Crypto in Retirement Plans? Come on…..

  They say that if you follow the history of baseball that it reflects what’s happening in America.  It’s funny, no one ever says anything like that about the retirement plan industry, but then again, most people don’t even know that retirement plans are an industry! I can make a case that retirement plans do, in fact, have a broader tie in to what’s happening in the country at large. Today, we have more women and minorities working in our space and many industry groups have formed to promote equality in our industry. Similarly, just as Environmental and Social change have become forefront, ESG funds have also become topical in retirement plans. So, like baseball, retirement plans can also be used as a mirror reflection of what’s happening in the country around us.

 

If the above is my thesis, the next part is another example which is Cryptocurrency (Crypto) in retirement plans???  So, yes, just as Bitcoin and all the other varieties are becoming more and more mainstream, naturally, people who view these as investable opportunities want them to be available where their money is, which for a lot of people is in retirement plans. Within the last few years, there has been a small number of very noisy providers responding to this demand which has now “forced” the Employee Benefits Security Administration (EBSA), an agency inside of the Department of Labor to take a position on Crypto as a potential investment for retirement plans. The result, Compliance Assistance Release 2022-01 in March of this year.

The reader can read all about it in the above link.  If we had to summarize what we see in this C.A.R. it’s basically a cautionary release. There’s not a lot of new ideas in there. EBSA Deputy Assistant Secretary for Program Operations, Tim Hauser has stated publicly that the release is more about the way these types of investments are being marketed, “I mean the thing that that most concerned us was, you know, fairly aggressive marketing...…of these investments to 401K plans at this moment”.

                

Aggressive Marketers Beware!!!!

It is also reminding Plan Sponsors of one of the primary fiduciary duties, the Prudent Person Rule of ERISA. In his interview with Brian Graff, CEO of the American Retirement Association on June 22, 2022, he reiterated that the obligation of Prudence is a Plan Fiduciaries job and that fiduciaries will need to be prepared to justify any decision to include Crypto in a plan saying “I think it is fair to say that as time goes by I would expect telling people that the issue are Prudence in this and this context is very very real and you need to take it very seriously and think hard about what you're doing here. That means, full analysis weighing all risks such as volatility, recordkeeping concerns and more."

This issue of prudence is very real and like in any other investment decision dealing with retirement plan assets, there isn’t an actual specific set of rules on what will pass muster and what won’t. It’s all facts and circumstances based. This is no different than what they’ve said previously with other “newer” investment ideas such as Private Equity. So, the question for plan fiduciaries is whether participant demand will be sufficient to consider using these funds and then, whether a prudent analysis of Crypto as a potential investment will yield a decision to add them to the plan and then, of course which one??

Let’s not forget that the prudent selection is not a one-time decision, the duty to monitor would also hold. Final thought, plan sponsors may choose to “punt” this plan decision by stewarding participants to use a Self-Directed Brokerage Account (SDBA) as the place to buy these instruments. However, a note of caution here as well. EBSA’s Field Assistance Bulletin 2012 - 02r says that SDBAs are still subject to ERISA 402(a)’s Fiduciary Standard’s of care. This means that the SDBA provider needs to be prudently selected and reasonable boundaries need to be built into the provider to restrict access to imprudent investments (ex. Municipal Securities, Level 2 options, etc.).

OUR TAKE: Over time Crypto may prove to be a viable new asset class OR it may prove to be a fad. I’ve even heard notions of Crypto or its’ underlying technology, blockchain technology, becoming a utility. However, it’s got a lot of uncertainty surrounding it and we would have a very difficult time as plan fiduciaries ourselves in advising a client that they’d be prudent to add to a menu of choices offered in a 401(k) Plan. If you have thoughts on this piece or want to discuss the topic further, please reach out to us! 

 

 

 

 

 

 

 

Jason Grantz is the Managing Director of Institutional Retirement Plans at Integrated Pension Specialists and a Retirement Plan Specialist at Integrated Wealth Concepts.  He can be reached at (978) 847-0140 ext. 820.

The Pandemic and Your Pension Plan 

Why Defined Benefit Pension Plans are more valuable then Ever

As entrepreneurs, the pandemic has uniquely impacted every corner of our businesses and our lives.  It has created stress and anxiety, upheaval, loss, new business models, migration from urban centers to suburban and rural locales and in our business, has removed the need for a centralized location.  Just a few weeks back, I had six 'Zoom' calls on the same day in six different states spread out across four separate time zones.  Pre-pandemic, I could never have imagined such efficiency. 
 

