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Commentary

Understanding 401K Pension Law

General Introduction
The office of Employee Plans (EP) under the Tax Exempt & Government Entities (TE/GE) operating division of the Internal Revenue Service helps retirement plan sponsors, plan participants, and practitioners working in the retirement benefits arena understand and comply with the pension law.

Historical Background
On September 2, 1974, President Ford signed into law the Employee Retirement Income Security Act of 1974, Public Law 93-406, 93d Cong. 1st Sess. (1974), 1974-3 C.B. 1, (ERISA). The Act completely revised the legal framework of the qualified pension plan as it had previously existed. The most significant innovations of ERISA concerned minimum participation and vesting standards and the manner in which benefits were paid with some protection extending to the surviving spouse of the plan participants. In addition, the Act imposed upon all pension plans certain minimum funding requirements.

401k Tip
According to Southern California-based (401k) Enginuity (www.401kenginuity.com), twenty-year veteran in developing and running 401(k) administration and 401(k) software and recordkeeping systems, the Internet will be the primary delivery system for 401(k)s by 2007. Many web-based 401(k) plans will run on administration and recordkeeping platforms that plan providers will outsource to 401k specialists and 401k Application Service Providers (ASP).

The advantages of web-based online 401(k) plans are obvious to today's workers, and include use conveniences, real-time monitoring and reporting, and instant re-allocation of their retirement assets. The internet has also dramatically reduce the cost of 401(k) plan administration, saving plan sponsor 50% or more in ongoing fees and costs when compared to the older traditional labor-intensive plans. Outsourcing of 401(k) functions by plan providers will extend the trend towards lower cost, high-quality 401(k) products.

401(k) plan providers of all types, financial institutions including banks, insurance companies, brokerages, mutual fund companies, credit unions, and third-party administrators, are now actively outsourcing 401(k) administration and recordkeeping tasks to 401(k) ASPs --- vendors such as 401k Enginuity, whose sole function is to maintain, updated and supervise software-based 401(k) administration and recordkeeping systems on behalf of plan providers. 401(k) ASP vendors are responsible for all routine day-to-day 401(k) recordkeeping and administration functions, thus allowing the plan providers to reduce internal staff, eliminate the expense and complications of licensing, housing and running hardware and 401(k) administration software in-house. Plan providers can refocus and concentrate their efforts on to the needs of their plan sponsors and plan participants, and rely upon the outsourced ASP 401(k) vendor for the recordkeeping and technical "backbone" supporting providers' Internet-based plans. It is inevitable that some of this 401(k) outsourcing to ASPs will include secondary outsourcing of certain non-critical low-level routine day-to-day tasks to non-US locations, where labor costs are less yet the expertise is abundant.

Administrative Responsibility for Retirement Plans

Under ERISA, jurisdiction over employee benefit plans was divided among the Internal Revenue Service (IRS), the Department of Labor (DOL) and the Pension Benefit Guaranty Corporation (PBGC).

The responsibility of the IRS centers on plans covered by Internal Revenue Code (IRC) section 401(a), and includes pension, profit-sharing, and stock-bonus plans. The DOL shares some responsibility in this area, but primarily from the perspective of fiduciary responsibility and prohibited transactions. DOL is also responsible for such plans as health and welfare plans, legal aid plans and other plans that are not designed to provide retirement benefits or the deferral of income.

The PBGC is a government corporation created by ERISA that functions as insurer of a minimum guaranteed benefit for certain pension plans. Although jurisdiction is divided among the agencies, the Act requires that they coordinate their activities. This activity most commonly occurs between the IRS and DOL due to the overlap in the nature of their responsibilities.

What We Do
The pension law provides significant tax benefits for sponsors of certain retirement plans (such as 401(k) plans) and the employees that participate in them. Our EP Examinations activities promote voluntary compliance by analyzing operational features of retirement plans. A centralized examination case selection and review process is used to enhance consistency of enforcement activities and to focus resources on the areas of highest noncompliance. Through our Customer Education & Outreach office, we provide services and information about retirement plan requirements. Our services under Rulings and Agreements are designed to help customers understand and comply with the pension law, and assist customers in correcting mistakes that may occur when administering the plan. These services help conserve plan benefits until an employee's retirement, and help preserve the tax benefits associated with these plans. Additional information regarding our unique services is presented in our online brochure, Publication 3636.

