Notice to Participants of Consequences of Failing To Defer Receipt of Qualified Retirement Plan Distributions; Expansion of Applicable Election Period and Period for Notices, 59575-59579 [E8-23918]
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Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules
(or its delegated agent) and performing
corrective action before further flight.
§1.336–3
Other FAA AD Provisions
(g) The following provisions also apply to
this AD:
(1) Alternative Methods of Compliance
(AMOCs): The Manager, International
Branch, ANM–116, FAA, has the authority to
approve AMOCs for this AD, if requested
using the procedures found in 14 CFR 39.19.
Send information to Attn: Tom Rodriguez,
Aerospace Engineer, International Branch,
ANM–116, Transport Airplane Directorate,
FAA, 1601 Lind Avenue, SW., Renton,
Washington 98057–3356; telephone (425)
227–1137; fax (425) 227–1149. Before using
any approved AMOC on any airplane to
which the AMOC applies, notify your
appropriate principal inspector (PI) in the
FAA Flight Standards District Office (FSDO),
or lacking a PI, your local FSDO.
(2) Airworthy Product: For any requirement
in this AD to obtain corrective actions from
a manufacturer or other source, use these
actions if they are FAA-approved. Corrective
actions are considered FAA-approved if they
are approved by the State of Design Authority
(or their delegated agent). You are required
to assure the product is airworthy before it
is returned to service.
(3) Reporting Requirements: For any
reporting requirement in this AD, under the
provisions of the Paperwork Reduction Act,
the Office of Management and Budget (OMB)
has approved the information collection
requirements and has assigned OMB Control
Number 2120–0056.
Related Information
(h) Refer to MCAI EASA Emergency
Airworthiness Directive 2008–0137–E, dated
July 23, 2008, and Avions de Transport
Regional Service Bulletin ATR72–27–1059,
Revision 02, dated May 19, 2008, for related
information.
Issued in Renton, Washington, on October
3, 2008.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. E8–23982 Filed 10–8–08; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG–143544–04]
jlentini on PROD1PC65 with PROPOSALS
RIN 1545–BD84
Regulations Enabling Elections for
Certain Transactions Under Section
336(e)
Correction
In proposed rule document E8–19603
beginning on page 49965 in theissue of
Monday, August 25, 2008, make the
following correction:
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[Corrected]
59575
26 CFR Part 1
DC 20044. Submissions may be handdelivered Monday through Friday
between the hours of 8 a.m. and 4 p.m.
to: CC:PA:LPD:PR (REG–107318–08),
Courier’s Desk, Internal Revenue
Service, 1111 Constitution Avenue,
NW., Washington, DC, or sent
electronically via the Federal
eRulemaking Portal at https://
www.regulations.gov (IRS REG–107318–
08).
FOR FURTHER INFORMATION CONTACT:
Concerning the regulations, Michael P.
Brewer at (202) 622–6090; concerning
submission of comments or to request to
speak at the public hearing, Funmi
Taylor at (202) 622–7180 (not toll-free
numbers).
[REG–107318–08]
SUPPLEMENTARY INFORMATION:
RIN 1545–BH75
Paperwork Reduction Act
Notice to Participants of
Consequences of Failing To Defer
Receipt of Qualified Retirement Plan
Distributions; Expansion of Applicable
Election Period and Period for Notices
The collection of information
contained in this notice of proposed
rulemaking has been submitted to the
Office of Management and Budget for
review in accordance with the
Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)). Comments on the
collection of information should be sent
to the Office of Management and
Budget, Attn: Desk Officer for the
Department of the Treasury, Office of
Information and Regulatory Affairs,
Washington, DC 20503, with copies to
the Internal Revenue Service, Attn: IRS
Reports Clearance Officer,
SE:W:CAR:MP:T:T:SP; Washington, DC
20224. Comments on the collection of
information should be received by
December 8, 2008. Comments are
specifically requested concerning:
Whether the proposed collection of
information is necessary for the proper
performance of the functions of the
Internal Revenue Service, including
whether the information will have
practical utility;
The accuracy of the estimated burden
associated with the proposed collection
of information;
How the quality, utility, and clarity of
the information to be collected may be
enhanced;
How the burden of complying with
the proposed collections of information
may be minimized, including through
the application of automated collection
techniques or other forms of information
technology; and
Estimates of capital or start-up costs
and costs of operation, maintenance,
and purchase of service to provide
information.