While it has been a very difficult environment for many traditional business, the restrictive setting has forced innovation and creativity, and ultimately adaptation. Some business survived, some failed and some have thrived and continue to do so.  Many small business' have experienced record financial outcomes.  With these large increases in revenues, the small business owner is left to figure out how to optimize the utility of their increased revenue.  This brings interesting planning opportunities for us financial professionals and tax planners.

 

One of the biggest questions (and opportunities) right now has to do with business retirement plans, both the popular 401(k) and the fast growing pension design, the Cash Balance plan.  Business owners want to (and in some states are required to, The State of the State Retirement Plans) offer retirement plans to their employees.  It is well known that these benefit plans help incentive and retain staff and provide an excellent setting for tax advantaged saving and investing.  But the question of what the right type of plan is TODAY for these newly thriving business' can feel overwhelming.
 

There is good news.  Back in 2019, when the CARES Act passed, it removed a legacy barrier to plan formation, the December 31st deadline for calendar year plans.  Removing this has solved a major planning problem which is the delay between December 31st and when the business owner and their CPA determined their annual compensation.   The CARES Act extended the deadline to implement and fund a new plan to the employers tax filing deadline, including extensions.  For plan designers like us at Integrated Pension Services, this means we'll be helping our partner advisors, CPAs and their clients to put together 2021 retirement plans potentially until as late as September 15, 2022.  
 

Think about the planning opportunity before us.  Because we'll know the 2021 (and prior) information early in 2022, we can design customized employer contribution arrangements with perfect tax-based hindsight!  The results of these designs may still end up being a common single-plan design, like a 401(k) profit sharing plan, but offers the opportunity to explore more creative formulas and plan types.  

The most common "sophisticated" solution we're implementing are DB/DC Combo plans.  These pair a 401(k) Profit Sharing plan (with an advantaged profit sharing formula) with a second plan in the form of a Cash Balance pension plan.  These are a modern form of a defined benefit plan. When structured properly, these plans create huge tax advantaged savings opportunities. 

 We're commonly structuring plans where the business owners and "favored few" are putting away hundreds of thousands of dollars into these plans.  Over time, this can work out to several million dollars in savings and depending on their state, can save as much as 50% in income taxes.
  
While almost any business could benefit from deferral through a retirement plan, this more sophisticated DB plan, is going to be more interesting to employers who have most of these characteristics:

• Robust and, as or more important, consistently high cash flows
• A strong desire/need to minimize income taxes, even if it means increasing benefits to staff
• As a minimum "rule of thumb", a desire from the business owner to save $100k or more in tax advantaged savings annually for themselves, with an idea that these will be made every year for 7-10 years OR longer
• Understanding that these are long term investments that will not be accessible until retirement
  

If you're a business owner reading this, including financial advisors and CPAs who own their practices, and you meet the above criteria, this can be a very powerful planning tool that needs exploration.  If you're in the latter camp and would like help in this area, we're here for you.  Just reach me at Jason@integrated-pension.com OR at (978) 847-0140 Ext. 820.  

What's the State of State Retirement Initiatives?

Earlier this spring on June 17th, Maine's House of Representatives and Senate approved legislation that would create a Payroll Deduct IRA plan for Maine-based workers whose companies did not otherwise offer a retirement plan.  Maine is only the latest state to enact such legislation, but almost certainly not the last. Initially, Maine's program will work similarly to other programs of this type in that it will be required to be adopted by any employer with 25 or more eligible employees starting April 1, 2023.  An interesting twist in the Maine program is that it is intended to also go to smaller employers once it is off the ground with 15-24 employee companies mandated in October, 2023 and then 5-14 employee companies that following April.  Of course, these smaller groups can participate ahead of the mandate if they choose.   

This is the most aggressive one's of these state programs that I've seen and is part of a broader overall idea that I agree with, which is that coverage is the primary retirement issue in the U.S. today.  The states and the federal government agree, with many states having enacted state mandates or in the process of doing so.   See this piece put out by Georgetown University with the latest information for each state.   

