So what plans ARE covered by the fiduciary rule? A recent blog post by Fred Reish (with help from some of his colleagues at Drinker Biddle) addresses that question, as well as which plans the rule does not cover. And it’s not cut and dried: “It’s more complicated than you may think, in the sense that some of the covered plans may surprise you,” writes Reish.
The blog post
acknowledges that “some plans are not subject to the Rule, and some arrangements that are not actually IRAs are treated as if they were IRAs and therefore subject to the Rule,” before turning to the point: how “plans” and “IRAs” are defined. It includes a reprint of an article by Drinker Biddle attorneys Bruce Ashton, Elise Norcini and Josh Waldbeser on the subject.
What Is Covered
The authors explain that under the fiduciary regulation, covered plans include:
1) all plans, as defined by ERISA; and
2) all plans qualified under Internal Revenue Code Section 401(a).
The post notes that while many plan types fall under both categories, all it takes to be covered is to fall under one. For example, the post goes on to explain that 401(k) plans (benefiting employees of an employer) are both ERISA plans and qualified plans, as do profit-sharing plans, ESOPs and most money purchase and defined benefit plans (unless they fall into an excluded categories). At which point, it’s worth considering the plans covered by the fiduciary regulation — as plans:
- Individual (solo) 401(k)s
- 403(b) plans (other than governmental and non-electing church plans, and payroll deduction only 403(b)s)
- Money purchase plans (other than governmental and non-electing church plans)
- Defined benefit plans (other than governmental and non-electing church plans)
As for IRAs, those covered include all arrangements that are not “plans” under the above definition, but are treated as plans under the Internal Revenue Code’s excise tax rules — which, the authors note, includes both IRAs and other similar arrangements such health savings accounts (HSAs). In addition, “payroll deduction only” IRAs are subject to the fiduciary regulation as IRAs, even though they are not plans.
And those covered under the fiduciary regulation as IRAs:
- IRAs 401(k) plans — all types
- Payroll deduction only IRAs
- Individual retirement annuities
- Health savings accounts (HSAs)
- Archer medical savings accounts (MSAs)
- Coverdell education savings accounts (ESAs)
The authors write that the fiduciary regulation does not affect arrangements that are neither plans nor IRAs. Following are the types of plans not covered by the fiduciary regulation, says Reish:
- Governmental plans — all types
- Payroll deduction only 403(b)s
- 457 plans — both 457(b) and 457(f)
- Non-qualified equity compensation, such as stock options and restricted stock units
- Non-electing church plans — all types
- Non-qualified deferred compensation plans
- Uniform gifts/Transfers to minors’ accounts
“Given this complexity, we understand why confusion may persist about what plans and arrangements are subject to the Rule,” the authors write.