The collection of information in these
proposed regulations is in § 1.411(a)–
11(c)(2) of the Income Tax Regulations.
This collection of information is
required to comply with the statutory
1. On page 49979, in the first column,
in §1.336–3(d)(1), in thetwenty-second
line, ‘‘into account in an amount’’
should read‘‘into account in amount’’.
2. On the same pages, in the same
column, in §1.336–3(d)(2), in thelast
line, ‘‘into account in an amount’’
should read ‘‘into accountin amount’’.
[FR Doc. Z8–19603 Filed 10–8–08; 8:45 am]
BILLING CODE 1505–01–D
DEPARTMENT OF THE TREASURY
Internal Revenue Service
Internal Revenue Service (IRS),
Treasury.
ACTION: Notice of proposed rulemaking
and notice of public hearing.
AGENCY:
SUMMARY: This document contains
proposed regulations under sections
402(f), 411(a)(11), and 417 of the
Internal Revenue Code (Code). The
proposed regulations would provide
that the notice required under section
411(a)(11) to be provided to a
participant of his or her right, if any, to
defer receipt of an immediately
distributable benefit must also describe
the consequences of failing to defer
receipt of the distribution. The proposed
regulations would also provide that the
applicable election period for waiving
the qualified joint and survivor annuity
form of benefit under section 417 is the
180-day period ending on the annuity
starting date, and that a notice required
to be provided under section 402(f),
section 411(a)(11), or section 417 may
be provided to a participant as much as
180 days before the annuity starting date
(or, for a notice under section 402(f), the
distribution date). These regulations
would affect administrators of,
employers maintaining, participants in,
and beneficiaries of tax-favored
retirement plans.
DATES: Written or electronic comments
and requests to speak at the public
hearing must be received by January 7,
2009.
ADDRESSES: Send submissions to:
CC:PA:LPD:PR (REG–107318–08), room
5203, Internal Revenue Service, PO Box
7604, Ben Franklin Station, Washington
PO 00000
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Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules
notice requirements of section 411(a),
and is expected to be included in the
notices currently provided to employees
that inform them of their rights and
benefits under the plan. The likely
recordkeepers are businesses or other
for-profit institutions and nonprofit
institutions and organizations.
Estimated total annual recordkeeping
burden: 100,000 hours.
Estimated average annual burden
hours per recordkeeper: 1 hour.
Estimated number of recordkeepers:
100,000.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a valid control
number assigned by the Office of
Management and Budget.
Books or records relating to a
collection of information must be
retained as long as their contents may
become material in the administration
of any internal revenue law. Generally,
tax returns and tax return information
are confidential, as required by 26
U.S.C. 6103.
Background
jlentini on PROD1PC65 with PROPOSALS
A. Notice of Consequences of Failing To
Defer
Section 411(a)(11)(A) provides that, if
the present value of any nonforfeitable
accrued benefit exceeds $5,000, a
qualified plan must provide that such
benefit may not be immediately
distributed without the consent of the
participant. Similarly, section 203(e) of
the Employee Retirement Income
Security Act of 1974, as amended
(ERISA), provides that if the present
value of any nonforfeitable accrued
benefit with respect to a participant in
a plan exceeds $5,000, the benefit may
not be immediately distributed without
the consent of the participant.
Section 1102(b)(1) of the Pension
Protection Act of 2006 (PPA ’06), 109
Public Law 280, 120 Stat. 780, instructs
the Secretary of the Treasury to modify
the regulations under section 411(a)(11)
of the Code ‘‘to provide that the
description of a participant’s right, if
any, to defer receipt of a distribution
shall also describe the consequences of
failing to defer such receipt.’’ Section
1102(b)(2)(A) of PPA ’06 provides that
the modifications required by section
1102(b)(1) of PPA ’06 shall apply to
years beginning after December 31,
2006. Section 1102(b)(2)(B) of PPA ’06,
however, states that a plan shall not be
treated as failing to meet the
requirements of section 411(a)(11) with
respect to any description of the
consequences of failing to defer
provided ‘‘within 90 days after the
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Secretary of the Treasury issues the
modifications required by [section
1102(b)(1) of PPA ’06] if the plan
administrator makes a reasonable
attempt to comply with such
requirements.’’