Georgetown's State Program Brief

The federal government is said to be similarly considering a uniform version of these types of programs (which would be very helpful so we don't all have to learn 50 different sets of rules) as well.  But even in lieu of that, with upwards of 50% of U.S. workers not having access to a workplace retirement plan, the need is there to expand opportunity.  With the recent creation of Pooled Employer Plans and many now up and running, the coverage gap is starting to get smaller and that's a good thing for everyone.  Once we get coverage and equity gaps narrowed or eliminated, new innovation in Retirement Income solutions, more sophisticated investment structures and better technology can start to evolve and make a dent in elderly poverty rates.

In short, I think that these types of state-run programs and new types of retirement plan offerings add complexity to the industries offerings, but more importantly address a real need and a problem that needs to be solved.  The challenge will be to the private sector in stepping up and ensuring that the public options don't become the standard.

- Jason Grantz, QPA, QKC, QKA, AIFA

 

Let's just say it, TPAs Do it Better! Right?

HOT TAKE: I prefer to work with Third Party Administrators (TPAs) over writing business bundled.  Whew, there I said it, out loud in a public manner.  

BTW, not a very hot take for those who've worked with me as a huge majority of the business I've worked on in my career I've chosen to partner with TPAs, even at the expense of revenue to my firm and commission in my pocket.  Wanna know why?  If not, stop reading.  

Before moving on, let's first learn about what TPAs are and do and what bundled vs. unbundled is in the context of retirement plans.  Retirement plans (401(k), ERISA 403(b), Pension, etc.) generally have two different broad components; the investments and services surrounding tracking of these and keeping records and the administrative area which centers around legal requirements, operating of the plan and compliance with the law, regulations and the governing plan documents.  It is this second area that is the domain of the TPA.

When it comes to those administrative services, the vast majority of plans use a TPA since without one, the option is self administration.  Unless your business is actually a TPA firm or otherwise in the field, self administering a plan is generally a poor idea.  That said, when the TPA service a plan uses is directly provided by (embedded in) the recordkeeper of the plan, the firm providing the participant daily accounting, web experience, statements and call center, that's referred to as 'Bundled'.  When the compliance services are provided by a separate company, the arrangement is unbundled.   

In my experience, the perceived advantages of bundling are generally associated with making it easier for clients and with costs.  Specifically, less vendors to interface with, and less confusion on where to go for answers or service needs.  However, this is often more perception than reality.  The bundled providers often structure service teams to be separate from the compliance teams and so, while it is one company, it's multiple departments within and so the 'number of cooks in the kitchen' is ultimately the same.

Similarly, the perception that costs can be reduced by bundling may or may not be true, it depends.  Regardless, compliance services need to be provided and the workload for the individuals providing that service is identical and thus the resources needed are identical.  The trick here is to understand how the bundled provider is collecting their fees.  It is possible, likely, that they will illustrate lower fees for compliance to the client, but higher fees in other areas making apples to apples comparisons difficult.  In my experience, true TPA costs are usually only different by minimal amounts (think hundreds, not thousands) and could go either way.  

Bottom line: when it comes to costs, bundling actually makes it more challenging for fiduciaries to properly evaluate service providers and fairness of fees.  What if the bundled provider is good at compliance but poor at recordkeeping OR providing investments.  The client is stuck in an all-in-one set-up, and few vendors are great at everything they do.  In that situation, a client has two choices, endure the poor service OR completely replace the entirety of the service which can be a real project for them as an employer.

What are the advantages of an independent TPA?

Perceived advantages are;

• Local TPAs can conduct in person meetings - Sometimes this is true, but with the proliferation of 'Zooming', this perceived advantage may be less important.
  
