IRS Clarifies Computation of Plan Loans Available to Participants
A memorandum suggests there are two ways an employer can determine the highest outstanding loan balance in the past year when calculating the amount of an additional loan a participant can take from her DC plan.
In a memorandum to Employee Plans (EP) examination employees, the Internal Revenue Service (IRS) has clarified there are two ways an employer can determine the highest outstanding loan balance in the past year when calculating the amount of an additional loan a participant can take from her defined contribution (DC) plan.
The IRS notes that in general, Internal Revenue Code (IRC) § 72(p)(1) provides that a loan from a plan is a distribution to the participant. IRC § 72(p)(2)(A) excepts a loan that does not exceed the lesser of:
$50,000, reduced by any excess of the highest outstanding balance of loans during the 1-year period ending on the day before the date on which such loan was made, over the outstanding balance of loans on the date on which such loan was made; or
the greater of half of the present value of the vested accrued benefit, or $10,000.
Under IRC § 72(p)(2)(A)(i), if the initial loan is less than $50,000, the participant generally may borrow another loan (if the plan allows) within a year if the aggregate amount does not exceed $50,000. The $50,000 is reduced by the highest outstanding balance of loans during the one-year period ending the day before the second loan, in turn reduced by the outstanding balance on the date of the second loan.
The agency gives an example: A participant borrowed $30,000 in February which was fully repaid in April, and $20,000 in May which was fully repaid in July, before applying for a third loan in December. The plan may determine that no further loan would be available, since $30,000 + $20,000 = $50,000. Alternatively, the plan may identify “the highest outstanding balance” as $30,000, and permit the third loan in the amount of $20,000. This assumes that to meet other IRC § 72(p)(2) requirements, the participant has a vested accrued benefit of more than $100,000, and the loan is repayable in five years and requires substantially level amortization.
“At this time, the law does not clearly preclude either computation of the highest outstanding loan balance in the above example,” the IRS says.
Disney Plan Fiduciaries Defeat Investment Option Challenge
Plaintiffs unsuccessfully alleged plan fiduciaries should have known that an investment option had the “clear indicia of a growth stock,” and did not meet purported investing criteria of seeking out value stocks.
The U.S. District Court for the Central District of
California has again ruled in an Employee Retirement Income Security Act (ERISA)
lawsuit targeting the Walt Disney Company—concluding a motion to dismiss from the
company should be granted.
In this instance the court, pursuant to Rule 78 of the
Federal Rules of Civil Procedure and Local Rule 7-15, moved on the matter without
oral argument, ruling that plan fiduciaries cannot be held liable for losses
suffered by participants who had exposure to Valeant Pharmaceuticals stock at
the time of that company’s dramatic fall from grace.
Background information included in the text of the district
court’s decision states that the Walt Disney Company offers a number of
retirement benefits to its employees, including a wide choice of retirement savings
and investment vehicles. Among these is the plan including the investment option
at question here, “which is a participant-directed individual account plan, meaning
that individuals investing in the plan have an individual account which pays
benefits based solely on the amount contributed by the participant.”
Important to note, “plan participants are themselves
required to select the specific funds into which their individual contributions
are invested … Plan participants are offered a choice of 26 different funds.” As
a result, case documents suggest, plan participants can allocate their individual
plan accounts among a number of investment options, reflecting a broad range of
investments styles and risk profiles.
One of the investment options included in the plan is the
Sequoia Fund, a mutual fund managed by Ruane, Cunniff & Goldfarb. As the new
decision lays out, “Plaintiffs allege that the Sequoia Fund purports to be a
value fund … Plan participants have invested more than $500 million in the
Sequoia Fund, causing investments in the fund to account for approximately 12%
of all plan assets not invested in Disney itself.”