Section 1.411(a)–11(c)(2)(i) states that,
in order for a plan to obtain valid
consent under section 411(a)(11), ‘‘so
long as a benefit is immediately
distributable, a participant must be
informed of the right, if any, to defer
receipt of the distribution.’’ Section
1.411(a)–11(c)(4) states that a
distribution is immediately distributable
prior to the later of the time a
participant has attained normal
retirement age or age 62.
Q&A–32 of Notice 2007–7, 2007–5
I.R.B. 395, provides that a plan
administrator is required to revise the
notice required under section 411 to
reflect the modifications made by
section 1102(b) of PPA ’06 for notices
provided in plan years beginning after
December 31, 2006. Notice 2007–7
further provides that, pursuant to
section 1102(b)(2)(B) of PPA ’06, a plan
will not be treated as failing to meet the
new requirements of section 1102(b) of
PPA ’06 if the plan administrator makes
a reasonable attempt to comply with the
new requirements with respect to a
notice that is provided prior to the 90th
day after the issuance of regulations
reflecting the modifications required by
such section 1102(b) of PPA ’06. See
§ 601.601(b)(2)(ii)(b).
Q&A–33 of Notice 2007–7 includes a
safe harbor that would be considered a
reasonable attempt to comply with the
requirement in section 1102(b)(1) of
PPA ’06 that a description of a
participant’s right to defer receipt of a
distribution include a description of the
consequences of failing to defer. In
particular, Q&A–33 provides that a
description that is written in a manner
reasonably calculated to be understood
by the average participant and that
includes the following information is a
reasonable attempt to comply with the
requirements of section 1102(b)(2)(B) of
PPA ’06: (a) In the case of a defined
benefit plan, a description of how much
larger benefits will be if the
commencement of distributions is
deferred; (b) in the case of a defined
contribution plan, a description
indicating the investment options
available under the plan (including fees)
that will be available if distributions are
deferred; and (c) the portion of the
summary plan description that contains
any special rules that might materially
affect a participant’s decision to defer.
For purposes of clause (a), a plan
administrator can use a description that
includes the financial effect of deferring
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distributions, as described in
§ 1.417(a)(3)–1(d)(2)(i), based solely on
the normal form of benefit.
Q&A–31 of Notice 2007–7 provides
that the provisions of section 1102
apply to plan years that begin after
December 31, 2006. Q&A–31 explains
that this means that the new rules
relating to the content of the notices
apply only to notices issued in those
plan years, without regard to the
annuity starting date for the
distributions.
B. Expansion of Applicable Election
Period
Section 401(a)(11)(A)(i) provides that,
except as provided in section 417, a
plan that is qualified under section
401(a) must provide the accrued benefit
payable to a vested participant who
does not die before the annuity starting
date in the form of a qualified joint and
survivor annuity.
Section 417(a)(1)(A) provides that, in
general, a plan satisfies section
401(a)(11) only if each participant may
elect at any time during the ‘‘applicable
election period’’ to waive the qualified
joint and survivor annuity form of
benefit (and to revoke the waiver), and
certain other requirements are satisfied.
Before PPA ’06, section 417(a)(6)(A)
provided that the ‘‘applicable election
period’’ for a participant to waive the
qualified joint and survivor annuity
form of distribution was the 90-day
period ending on the annuity starting
date.
Section 1102(a)(1)(A) of PPA ’06
amended section 417(a)(6)(A) by
changing the 90-day ‘‘applicable
election period’’ for electing a
distribution subject to the qualified joint
and survivor annuity (QJSA) rules of
sections 401(a)(11) and 417 in a form
other than a QJSA to a 180-day
applicable election period. Section
1102(a)(2)(A) of PPA ’06 made a parallel
amendment to section 205(c)(7)(A) of
ERISA by striking ‘‘90-day’’ and
inserting ‘‘180-day’’.
Sections 1102(a)(1)(B) and
1102(a)(2)(B) of PPA ’06 provide that the
Secretary of the Treasury shall modify
the regulations relating to section 417 of
the Code and section 205 of ERISA by
substituting ‘‘180 days’’ for ‘‘90 days’’
each place it appears.