• Likely to receive more comprehensive boutique-style service, but also improved technical proficiency and competence - In the small plan market, this has absolutely been my experience.  This is a matter of volume of similar, smaller clients with more sensitivity to ERISA Non-Discrimination rules OR with desires for custom employer contribution formulas.  
• Often TPAs are more willing to work on pricing with retirement plan advisors who drive higher volume - Of course, this also ratches up the service expectations potentially to include 7-day/week access or faster turnarounds
• By decoupling the TPA from the recordkeeping/custody, they become easier to hold accountable as they can be replaced without a major project (usually).  - From a fiduciary prudence perspective, the more services are decoupled, the easier they become to evaluate for necessity, fee reasonableness and service.  
• Typically, the person at the TPA who is administering the plan is also the person managing the relationship.  This usually means a better communication arrangement as administrators need to have both relationship skills as well as technical chops. - My experience is that sometimes this is true at the TPA, sometimes not, but is is VERY uncommon for the bundled administrator to also have top notch communication skills. 
• The major advantage comes from flexibility of plan design.  Simply put, TPAs can use varying documents, be nimble enough to amend plans on the fly and are the opposite of 'conveyor belt' style.  - I've always deferred to the TPA when New Comparability, Cash Balance or other custom formulas are required.  But I've also found that TPAs are often in the best position to opine around quality of local payroll or other benefit providers.  
  

There are other reasons (I don't know if you picked up on the word relationship earlier in this post, eh hem, but that's the whole deal for me), but for me, the independent TPA simply allows more flexibility, often better process' and higher quality compliance services than is typically found at a bundled provider.  Of course, as with any decision a Plan Sponsor makes surrounding plan services, they should evaluate who does their TPA work with due care and prudence.  This means evaluate not only who their recordkeeper and investment provider is, but also what structure is right for them and understand how fees are gathered and what the fees are for.  

As always, would love to here from the retirement plan community their thoughts on this topic.  Thanks for reading!

- Jason Grantz, QPA, QKC, QKA, AIFA

 

ESG, What's That and Why is Everyone Talking about it?

 Environmental, Social and Governance (as in Corporate Governance).  This is only the newest acronym in a very acronym heavy industry.  In the context of retirement plans, this is referring to factors that are being deployed within specific investments, such as mutual funds, in order to restrict those investments from putting money towards certain areas that are deemed to be negatively contributing to society in some way.  As with anything new, clear lines as to what constitutes the criteria to be broadly categorized in this way are about as clear as mud.  So, without a clear definition, but WITH a clear demand, what is the best way to incorporate these (or not) into retirement plans?  As with anything retirement, this is actually a complicated subject.  

The industry has been debating this topic for quite some time, I can recall being offered the Calvert Socially Responsible Fund WAY back in the mid 1990's in my own very first 401(k) plan.  However, only recently (mid 2020 DOL Proposes New Rules Regulating ESG Investments) has the Department of Labor (DOL) opined on this topic, and in typical DOL form, they were fairly vague in the language they used and caused everyone to google search what the definition of the word pecuniary means, lol.  

In short, the simplest way I can interpret what was said is that the DOL said that social attitudes should not factor into ERISA-driven decision making, but rather only consider the statistical metrics and follow the fundamental fiduciary rules when choosing funds for a plan.  Namely, the Exclusive Purpose Rule (always acting solely in best interest of participants and their beneficiaries) and Duties of Loyalty, Prudence, Due Care, etc.  Candidly, I agree that these principals should be applied.  However, it's a bit more complex and I will tackle what I mean in a moment.  Quick note; these proposed rules came out in mid-2020 under the Trump administration, and in March of 2021, the Biden administration announced (Biden DOL Announces Non-enforcement Policy on ESG) non-enforcement until the rule could be studied, and presumably changed to be more socially friendly.  None of this is surprising given current partisan politics.  

Here's why this is complicated in my opinion.  

It's Supposed to be about the Participants!

For the sake of this part, lets assume that ESG factors are neutral when it comes to benefiting investment returns OR being detrimental to them.  If this is the case, then the stance of only looking at the normal evaluation metrics based on asset class should be the driving factor and much of what the DOL said is moot.  However, a natural conclusion is that applying any restriction to a money manager would have the impact of reducing return opportunity which can only be viewed as detrimental, and so the DOL opinion has some controversy to it.  

The one area that I keep thinking about is the participant and their perspective on this, of which, I've seen almost nothing written about.  More pointedly, I'm thinking about how individuals who are concerned about ESG tend to invest.  In my 25+ years of experience, it's been my observation that individuals fall into one of three camps regarding ESG;

1.) Those where it's not important 

2.) Those who are blissfully ignorant of the issue altogether AND 

3.) Those where it is extremely important and a moral issue.  

