Barry’s Pickings Online: A Default Payout Solution

Michael Barry, president of the Plan Advisory Services Group, discusses the fundamental principles of the 401(k) system, defaults and plan leakage.

PS-Portrait-Article-Barry-JCiardiello.jpgArt by J.CiardielloOne of the things we are learning, as we strive to understand what “retirement policy” looks like in the 21st century, is that not everyone’s retirement income needs and capacities are the same. A variety of factors—different for every worker—affect that calculation.

Consider “family.” A worker/couple who has children will, on the one hand, have competing demands for available income—education and child raising expenses versus retirement savings—limiting her/their capacity to save. The USDA estimates the cost of raising one child at $233,610. That will put a strain on anyone’s ability to save, say, 10% to 15% of income for retirement. Think about what that strain is if you’re raising three or four children. On the other hand, even in an age in which personal autonomy is one of our highest values, the existence of family—and, particularly, working children—can provide a vital Plan B: in the worst case, you can move in with your kids. Lots of people do it. Obviously, workers/savers without children/family don’t have child-raising costs, but they also don’t have that emergency Plan B. They really need to save.

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Also, some workers may have more outside resources than others: e.g., some people own their own homes; some don’t. Some workers have more flexibility than others: some people may, at retirement, be able to move to a low-cost of living community, dramatically reducing their income needs. For others, that is not an option. Some workers may have health issues that affect what they will need in retirement—on the one hand, (perhaps) larger health expenses, on the other (perhaps) a shortened life expectancy.

And, finally, some humans may simply have different views of time and life. Some may value time in their younger years more than time in their older years. I realize this notion is a controversial: conventional wisdom is that humans “hyperbolically discount” future values. But even accepting that theory, there is room for differing preferences. If you really like mountain climbing, you’re probably going to want to do it while you’re younger. For others, the goal of total financial independence and (perhaps) an early retirement is a more important value.

One of the features of 401(k) plans is that they allow different workers to make different choices about saving (and spending) levels. One worker can save a lot. Another can save nothing. This flexibility is one of the two major reasons why 401(k) plans have, for most sponsors and workers, replaced defined benefit plans, with their rigid, one size fits all design. (The other major reason is 401(k) plans’ greater transparency.)

Nevertheless, the consensus—with which I agree—is that humans have a natural bias towards spending rather than saving and thus should be encouraged to save. I’m prepared to accept some level of coercion to achieve that goal—e.g., the current levels of Social Security taxation/benefits. Beyond that, I favor non-coercive encouragement, the most effective and efficient version of which is (again, in my opinion) a “nudge”—defaulting individuals into some rough version of adequate savings, allowing those with a strong preference for a different (and conceivably lower) savings rate to affirmatively elect out of the default.

NEXT: 401(k) plan flexibility and “leakage”

And so we come to the issue of “leakage.” I find this term problematic because it covers two very different issues that (I think) should be addressed in opposite ways. Generally, retirement savings “leakage” is understood to include (1) loans, (2) hardship withdrawals and (3) cashouts at termination of employment. Loans and hardship withdrawals are, I believe, a 401(k) plan feature, not a bug. They are part of the flexibility these plans provide, allowing cash-strained participants to take a risk on making plan contributions, knowing that if they need to access their savings they can get it.

Cashouts are another matter. They are, in effect, a “loophole” in our system of defaults. We default workers into saving (via automatic enrollment), but we don’t default them into leaving their savings in the plan when they terminate. That is actually a huge problem. As the Employee Benefit Research Institute has shown, “cashouts at job change have a much more serious impact on 401(k) savings than either plan loan defaults or hardship withdrawals. … 20% of those in the lowest-income quartile who would otherwise have enough savings to achieve a real replacement rate threshold of 80% would fall short due to these cashouts at job change.”

Efforts to address this issue, e.g., by encouraging sponsors to allow terminating employees to leave their money in their “old” employer’s plan and/or the development of a clearinghouse that can be used to implement a money-follows-the-employee regime, represent one of the most important retirement policy initiatives confronting us at this time. And, I would add a rule that mandated default to one of those two alternatives—money-stays-in-the-plan or money-follows-the-employee.