Statistical Information on Retirement Plans

Tax Exempt/Employee Plans Statistics - Employee Plans
IRS statistics on determinations, examinations and annual returns filed.

Findings from the Contingent Work Supplement to the February, 1999 Current Population Survey
DOL statistics on employer sponsorship and coverage among wage and salary workers under pension plans.

Private Pension Plan Bulletin - Abstract of 1998 Form 5500 Annual Reports
DOL statistics on plans, participants, assets, income and expenses based upon 1998 Form 5500 filings.

PBGC 2002 Annual Report
PBGC statistics on defined benefit plans, including multiemployer plans.

Pension Insurance Data Book 2002
Detailed statistics on PBGC program operations and benefit protection.

According to HR Investment Consultants in Towson, MD, publisher of the "401k Provider Directory, "the cost of running a 401k plan with 25 participants and $750,000 in assets can range from as little as $6,750 per year to as much as $20,000, depending on which 401k vendor you select. (Sources: Nation's Business, September 1998, Myers, Randy "Your 401k Plan May Cost You Too Much." Business Week Online, July 2000, Brenner, Lynn "A Wealth of Choices."). By comparison, a 401(k) Easy or Easy Online system costs only $995 pear year for a 25-person plan---a savings of between 60% and 80% in plan administration fees.

401k Fee Disclosure has been Murky

In the 401(k) provider industry, expense fee disclosure, whether to plan participants or plan sponsors, has been a notoriously murky affair. The impact of excessive hidden fees on plan participants' retirement accounts is very significant over time. As example, consider a hypothetical 401(k) investment, such as a mutual fund, with deducted fees of 1.3 percent versus one with fees of just .02 percent. Applied to an initial $25,000 investment returning 10 percent, and compounded over 20 years, the difference between the "low-fee" investment and the excessively "high-fee" investment adds up to $31, 701

Policymakers and plan sponsors seeking to structure well managed 401(k)s for their aging workforces are beginning to acknowledge the negative impact significant hidden fees has on eroding pension accumulations for retirement. What might appear to be a small difference in pension management fees can result in substantial differences in eventual retirement benefits.

The number of companies without 401(k) plans is growing, too - due to a less-than-traditional force: vendors who in the past have serviced smaller businesses are finding it unprofitable and are abandoning these clients. According to an article by Harris Collingwood and Janice Koch ("Squeezed Out," in Worth Magazine, Dec/Jan 1999), "All over the country, 401(k) vendors - the companies that perform investment management, record keeping, employee education, and regulatory-compliance testing - are firing their customers. . What this means is that small and midsize companies are being forced, like it or not, back into the 401(k) marketplace." These companies feel betrayed by the large 401(k) vendors and are frustrated in their search for a 401(k) plan that their employees will like and that they can afford.

Mutual fund companies make their money by acquiring, holding, and managing inevitable assets in their various fund portfolios. In some cases, the bundled 401(k) administration may offer to small businesses at a loss as a device for attracting and holding new assets, on the assumption that 401(k) investing tends to be long-term, giving the mutual fund company many years to collect management fees

According to HR Investment Consultants in Towson, MD, publisher of the "401k Provider Directory, "the cost of running a 401k plan with 25 participants and $750,000 in assets can range from as little as $6,750 per year to as much as $20,000, depending on which 401k vendor you select. (Sources: Nation's Business, September 1998, Myers, Randy "Your 401k Plan May Cost You Too Much." Business Week Online, July 2000, Brenner, Lynn "A Wealth of Choices."). By comparison, a 401(k) Easy or Easy Online system costs only $995 pear year for a 25-person plan---a savings of between 60% and 80% in plan administration fees 401(k) plans must be sponsored by an employer. Millions of American workers can't take advantage of the 401(k)'s many attractive attributes because, for one reason or another - typically high plan costs, plan inflexibility, and/or prohibitive minimum participation standards - their employers do not sponsor a plan. In particular, very small, small, and medium-sized companies have found sponsorship difficult if not impossible. Some 89% of very small companies (10-50 employees), 72% of small companies (50 - 100 employees), and 66% of medium-sized companies (100 - 250 employees) do not have 401(k) plans (Census Bureau figures). These figures do not include the companies that have fewer than 10 employees, what might be called "micro" companies.