Section 1102(a)(3) of PPA ’06
provides that the amendments to the
applicable election period apply to
years beginning after December 31,
2006.
C. Expansion of Period for Notices
Section 417(a)(3)(A) of the Code and
section 205(c)(3)(A) of ERISA provide
that a plan must provide to each
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Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules
participant, ‘‘within a reasonable period
of time before the annuity starting date’’
and consistent with such regulations as
the Secretary of the Treasury may
prescribe, a written explanation that
describes the terms and conditions of
the qualified joint and survivor annuity
and certain other information. Similarly,
section 402(f)(1) provides that a plan
administrator must, ‘‘within a
reasonable period of time’’ before
making an eligible rollover distribution,
provide to recipients an explanation of
certain tax consequences of the
distribution.
Section 1102(a)(1)(B) of PPA ’06
provides that the Secretary of the
Treasury shall modify the regulations
under sections 402(f), 411(a)(11), and
417 by substituting ‘‘180 days’’ for ‘‘90
days’’ each place it appears in
§§ 1.402(f)–1, 1.411(a)–11(c), and
1.417(e)–1(b). Similarly, section
1102(a)(2)(B) of PPA ’06 provides that
the Secretary of the Treasury shall
modify the regulations relating to
sections 203(e) and 205 of ERISA by
substituting ‘‘180 days’’ for ‘‘90 days’’
each place it appears.
Section 1102(a)(3) provides that the
amendments to the notice periods apply
to years beginning after December 31,
2006. Q&A–31 of Notice 2007–7
explains that the 180-day period for
distributing notices applies to notices
distributed in a plan year that begins
after December 31, 2006.
D. Requirements under ERISA
ERISA section 203(e) is the parallel
provision to section 411(a)(11) of the
Code and ERISA section 205 is the
ERISA parallel to section 417 of the
Code. Pursuant to section 101 of
Reorganization Plan No. 4 of 1978, 29
U.S.C. 1001nt (the Reorganization Plan),
the Secretary of the Treasury generally
has authority to issue regulations under
parts 2 and 3 of subtitle B of title I of
ERISA, including sections 203(e) and
205 of ERISA. Thus, the changes
required by section 1102 of PPA ’06
would apply as well for purposes of
ERISA sections 203(e) and 205.
Explanation of Provisions
jlentini on PROD1PC65 with PROPOSALS
A. Notice of Consequences of Failing To
Defer
These proposed regulations would
provide that the notice required by
section 411(a)(11) advising a participant
of the right, if any, to defer receipt of a
distribution must also inform the
participant of the consequences of
failing to defer such receipt. The
proposed regulations would also
provide guidance on the relevant
information that must be provided to a
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participant in order to satisfy the
requirement that the participant be
notified of the consequences of failing to
defer.
Specifically, these proposed
regulations would require that the
participant be provided a description of
specified federal tax implications of
failing to defer and, in the case of a
defined benefit plan, a statement of the
amount payable to the participant under
the normal form of benefit both upon
immediate commencement and when
the benefit is no longer immediately
distributable (that is, the later of age 62
or attainment of normal retirement age).
Section 1.417(a)(3)–1(c)(2)(ii) permits a
plan to provide participants with a
QJSA explanation, which does not vary
based on the participant’s marital status,
of the relative value of optional forms of
benefit compared to the value of a QJSA.
These proposed regulations would
permit the statement of the amount
payable to not be based on the
participant’s marital status, to the extent
the plan is permitted under
§ 1.417(a)(3)–1(c)(2)(ii) to use a QJSA
explanation that does not vary based on
whether the participant is married or
unmarried.
The proposed regulations would also
require the information in the notice to
include, in the case of a defined
contribution plan, a statement that some
currently available investment options
in the plan may not be generally
available on similar terms outside the
plan and contact information for
obtaining additional information on the
general availability outside the plan of
currently available investment options
in the plan. In addition, the proposed
regulations would require the notice to
include, in the case of a defined
contribution plan, a statement that fees
and expenses (including administrative
or investment-related fees) outside the
plan may be different from fees and
expenses that apply to the participant’s
account and contact information for
obtaining information on such fees.