For this third group, the moral aspect of it leads them to think about investing in the same way they think about other decisions, like where to eat and where to buy groceries or clothes.  Where they get these things, and what those companies ideals are is important to them.  And for these people, the decision on investing ESG or not is a binary one, and tends to be All-OR-None.  Because of this, plan fiduciaries, in applying the principal of doing what's in the best interest of the participant should first consider which of the three groups their employees fit into.  If it's solely the first two, then ESG is a non-issue.  However if a modest or even a large amount of participants fall into the third category, there are additional considerations that need factoring in.

What I'm positing is that if having ESG will cause category 3 participants, to go from not participating in to fully saving in their 401(k) plan, then regardless of pecuniary factors, it is better to have the ESG investments in the plan then to not include them.  In other words, it's generally better for participants to save and invest in the plan then to not save at all, even if the investments are potentially slightly worse then they could be.  

If this is a true conclusion, the question becomes how does an investment manager or committee go about choosing ESG funds for a plan in light of the current rules.  Here are my two ideas;

1.) Create a Second line-up that mirrors the first but for ESG.  This is going to be a challenge for a variety of reasons, here are a few;

• Recordkeeper constraints, either on fund availability or quantity of funds system can handle
• Quality of ESG menu OR availability of ESG funds in specific asset classes
• QDIA issue or Target Date fund issue....same issue, are there viable options?
• Enrollment and other Communication materials.....how does playing field become level?  
• ......there are more
  

2.) Incorporate an ESG fund selection process as part of the Investment Policy, identifying that the ESG investment in the plan will be a single investment, that would otherwise qualify as a QDIA.  It would be diversified, incorporating stock and bond investments. Perhaps it is part of a TDF series OR not.  Think Asset Allocation fund OR a specifically designed Asset Allocation Model comprised of multiple ESG funds, that are separate and distinct from the core menu, but screened by the Investment Manager for quality.  

In conclusion, this topic is likely to continue to be an open discussion point until clearly defined rules are decided and finalized.  Until then, I like Option 2 above.  It provides a viable, well thought out, higher quality ESG alternative to offer in the plan, with minimal confusion and high consideration to the All-Or-None characteristic of ESG investors while not losing the need for investment diversification.

As always, would love to hear what people think about the above ideas.   Feel free to comment or reach out to me directly.

- Jason Grantz, QPA, QKC, QKA, AIFA

  

If You're the Smartest Person in the Room, You're in the Wrong Room!

This title is one of my favorite quotes that is so very wise.  It was originally said by a noted academic, Dr. David Weinberger.  By applying this adage to my professional life, I've almost universally been the better for it.  If it weren't for this philosophy, I never would have tried to write papers, blogs and the like, and thus would never have decided to create this blog.  I've recently realized, that this blog is really the only independent place where I can document all of the work I've done in my career.  So, here are a few of my notable papers in one place, the better ones co-written by someone who is most definitely the smartest person in my two person rooms, HA!  Hope you enjoy these.

Retirement Success: A Surprising look into the Factors that Drive Positive Outcomes - This is the very first paper I published in my professional career, originally published in the Summer edition of the ASPPA Journal in 2011.  Interestingly, this piece has been a weight baring beam in my career, a foundational notion for everything I've done since.  The smart co-author on this gem is David Blanchett (now head of Retirement Research at Morningstar) who took my original question and did 100% of the math! - September 1, 2011

Deconstructing the Fiduciary Models: 3(38) vs. Discretionary Trustee - In this piece, my very smart associate, Mike Samford and I try to tackle a highly nuanced area of ERISA fiduciary service, taking discretion over plan investments.  While I would change some of what I've written here nearly ten years later, most of this still holds.   - July 11, 2012

Third Party Fiduciaries; Myth and Reality- Occasionally, I managed enough nerve to write solo, and invariably the result never as good as when I've written with a partner.  This is my first ever solo piece, originally self published but picked up by Retirementsolutionsnow.com. - June - 2013 (Orig. Jan. 17, 2013)

Retirement Income—In-Plan vs. Out-of-Plan Solutions, Which Is Better?

Retirement Income - In Plan vs Out-of-Plan Solutions, Which Is Better?  - This is still today (in 2021) a hot topic, annuities in retirement plans.  We had this published in the Journal of Pension Benefits and it explores Retirement Income solutions, as they exist within 401(k) plans, whether individuals would be served better with those solutions or out-of-plan solutions and provides ideas for how to adequately deliver retirement income for retired Americans.  The 'smart' on this one was my co-author, Dr. Greg Kasten. - Feb. 1, 2013.