The tax deferral of 401k has a huge compounding effect: $150 per month put into a typical taxable savings account paying 8% annual interest will grow to $42,034 by the end of 20 years (assuming a combined federal and state personal income tax rate of 34%). In a 401(k), however, the same deposits earning the same rate of return during the same 20 years will yield $88,353 . Even if that amount is taxed at the 34% rate when the money is withdrawn from the plan, which is unlikely if the participant is retired, the 401(k) participant will walk away with more than $16,000 compared to the equivalent non-401(k) investment return.

401(k) plans have the highest annual contribution ceiling of any of the tax-deferred defined contribution savings programs (IRAs, SEPs, etc.). More money contributed equals more money earning money, equals more money in the account 20 years later. Add to this earning potential the convenience of contributions made through automatic payroll deductions and it's easy to see why 401(k)s are so popular.

The average 401K account balance at the end of 1998 was $47,000 per participant, up 26% from 1996, according to the ICI and the Employee Benefit Research Institute. On average, 78% of eligible employees will participate in a 401(k) plan if one is made available, with the number of participants growing from 19.5 million in 1990 to 53.2 million in 2000. Some of the increase in participation rates is due to the introduction of "negative election," which allows an employer to automatically enroll employees into the 401(k) when they meet the plan's eligibility requirements. The negative election deferral rate and investment(s) must be defined ahead of time, and the employee must be immediately notified of his or her participation status. Automatic enrollment programs are sanctioned by the IRS under ERISA as long as the employee has ample ability to cease enrollment at will

A constraint on 401(k) growth is the fact that 401(k) plans must be sponsored by an employer and contributions must be subtracted from the employee's pay within the payroll process, before income tax withholding is calculated. Due largely to misinformation about the complexity of running a 401(k), coupled with a general fear of the IRS and the Department of Labor (both of which have regulatory power over the plans), many employers have excluded this popular benefit from their employee benefits package. This is especially true of very small (including micro), small, and medium-sized companies

Many small and medium-sized companies that have 401(k)s have a bleak future: many are being canceled because they are not profitable enough a service for vendors to maintain; in other cases, service is not being canceled but the level of service is so disproportionate to the high fees being charged that employers themselves must pull out or endure the aggravation of continually feeling they are being overcharged. The company estimates there are more than 400,000 very small, small, and medium-sized companies that (a) have no plan, (b) have had their plan canceled or have canceled their plan, or (c) have a plan they are unsatisfied with.

Traditional 401(k) plan vendors did not think much about approaching smaller companies until recently, and did so then only because they recognized that the larger-company market was pretty well saturated. When they did turn their attention to the smaller and mid-sized plan market, they were well prepared with a library of useful educational materials for potential and actual plan participants. Participation is participation, after all, whether it is in a plan with 50 participants or 50,000.

Unfortunately, however, these vendors were not equally well prepared to service the needs of the smaller companies: the plans they designed and the packages they offer are not always appropriate in price, substance, or style, and their pamphlets and publications are often too dry, legalistic, and expensive. Perhaps it is because most of these vendors are large companies themselves that they have difficulty designing 401(k) plans that embody the entrepreneurial, "do-it-yourself" spirit so prevalent in many small and medium-sized companies Internet penetration and usage by small businesses is a key component of 401(k). According to a survey conducted by IDC, Internet usage by small businesses reached 62% in 1998. Total small business spending on Internet related applications is expected to increase from $6.6 billion in 1998 to 418.2 billion by 2002, yielding an annual growth rate of 45%.