The proposed regulations also include
an additional category of information
that must be provided relating to any
provisions of the plan (and provisions of
any accident or health plan maintained
by the employer) that could reasonably
be expected to materially affect a
participant’s decision whether to defer
receipt of the distribution. Thus, for
example, the proposed regulations
would require a description of the
eligibility requirements for retiree
health benefits if such benefits are
limited to participants who have an
undistributed benefit under the
employer’s retirement plan.
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59577
In general, the proposed regulations
would also provide that the required
information regarding the consequences
of a participant’s failing to defer receipt
of a distribution must appear together.
However, the proposed regulations
would permit a cross-reference to where
the required information may be found
in notices or other information provided
or made available to the participant, as
long as the notice of consequences of
failing to defer includes a statement of
how the referenced information may be
obtained without charge and explains
why the referenced information is
relevant to a decision whether to defer.
B. Expansion of Applicable Election
Period and Period for Notices
Consistent with sections 1102(a)(1)(A)
and (1)(B) and 1102(a)(2)(A) and (2)(B)
of PPA ’06, the proposed regulations
would both (1) expand the definition of
applicable election period to up to 180
days, and (2) expand the time period for
notices issued under sections 402(f),
411(a)(11), and 417 to allow the notices
to be issued up to 180 days prior to the
annuity starting date (or, in the case of
a notice under section 402(f), the date of
distribution). Specifically, the proposed
regulations would substitute ‘‘180 days’’
for ‘‘90 days’’ and ‘‘180-day’’ for ‘‘90day’’ each place those terms appear in
§ 1.401(a)–13(g)(4)(ii), § 1.401(a)–20, A–
3(b)(1), A–4, A–10(a), A–16, and A–
24(a)(1), § 1.402(f)–1, § 1.411(a)–11(c),
and § 1.417(e)–1(b).
Pursuant to section 101 of the
Reorganization Plan, the Secretary of
Treasury has the authority to issue
regulations under ERISA sections 203(e)
and 205. Thus, these proposed
regulations that apply to sections 402(f),
411(a)(11), and 417 of the Code would
apply as well for purposes of sections
203(e) and 205 of ERISA.
Proposed Effective/Applicability Date
These regulations are proposed to
become effective for notices provided
(and election periods beginning) on or
after the first day of the first plan year
beginning on or after January 1, 2010.
However, in no event will the
regulations become effective for notices
provided (and election periods
beginning) earlier than the first day of
the first plan year beginning 90 days
after publication of final regulations in
the Federal Register.
With respect to the regulations
relating to the notice of consequences of
failing to defer the receipt of
distributions, until these regulations
become effective, a plan will be treated
as complying if: (1) The plan complies
either with these proposed regulations
or with Q&A–32 and Q&A–33 in Notice
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2007–7; or (2) if the plan administrator
makes a reasonable attempt to comply
with the requirement that the
description of a participant’s right, if
any, to defer receipt of a distribution
shall also describe the consequences of
failing to defer such receipt.
With respect to the proposed
regulations relating to the expanded
applicable election period and the
expanded period for notices, plans may
rely on these proposed regulations for
notices provided (and election periods
beginning) during the period beginning
on the first day of the first plan year
beginning on or after January 1, 2007
and ending on the effective date of final
regulations.
Special Analyses
It has been determined that this notice
of proposed rulemaking is not a
significant regulatory action as defined
in Executive Order 12866. Therefore, a
regulatory assessment is not required. It
also has been determined that section
553(b) of the Administrative Procedure
Act (5 U.S.C. chapter 5) does not apply
to these regulations.
It is hereby certified that the
collection of information contained in
this regulation will not have a
significant economic impact on a
substantial number of small entities.
This certification is based on several
factors, including that the regulation
merely provides guidance to implement
a statutorily-required notice, and that
the incremental burden in the regulation
would be minimal because it only
requires including additional
information in notices already provided
by all of the affected entities.
Accordingly, a Regulatory Flexibility
Analysis under the Regulatory
Flexibility Act (5 U.S.C. chapter 6) is
not required. Pursuant to section 7805(f)
of the Code, this notice of proposed
rulemaking will be submitted to the
Chief Counsel for Advocacy of the Small
Business Administration for comment
on its impact on small business.
