortunate."
"The new IRS People First Initiative provides immediate relief to help people facing uncertainty over taxes," Rettig added "We are temporarily adjusting our processes to help people and businesses during these uncertain times. We are facing this together, and we want to be part of the solution to improve the lives of all people in our country."  These new changes include issues ranging from postponing certain payments related to Installment Agreements and Offers in Compromise to collection and limiting certain enforcement actions. The IRS will be temporarily modifying the following activities as soon as possible; the projected start date will be April 1 and the effort will initially run through July 15. During this period, to the maximum extent possible, the IRS will avoid in-person contacts. However, the IRS will continue to take steps where necessary to protect all applicable statutes of limitations.
"IRS employees care about our people and our country, and they have a strong desire to help improve this situation," Rettig said. "These new actions reflect just one of many ways our employees are working hard every day to assist the nation. We care, a lot. IRS employees are actively engaged, and they have always delivered for their communities and our country. The People First Initiative is designed to help people take care of themselves and is a key part of our ongoing response to the coronavirus effort."
More specifics about the implementation of these provisions will be shared soon. Highlights of the key actions in the IRS People First Initiative include:
Existing Installment Agreements - For taxpayers under an existing Installment Agreement, payments due between April 1 and July 15, 2020 are suspended. Taxpayers who are currently unable to comply with the terms of an Installment Payment Agreement, including a Direct Debit Installment Agreement, may suspend payments during this period if they prefer. Furthermore, the IRS will not default any Installment Agreements during this period. By law, interest will continue to accrue on any unpaid balances.
New Installment Agreements - The IRS reminds people unable to fully pay their federal taxes that they can resolve outstanding liabilities by entering into a monthly payment agreement with the IRS. See IRS.gov for further information.
Offers in Compromise (OIC) - The IRS is taking several steps to assist taxpayers in various stages of the OIC process:

  • Pending OIC applications - The IRS will allow taxpayers until July 15 to provide requested additional information to support a pending OIC. In addition, the IRS will not close any pending OIC request before July 15, 2020, without the taxpayer's consent.  
  • OIC Payments - Taxpayers have the option of suspending all payments on accepted OICs until July 15, 2020, although by law interest will continue to accrue on any unpaid balances.
  • Delinquent Return Filings - The IRS will not default an OIC for those taxpayers who are delinquent in filing their tax return for tax year 2018. However, taxpayers should file any delinquent 2018 return (and their 2019 return) on or before July 15, 2020.  
  • New OIC Applications - The IRS reminds people facing a liability exceeding their net worth that the OIC process is designed to resolve outstanding tax liabilities by providing a "Fresh Start." Further information is available at IRS.gov

Non-Filers - The IRS reminds people who have not filed their return for tax years before 2019 that they should file their delinquent returns. More than 1 million households that haven't filed tax returns during the last three years are actually owed refunds; they still have time to claim these refunds. Many should consider contacting a tax professional to consider various available options since the time to receive such refunds is limited by statute. Once delinquent returns have been filed, taxpayers with a tax liability should consider taking the opportunity to resolve any outstanding liabilities by entering into an Installment Agreement or an Offer in Compromise with the IRS to obtain a "Fresh Start." See IRS.gov for further information.
Field Collection Activities - Liens and levies (including any seizures of a personal residence) initiated by field revenue officers will be suspended during this period. However, field revenue officers will continue to pursue high-income non-filers and perform other similar activities where warranted.
Automated Liens and Levies - New automatic, systemic liens and levies will be suspended during this period.
Passport Certifications to the State Department - IRS will suspend new certifications to the Department of State for taxpayers who are "seriously delinquent" during this period. These taxpayers are encouraged to submit a request for an Installment Agreement or, if applicable, an OIC during this period. Certification prevents taxpayers from receiving or renewing passports.
Private Debt Collection - New delinquent accounts will not be forwarded by the IRS to private collection agencies to work during this period.
Field, Office and Correspondence Audits - During this period, the IRS will generally not start new field, office and correspondence examinations. We will continue to work refund claims where possible, without in-person contact. However, the IRS may start new examinations where deemed necessary to protect the government's interest in preserving the applicable statute of limitations.

  • In-Person Meetings -  In-person meetings regarding current field, office and correspondence examinations will be suspended. Even though IRS examiners will not hold in-person meetings, they will continue their examinations remotely, where possible. To facilitate the progress of open examinations, taxpayers are encouraged to respond to any requests for information they already have received - or may receive - on all examination activity during this period if they are able to do so.  
  • Unique Situations - Particularly for some corporate and business taxpayers, the IRS understands that there may be instances where the taxpayers desire to begin an examination while people and records are available and respective staffs have capacity. In those instances when it's in the best interest of both parties and appropriate personnel are available, the IRS may initiate activities to move forward with an examination -- understanding that COVID-19 developments could later reduce activities for an agreed period.
  • General Requests for Information - In addition to compliance activities and examinations, the IRS encourages taxpayers to respond to any other IRS correspondence requesting additional information during this time if possible.   

Earned Income Tax Credit and Wage Verification Reviews - Taxpayers have until July 15, 2020, to respond to the IRS to verify that they qualify for the Earned Income Tax Credit or to verify their income. These taxpayers are encouraged to exercise their best efforts to obtain and submit all requested information, and if unable to do so, please reach out to the IRS indicating the reason such information is not available. Until July 15, 2020, the IRS will not deny these credits for a failure to provide requested information.
Independent Office of Appeals - Appeals employees will continue to work their cases. Although Appeals is not currently holding in-person conferences with taxpayers, conferences may be held over the telephone or by videoconference. Taxpayers are encouraged to promptly respond to any outstanding requests for information for all cases in the Independent Office of Appeals.
Statute of Limitations - The IRS will continue to take steps where necessary to protect all applicable statutes of limitations. In instances where statute expirations might be jeopardized during this period, taxpayers are encouraged to cooperate in extending such statutes. Otherwise, the IRS will issue Notices of Deficiency and pursue other similar actions to protect the interests of the government in preserving such statutes. Where a statutory period is not set to expire during 2020, the IRS is unlikely to pursue the foregoing actions until at least July 15, 2020.
Practitioner Priority Service - Practitioners are reminded that, depending on staffing levels and allocations going forward, there may be more significant wait times for the PPS. The IRS will continue to monitor this as situations develop.
"The IRS will continue to review and, where appropriate, modify or expand the People First Initiative as we continue reviewing our programs and receive feedback from others," Rettig said. "We are committed to helping people get through this period, and our employees will remain focused on these and other helpful efforts in the days and weeks ahead. I ask for your personal support, your understanding – and your patience – as we navigate our way forward together. Stay safe and take care of your families, friends and others."  IR-2020-59, www.irs.govMarch 25, 2020.

 "Ain’t no man can avoid being born average, but there ain’t no man got to be common."

“There are only two ways to live your life. One is as though nothing is a miracle. The other is as though everything is a miracle.” - Albert Einstein
On this day in 1792, the U.S. dollar is introduced.

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