401(k) plans must be sponsored by an employer. Millions of American workers can't take advantage of the 401(k)'s many attractive attributes because, for one reason or another - typically high plan costs, plan inflexibility, and/or prohibitive minimum participation standards - their employers do not sponsor a plan. In particular, very small, small, and medium-sized companies have found sponsorship difficult if not impossible. Some 89% of very small companies (10-50 employees), 72% of small companies (50 - 100 employees), and 66% of medium-sized companies (100 - 250 employees) do not have 401(k) plans (Census Bureau figures). These figures do not include the companies that have fewer than 10 employees, what might be called "micro" companies

Internet penetration and usage by small businesses is a key component of 401(k). According to a survey conducted by IDC, Internet usage by small businesses reached 62% in 1998. Total small business spending on Internet related applications is expected to increase from $6.6 billion in 1998 to 418.2 billion by 2002, yielding an annual growth rate of 45%.

Recordkeeping firms represent a small and possibly decreasing fraction of the available market. These firms tend to be local and regional, and although they can maintain the "human touch," they cannot compete effectively with the bundled plans offered by mutual fund companies.

Many small and medium-sized companies that have 401(k)s have a bleak future: many are being canceled because they are not profitable enough a service for vendors to maintain; in other cases, service is not being canceled but the level of service is so disproportionate to the high fees being charged that employers themselves must pull out or endure the aggravation of continually feeling they are being overcharged. The company estimates there are more than 400,000 very small, small, and medium-sized companies that (a) have no plan, (b) have had their plan canceled or have canceled their plan, or (c) have a plan they are unsatisfied with

401(k) plans are arguably the best government-sanctioned, tax-deferred retirement savings opportunities in the United States; their numbers have grown commensurably since their institution by Congress in 1978. One estimate, by CHALK 401(k) Advisory Board, Inc., places the number of qualified 401(k) plans in 1997 (the last year surveyed) at 225,000, and the number of participants in those plans at approximately 28 million; the Investment Company Institute (ICI) estimates 36.7 million participants in 1998. New plans continue to grow in number at an annual rate of more than 14% (U.S. Department of Labor).

The average 401K account balance at the end of 1998 was $47,000 per participant, up 26% from 1996, according to the ICI and the Employee Benefit Research Institute. On average, 78% of eligible employees will participate in a 401(k) plan if one is made available, with the number of participants growing from 19.5 million in 1990 to 53.2 million in 2000. Some of the increase in participation rates is due to the introduction of "negative election," which allows an employer to automatically enroll employees into the 401(k) when they meet the plan's eligibility requirements. The negative election deferral rate and investment(s) must be defined ahead of time, and the employee must be immediately notified of his or her participation status. Automatic enrollment programs are sanctioned by the IRS under ERISA as long as the employee has ample ability to cease enrollment at will.

A comprehensive 401(k) administration software system should contain the following: Plan-customized forms and documents needed by the employee-participants and the plan administrator (enrollment forms, loan applications, asset liquidation authorizations, etc.). All relevant processing functions take into account the hardwired employer choices. Current IRS regulations are embedded in the software, too. The system is updated each year to reflect any regulatory or other changes; clients receive updated copies of both software and companion materials upon renewal.

Additional non-profit websites that include relevant unbiased information about 401k plans include: www.401kplandocuments.com and www.401k-recordkeepers.com

According to HR Investment Consultants in Towson, MD, publisher of the "401k Provider Directory, "the cost of running a 401k plan with 25 participants and $750,000 in assets can range from as little as $6,750 per year to as much as $20,000, depending on which 401k vendor you select. (Sources: Nation's Business, September 1998, Myers, Randy "Your 401k Plan May Cost You Too Much." Business Week Online, July 2000, Brenner, Lynn "A Wealth of Choices."). By comparison, a 401(k) Easy or Easy Online system costs only $995 pear year for a 25-person plan---a savings of between 60% and 80% in plan administration fees.

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