Comments and Public Hearing
Before these proposed regulations are
adopted as final regulations,
consideration will be given to any
written (one signed and eight (8) copies)
or electronic comments that are
submitted timely to the IRS. All
comments will be available for public
inspection and copying.
A public hearing has been scheduled
for Friday, February 20, 2009, at 10 a.m.
in the IRS Auditorium, Internal Revenue
Building, 1111 Constitution Avenue,
NW., Washington, DC. Due to building
security procedures, visitors must enter
at the Constitution Avenue entrance. In
addition, all visitors must present photo
identification to enter the building.
Because of access restrictions, visitors
will not be admitted beyond the
immediate entrance area more than 30
minutes before the hearing starts. For
information about having your name
placed on the building access list to
attend the hearing, see the FOR FURTHER
INFORMATION CONTACT section of this
preamble.
Persons who wish to present oral
comments at the hearing must submit
written or electronic comments by
January 7, 2009 and submit an outline
of the topics to be discussed and the
amount of time to be devoted to each
topic (a signed original and eight (8)
copies) by January 16, 2009. A period of
10 minutes will be allotted to each
person for making comments.
An agenda showing the scheduling of
the speakers will be prepared after the
deadline for receiving outlines has
passed. Copies of the agenda will be
available free of charge at the hearing.
Drafting Information
The principal author of these
regulations is Michael P. Brewer, Office
of Division Counsel/Associate Chief
Counsel (Tax Exempt and Government
Entities). However, other personnel
from the Office of Chief Counsel, IRS,
and the Department of the Treasury
participated in the development of these
regulations.
Proposed Amendments to the
Regulations
Accordingly, 26 CFR part 1 is
proposed to be amended as follows:
PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 continues to read as follows:
Authority: 26 U.S.C. 7805 * * *.
§ 1.401(a)–13; § 1.401(a)–20; § 1.402(f)–1;
§ 1.411(a)–11; § 1.417(e)–1 [Amended]
Par. 2. For each entry listed in the
‘‘Location’’ column, remove the
language in the ‘‘Remove’’ column and
add the language in the ‘‘Add’’ column
in its place.
Location
Remove
1.401(a)–13(g)(4)(ii), first sentence ........................................
1.401(a)–20, A–4, third sentence ...........................................
1.401(a)–20, A–10(a), fifth and sixth sentences .....................
1.401(a)–20, A–16, sixth sentence .........................................
1.401(a)–20, A–24(a)(1), fifth sentence ..................................
1.402(f)–1, A–2(a), first sentence ...........................................
1.411(a)–11(c)(2)(ii) ................................................................
1.411(a)–11(c)(2)(iii)(A), first sentence ...................................
1.417(e)–1(b)(3)(i) ...................................................................
1.417(e)–1(b)(3)(ii), first sentence ..........................................
1.417(e)–1(b)(3)(iii) .................................................................
1.417(e)–1(b)(3)(vi), second sentence ....................................
1.417(e)–1(b)(3)(vii) ................................................................
1.417(e)–1(b)(3)(vii) ................................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90 days ..................................................
90-day ....................................................
jlentini on PROD1PC65 with PROPOSALS
§ 1.411(a)–11
[Amended]
Par. 3. Section 1.411(a)–11 is
amended as follows:
1. The second sentence of paragraph
(c)(2)(i) is revised.
2. The second sentence of paragraph
(c)(2)(iii)(B)(3) is revised.
3. Paragraphs (c)(2)(vi) and (h) are
added.
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The additions and revisions read as
follows:
§ 1.411(a)–11 Restriction and valuation of
distributions.
*
*
*
*
*
(c) * * *
(2) Consent—(i) * * * In addition, so
long as a benefit is immediately
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180 days.
180 days.
180 days.
180 days.
180 days.
180 days.
180 days.
180 days.
180 days.
180 days.
180 days.
180 days.
180 days.
