Thursday, June 2, 2016

The Easy Benefits Answer May be Compliance

I ran into an interesting situation the other day. I can't disclose enough of the details for reasons of confidentiality to use that as a case study. The point of the exercise, though, was that a client was looking for a loophole to escape the claws of what it was told is a horrible provision of the Internal Revenue Code. After analysis, however, I was able to determine that the loophole, as they put it, just doesn't work for them.

There, was a better and simpler solution, though. Just follow the law (without regard to the loophole).

While I can't use this week's example, it harkens back to the late 80s and early 90s (yes, I was doing similar work even then). Readers in their 50s or older may recall that the first Tax Reform Act of 1986 (TRA86) regulations to come out were the proposed 401(l) regulations that graced the pages of the Federal Register in late 1988. Lawyers, consultants, and actuaries (me among them) raced to digest those regulations and to be the first to tell their clients and prospects how to comply.

I digress for a moment to explain why this could have been so important. 401(l) explained how to integrate certain qualified retirement plans with Social Security in order for those plans to be exempt from the general test for nondiscrimination under Code Section 401(a)(4). Prior to TRA86, permissible integration was determined under Revenue Ruling 71-446, and whether or not a group of plans was discriminatory in nature was determined under the comparability rules of Revenue Ruling 81-202. What was different, though, was that if you had an integrated plan and you couldn't prove that it was properly integrated per RR 71-446, you risked your qualified status. Under TRA86, proper integration was more of a convenience.

Returning to the main plot, we all rushed out to our clients and many with defined benefit (DB) plans redesigned them to be properly integrated making them safe harbor. Those clients then needed to deal with transition rules under Notice 88-131. Some with good memories will remember racking our brains over choices between Options II and III and Alternative II-D.

Other sponsors made a different decision. They chose to not redesign their plans. That meant that they had to comply with the general test for nondiscrimination.

Well, for most, that turned out not to be such a big deal. It meant that every year or two years or three years, they had to engage their actuary to perform a test that was usually pretty easy to pass. What they got in return was a lack of disruption. For them, the easiest answer was not to find a way out of testing, but simply to pass a test that they could easily pass.

Returning finally to my initial point from this post, the client in question was trying to get out of a rule that counsel had told them was pretty horrible. And, it's true, it can be a horrible rule. But, in this specific case, the compliance burden associated with this rule will be minimal.

And, that means that what is perhaps the optimal solution will be simple.

Sometimes, the right answer has nothing to do with loopholes. Sometimes, the easiest (and best) answer is compliance.