I spent all that space, at the beginning of this article, discussing the importance of flexibility in the 401(k) system, to demonstrate the importance to that system of choice within a context that encourages responsible retirement savings. We have learned—from 40 years of experience—that defaults do the best job of respecting both of those principles.

Thus we have made—through the use of defaults—a lot of progress towards getting employees to save enough (via automatic enrollment) and to invest their savings efficiently (through default investment in target-date funds). We need a robust default solution at payout.

Michael Barry is president of the Plan Advisory Services Group, a consulting group that helps financial services­ corporations with the regulatory issues facing their plan sponsor clients. He has 40 years’ experience in the benefits field, in law and consulting firms, and blogs regularly http://moneyvstime.com/ about retirement plan and policy issues.    

This feature is to provide general information only, does not constitute legal or tax advice, and cannot be used or substituted for legal or tax advice. Any opinions of the author do not necessarily reflect the stance of Asset International or its affiliates.

(b)lines Ask the Experts – Why the Fiduciary Rule Applies to IRAs but Not Non-ERISA 403(b)s

“I know that the applicability date of the Department of Labor’s (DOL)'s  final fiduciary rule is on hold, but presuming it becomes effective, why does it apply to IRAs?

“Aren’t IRAs exempt from the Employee Retirement Income Security Act (ERISA), and thus any of ERISA’s fiduciary provisions? And what about the many 403(b) plans that are also not subject to ERISA? If the fiduciary does not apply to those plans, why would it apply to IRAs?” 

David Levine and David Powell, with Groom Law Group, and Michael A. Webb, vice president, Retirement Plan Services, Cammack Retirement Group, answer: 

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Excellent questions! Let’s address non-ERISA 403(b) plans first, as such plans are specifically exempted from the final fiduciary rule by the following language:

“Code section 403(b) contracts and custodial accounts purchased or provided under a program that is either a ‘governmental plan’ under section 3(32) of ERISA or a non-electing ‘church plan’ under section 3(33) of ERISA are not subject to the final rule. Similarly, the Department in 1979 issued a ‘safe harbor’ regulation at 29 CFR 2510.3–2(f) which states that a program for the purchase of annuity contracts or custodial accounts in accordance with section 403(b) of the Code and funded solely through salary reduction agreements or agreements to forego an increase in salary are not ‘established or maintained’ by an employer under section 3(2) of the Act, and, therefore, are not employee pension benefit plans that are subject to Title I, provided that certain factors are present. Those non-Title I 403(b) plans would also be outside the scope of the final rule.” 

Thus, any 403(b) plan that is not subject to ERISA is exempt from the final fiduciary rule. However, there are many 403(b) plans of private, tax-exempt employers that are subject to ERISA, and would thus be subject to the final fiduciary rule.

As for IRAs, you are correct that they are generally exempt from ERISA provisions. However, IRAs are subject to the Tax Code; and Section 4975 of the Internal Revenue Code address prohibited transactions between IRAs an “disqualified persons” including fiduciaries. The section then goes on to define to define a fiduciary to include any person designated as a fiduciary under ERISA. It is this basis that the DOL is using to affirm that its definition of what constitutes a fiduciary applies to Section 4975 of the Code as well. In addition, the DOL has specific authority over Code Section 4975 through Reorganization Plan No. 4, an executive order issued in 1978. Of course, enforcement of these prohibited transaction rules under the Tax Code would be the responsibility of the Internal Revenue Service (IRS), and not the DOL. It should be noted that 403(b) plans are specifically exempt from Code Section 4975, which partially explains the differing treatment of IRAs and non-ERISA 403(b) plans under the final fiduciary rule.

And, of course, as you stated in your question, the applicability date of the final fiduciary rule has been delayed, so none of its provisions apply as yet.

 

NOTE: This feature is to provide general information only, does not constitute legal advice, and cannot be used or substituted for legal or tax advice.  

Do YOU have a question for the Experts? If so, we would love to hear from you! Simply forward your question to Rebecca.Moore@strategic-i.com with Subject: Ask the Experts, and the Experts will do their best to answer your question in a future Ask the Experts column.
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