How 401k Advisors can Effectively Offer 316 Services - Here's a piece I authored in 401(k) Specialist which discusses the 'at the time' new spate of administrative fiduciary services and a model for retirement plan advisors to gain a competitive advantage.  No co-author on this one, AND you can tell! - June 14, 2016

- Jason Grantz, QPA, QKC, QKA, AIFA

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SECURE ACT 2.0, The 'Pay For', Part 3

 

In the previous 2 posts on this subject, we discussed SECURE 2.0 and highlighted some of my favorite parts.  We're going to wrap up this series with my last two favorite provisions, which interestingly fall on the side of revenue generators.  As a reminder, this is a new piece of proposed bipartisan legislation seeking to improve retirement plans.  While there are more steps to this Act becoming a law, I feel pretty confident that this one has legs, and candidly, that's GREAT news for the retirement plan community and our clients.  I think this will get done in 2021 with implementation of many of the provisions in 2022. 

For a an amazing summary of all of the new provisions contained within the final mark-up, here's a link What's in SECURE 2.0?.

The What:

Committee Chairman Richard Neal (D-MA), along with the Committee’s ranking Republican, Rep. Kevin Brady (R-TX), first introduced the bill, Securing a Strong Retirement Act (SSRA), last October as a sequel to the 2019 SECURE Act. While that version of the bill included some 36 provisions, the new Securing a Strong Retirement Act of 2021 (H.R. 2954) now contains about 45 provisions, including new revenue offsets to pay for the bill. 

My Favorite Few Provisions continued, part 3: 

These final two provisions we're looking at in the series work together in my opinion as they're engineered to create more tax based flexibility for individuals while at the same time allowing immediate tax revenue to be generated to help pay for all of the new benefits.  They are estimating that these provisions could raise as much as $27 billion in new revenue over a 10-year period.  This 10-year period is important because while retirement plan benefits can spread over lifetimes, congress only looks at tax over ten year periods.  One way to think of this is that it's the 'Rothification of Retirement' as is discussed in this excellent piece in Think Advisor. 

SIMPLE and SEP Roth IRAs: Most employers and individuals have heard of the most famous Internal Revenue Code, Section 401(k).  However, many small employers opt not to install a 401(k) because of the costs, risks and compliance requirements.  Back in late 1990's this was addressed by creating a hybrid type employer sponsored retirement plan that took on the characteristics of both IRAs and 401(k)s called a SIMPLE IRA.  While these are lesser known, they can be very valuable benefits and also "starter" retirement plans for business'.  

Under current law a SIMPLE IRAs and Simplified Employee Pensions (SEPS) are solely tax deferred vehicles.  SECURE 2.0 changes this so that they could be designated as Roth.  Like other ROTHs, contributions made in this manner would be subject to current year taxes, but the growth on such contributions would be tax free.  ERISA qualified DC plans (401(k), 403(b), etc.) currently allow for such contributions and this closes the door on that distinction between the two structures.  This proposal applies to tax years beginning after Dec. 31, 2021.  

EMPLOYER MATCH as ROTH too??!!!

Just like the previous provision in reference to SIMPLE IRAs and SEPs, the proposal allows for a new contribution source in 401(a), 401(k), 403(b) and 457(b) plans.  The ROTH EMPLOYER MATCH!  Similarly, just like other ROTH structures, the taxation of this works the same way, the contribution is immediately taxable, and the growth grows tax free and is tax free upon distribution from the plan.  This one is interesting to me not because of the ROTH part, but because these are employer dollars being contributed to an employees plan, BUT will need to be included in the gross income of that employee today.  I suspect the payroll providers are going to have a little programming to do in order to accommodate this on pay stubs and W-2s.  That said, I like it.  My view on ROTH has never been ROTH (After-Tax grows tax free) is necessarily better than traditional deferral (Pre-Tax grows Tax deferred) or vice versa, but rather it allows for strategic tax diversification at retirement which can be highly beneficial during someone's decumulation phase when they're taking distributions.  

This concludes the series on SECURE 2.0.  Please be sure to subscribe to the feed for more blog content in the future.

- Jason Grantz, QPA, QKC, QKA, AIFA