Benefits Report: Special Alert
On October 31, 2023, the Department of Labor (DOL) released its proposed rule (the “Proposed Rule”) providing a draft new regulatory definition of an “investment advice fiduciary” under the Employment Retirement Income Security Act of 1974 (ERISA)..
The Proposed Rule breathes new life into the DOL’s decades-long effort to reform the definition of who may be considered a fiduciary by providing investment advice for a fee or other compensation. The drafting of such a rule is no small feat. Prior attempts ultimately failed, with a 2010 proposed rule being withdrawn by the DOL, and a 2016 final rule (2016 Fiduciary Rule) being vacated by the Fifth Circuit Court of Appeals in 2018.
The challenges in updating the definition of “investment advice fiduciary” are numerous. First, the existing definition is almost 50 years old (issued in 1975) and reflective of a world in which defined benefit plans were dominant. With the vast majority of retirements now housed in participant directed defined contribution plans, reconsiderations are warranted. Simultaneously, there is a desire not to overhaul the definition so extensively that it overcomplicates or overburdens the process of rendering investment advice to the point where rendering advice becomes unfeasible. In its opinion vacating the 2016 Fiduciary Rule, the Fifth Circuit Court of Appeals reasoned that the DOL swept too broadly in defining “investment advice fiduciary” and extended beyond those “touchstone” relationships necessitating trust and confidence.
We are pleased to announce that we have been FPO remedial programs; advising and defending fiduciaries regarding their obligations and liabilities; and structuring qualified plan.
The following were also individually recognized:
(1) The person either directly or indirectly (e.g., through or together with any affiliate) has discretionary authority or control, whether or not pursuant to an agreement, arrangement, or understanding, with respect to purchasing or selling securities or other investment property for the retirement investor;
(2) The person either directly or indirectly (e.g., through or together with any affiliate) makes investment recommendations to investors on a regular basis as part of their business and the recommendation is provided under circumstances indicating that the recommendation is based on the particular needs or investor as a basis for investment decisions that are in the retirement investor’s best interest; or
(3) The person making the recommendation represents or acknowledges that they are acting as a fiduciary when making investment recommendations.
A recommendation for these purposes is defined as:
Every year Super Lawyers identifies FPO of the Government Affairs Committee of the American Society of Pension Professionals and Actuaries (ASPPA), and he is a past member of both the Executive Committee and the Board of Directors of ASPPA. Nick frequently speaks at conferences held by ASPPA, WP&BC, the National Institute of Pension Administrators (NIPA) and other industry organizations.
The following were also individually recognized:
Footnotes
Robert Gower and Zachary T. Isenhour
Tuesday, Ocober 17, 2023
10:00 – 11:00 AM PDT
Prior to entering private practice, Nick worked for the IRS in the Employee Plans and Exempt Organizations Division (now known as the Tax Exempt & Government Entities Division or TE/GE Division), where he served on the Technical Review Staff as a Senior Reviewer for both determination and examination cases, and as a technical resource for the Division. Ultimately, Nick became the Coordinator of the IRS’ Western Region Walk-in Closing Agreement Program, which is now part of the IRS’ remedial program known as the Voluntary Correction Program or VCP.
Questions you would like addressed during the webinar are welcome — send to: webinars@truckerhuss.com
This program is eligible for MCLE credit.
Trucker Huss APC is pleases to announce FPO worked for the IRS in the Employee Plans and Exempt Organizations Division (now known as the Tax Exempt & Government Entities Division or TE/GE Division), where he served on the Technical Review Staff as a Senior Reviewer for both determination and examination cases.
Ultimately, Nick became the Coordinator of the IRS’ Western Region Walk-in Closing Agreement Program, which is now part of the IRS’ remedial program known as the Voluntary Correction Program or VCP.
The Trucker Huss Benefits Report is published monthly to provide our clients and friends with information on recent legal developments and other current issues in employee benefits. Back issues of the Benefits Report are posted on the Trucker Huss website (www.truckerhuss.com)
Editor: Nicolas J. White, nwhite@truckerhuss.com
In response to new IRS rules of practice, we inform you that any federal tax information contained in this writing cannot be used for the purpose of avoiding tax-related penalties or promoting, marketing or recommending to another party any tax-related matters in this Benefits Report.
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www.truckerhuss.com
135 Main Street, 9th Floor
San Francisco, CA 94105-1815
15760 Ventura Boulevard, Suite 910
Los Angeles, CA 91436-2964
329 NE Couch Street, Suite 200
Portland, OR 97232-1332
135 Main Street, 9th Floor
San Francisco, CA 94105-1815
15760 Ventura Boulevard, Suite 910
Los Angeles, CA 91436-2964
329 NE Couch Street, Suite 200
Portland, OR 97232-1332