180-day.
distributable, a participant must be
informed of the right, if any, to defer
receipt of the distribution and of the
consequences of failing to defer such
receipt. * * *
*
*
*
*
*
(iii) * * *
(B) * * *
E:\FR\FM\09OCP1.SGM
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jlentini on PROD1PC65 with PROPOSALS
Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules
(3) * * * The summary described in
paragraph (c)(2)(iii)(B)(2) of this section
must advise the participant of the right,
if any, to defer receipt of the
distribution and of the consequences of
failing to defer such receipt, must set
forth a summary of the distribution
options under the plan, must refer the
participant to the most recent version of
the notice (and, in the case of a notice
provided in any document containing
information in addition to the notice,
must identify that document and must
provide a reasonable indication of
where the notice may be found in that
document, such as by index reference or
by section heading), and must advise
the participant that, upon request, a
copy of the notice will be provided
without charge.
*
*
*
*
*
(vi) Consequences of failing to defer—
(A) A notice under this paragraph (c)(2)
that is required to describe the
consequences of failing to defer receipt
of a distribution until it is no longer
immediately distributable must, to the
extent applicable under the plan and in
a manner designed to be easily
understood, provide the participant
with the information set out in
paragraphs (c)(2)(vi)(A)(1) through (5) of
this section and explain why it is
relevant to a decision whether to defer.
(1) A description of the following
federal tax implications of failing to
defer: differences in the timing of
inclusion in taxable income of an
immediately commencing distribution
that is not rolled over (or not eligible to
be rolled over) and a distribution that is
deferred until it is no longer
immediately distributable (including, as
applicable, differences in the taxation of
distributions of designated Roth
contributions within the meaning of
section 402A); application of the 10%
additional tax on certain distributions
before age 591⁄2 under section 72(t); and,
in the case of a defined contribution
plan, loss of the opportunity upon
immediate commencement for future
tax-favored treatment of earnings if the
distribution is not rolled over (or not
eligible to be rolled over) to an eligible
retirement plan described in section
402(c)(8)(B).
(2) In the case of a defined benefit
plan, a statement of the amount payable
to the participant under the normal form
of benefit both upon immediate
commencement and upon
commencement when the benefit is no
longer immediately distributable
(assuming no future benefit accruals).
The statement need not vary based on
the participant’s marital status if the
plan is permitted, pursuant to
VerDate Aug<31>2005
16:07 Oct 08, 2008
Jkt 217001
§ 1.417(a)(3)–1(c)(2)(ii), to provide a
QJSA explanation that does not vary
based on the participant’s marital status.
(3) In the case of a defined
contribution plan, a statement that some
currently available investment options
in the plan may not be generally
available on similar terms outside the
plan and contact information for
obtaining additional information on the
general availability outside the plan of
currently available investment options
in the plan.
(4) In the case of a defined
contribution plan, a statement that fees
and expenses (including administrative
or investment-related fees) outside the
plan may be different from fees and
expenses that apply to the participant’s
account and contact information for
obtaining additional information on the
fees and expenses that apply to the
participant’s account.
(5) An explanation of any provisions
of the plan (and provisions of an
accident or health plan maintained by
the employer) that could reasonably be
expected to materially affect a
participant’s decision whether to defer
receipt of the distribution. Such
provisions would include, for example:
plan terms under which a participant
who fails to defer may lose eligibility for
retiree health coverage or eligibility for
early retirement subsidies or social
security supplements; plan terms under
which the benefit of a rehired
participant who failed to defer may be
adversely affected by the decision not to
defer; and, in the case of a defined
contribution plan, plan terms under
which undistributed benefits that
otherwise are nonforfeitable become
forfeitable upon the participant’s death.
(B) Location of information;
incorporation by reference. In general,
the information required to be provided
in a notice under this paragraph
(c)(2)(vi) must appear together (for
example, in a list of consequences of
failing to defer). However, the notice
will not be treated as failing to satisfy
the requirements of this paragraph
(c)(2)(vi) merely because the notice
includes a cross-reference to where the
required information may be found in
notices or other information provided or
made available to the participant, as
long as the notice of consequences of
failing to defer includes a statement of
how the referenced information may be
obtained without charge and explains
why the referenced information is
relevant to a decision whether to defer.
*
*
*
*
*
(h) Consequences of Failing to Defer
Effective/Applicability Date. The
provisions in paragraph (c) of this
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59579
section that describe the requirement to
notify participants of the consequences
of failing to defer are effective for
notices provided on or after the first day
of the first plan year beginning on or
after January 1, 2010.