Plaintiffs suggested that the Sequoia Fund eventually moved
up to 25% of its net assets into investments in Valeant, leading to an
unfortunate chain of events when Valeant’s accounting practices and investment
strategies were called into question by state and federal regulators. In August
2015, Valeant stock closed at $262 per share, representing a trade value that
was 98-times higher than its earnings. By November 17, 2015, Valeant stock
precipitously declined to less than $70 a share, representing a loss of more than $65 billion in market value.
Because their initial arguments failed (that the plan fiduciaries should have known that a problem was brewing at Valeant and should therefore have moved to drop the stock), plaintiffs in their second amended complaint instead allege that plan fiduciaries should have known
that Valeant had the “clear indicia of a growth stock,” and did not meet the
Sequoia Fund’s purported investing criteria of seeking out value stocks. Thus
they argue that plan fiduciaries should have moved, even before the Valeant accounting
fiasco and subsequent losses, to vacate the plan’s investment in the fund, according to their various
duties of prudence and loyalty under ERISA.
NEXT: Failed claims
of fiduciary wrongdoing
Against this backstory, plaintiffs’ second consolidated complaint
alleges two claims for relief. In the first claim, plaintiffs allege that the plan
breached its duties under ERISA to prudently manage the plan by offering the
Sequoia Fund as an investment vehicle. The second claim, which is derivative of
the first claim, seeks to impose liability against both the plan and individual
members of the plan committee for “co-fiduciary liability pursuant to 29 U.S.C.
§ 1105(a).”
In short, plaintiffs posit that “a reasonably prudent
fiduciary in the plan’s position would have removed the Sequoia Fund as an
investment option because it invested in a growth stock, despite holding itself
out as a value investor.” Specifically, plaintiffs allege that “a reasonably
prudent fiduciary would have carefully monitored the Sequoia Fund to ensure
that it adhered to its purported investment strategy as described to investors
in general and to plan participants in particular.”
Defendants contend that the classification between “growth”
and “value” investment is immaterial to determining whether plan fiduciaries
acted prudently by continuing to offer the Sequoia Fund as an investment option
to participants. And beyond this, the parties dispute whether the
Sequoia Fund even held itself out to be a growth or a value investor in the first
place.
The court notes that “some of the arguments
advanced by the parties purporting to show whether the Sequoia Fund was a value
or growth investor border on being frivolous.”
For example, “plaintiffs assert that when a Sequoia Fund
portfolio manager was asked if he intended to keep or reduce the fund’s
position in Valeant, his answer that ‘we believe Valeant will continue to grow …
and should do quite well,’ was a representation from the fund to investors that
Sequoia was a growth play.” Similarly, the defendants claim that the Sequoia
Fund “demonstrated its growth-orientation by announcing a focus on purchasing
stocks that ‘have the potential for growth.’”
As the court explains, in reality “investors simply use
these terms to describe their investments; not to also convey their overall
investment strategy.” An investor “purchases a stock because he believes its
share price will grow, and thus represents a good value at the time of
purchase. It follows that, frequently, no deeper meaning can be ascribed to the
use of these terms.”
In the end, the court agrees with the defendants, along
these lines: “There is no authority to support the proposition that the ‘growth’
or ‘value’ styles of portfolio management are preferable to one another, or, as
is more relevant here, would constitute a breach of fiduciary duty if pursued
as an investment prerogative.”
The court explains that the “more relevant inquiry for
determining whether the plan breached its fiduciary duty is to examine what
representations the plan made to its participants about the Sequoia Fund, and
whether the fund acted in a way so inconsistent with that description that a
reasonably prudent investor would have discontinued offering the Sequoia Fund
as an investment vehicle. Plaintiffs have failed to identify a single instance
of the plan itself classifying the Sequoia Fund as a growth or value investor.”
This is latest in a string of victories for Disney in the
potentially costly piece of ERISA litigation. An initial version of the
complaint also argued fiduciaries should have dropped the fund from the plan
investment menu because one of its underlying investments showed signs of
trouble—without
success.