Linda E. Stiff,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. E8–23918 Filed 10–8–08; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 288
[DoD–2008–OS–0059; RIN 0790–AI29]
Office of the Secretary of Defense and
Joint Staff Freedom of Information Act
Program
Department of Defense.
Proposed rule.
AGENCY:
ACTION:
SUMMARY: This part establishes Office of
the Secretary of Defense (OSD) policy,
assigns responsibilities, and prescribes
procedures for the effective
administration of the Freedom of
Information Act (FOIA) Program in OSD
and the Joint Staff. This part
supplements and implements part 286
of 32 CFR, the DoD Freedom of
Information Act Regulation.
DATES: Comments must be received by
December 8, 2008.
ADDRESSES: You may submit comments,
identified by docket number and/or RIN
number and title, by any of the
following methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Federal Docket Management
System Office, 1160 Defense Pentagon,
Washington, DC 20301–1160.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
Federal Register document. The general
policy for comments and other
submissions from members of the public
is to make these submissions available
for public viewing on the Internet at
https://www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
FOR FURTHER INFORMATION CONTACT:
Dave Henshall, 703–696–3243.
SUPPLEMENTARY INFORMATION:
E:\FR\FM\09OCP1.SGM
09OCP1
]]>Agencies
[Federal Register Volume 73, Number 197 (Thursday, October 9, 2008)]
[Proposed Rules]
[Pages 59575-59579]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23918]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG-107318-08]
RIN 1545-BH75
Notice to Participants of Consequences of Failing To Defer
Receipt of Qualified Retirement Plan Distributions; Expansion of
Applicable Election Period and Period for Notices
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking and notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: This document contains proposed regulations under sections
402(f), 411(a)(11), and 417 of the Internal Revenue Code (Code). The
proposed regulations would provide that the notice required under
section 411(a)(11) to be provided to a participant of his or her right,
if any, to defer receipt of an immediately distributable benefit must
also describe the consequences of failing to defer receipt of the
distribution. The proposed regulations would also provide that the
applicable election period for waiving the qualified joint and survivor
annuity form of benefit under section 417 is the 180-day period ending
on the annuity starting date, and that a notice required to be provided
under section 402(f), section 411(a)(11), or section 417 may be
provided to a participant as much as 180 days before the annuity
starting date (or, for a notice under section 402(f), the distribution
date). These regulations would affect administrators of, employers
maintaining, participants in, and beneficiaries of tax-favored
retirement plans.
DATES: Written or electronic comments and requests to speak at the
public hearing must be received by January 7, 2009.
ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-107318-08), room
5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station,
Washington DC 20044. Submissions may be hand-delivered Monday through
Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-
107318-08), Courier's Desk, Internal Revenue Service, 1111 Constitution
Avenue, NW., Washington, DC, or sent electronically via the Federal
eRulemaking Portal at https://www.regulations.gov (IRS REG-107318-08).
FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Michael P.
Brewer at (202) 622-6090; concerning submission of comments or to
request to speak at the public hearing, Funmi Taylor at (202) 622-7180
(not toll-free numbers).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information contained in this notice of proposed
rulemaking has been submitted to the Office of Management and Budget
for review in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)). Comments on the collection of information should be
sent to the Office of Management and Budget, Attn: Desk Officer for the
Department of the Treasury, Office of Information and Regulatory
Affairs, Washington, DC 20503, with copies to the Internal Revenue
Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP;
Washington, DC 20224. Comments on the collection of information should
be received by December 8, 2008. Comments are specifically requested
concerning:
Whether the proposed collection of information is necessary for the
proper performance of the functions of the Internal Revenue Service,
including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed
collection of information;
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the proposed collections of
information may be minimized, including through the application of
automated collection techniques or other forms of information
technology; and
Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of service to provide information.
The collection of information in these proposed regulations is in
Sec. 1.411(a)-11(c)(2) of the Income Tax Regulations. This collection
of information is required to comply with the statutory
[[Page 59576]]
notice requirements of section 411(a), and is expected to be included
in the notices currently provided to employees that inform them of
their rights and benefits under the plan. The likely recordkeepers are
businesses or other for-profit institutions and nonprofit institutions
and organizations.
Estimated total annual recordkeeping burden: 100,000 hours.
Estimated average annual burden hours per recordkeeper: 1 hour.
Estimated number of recordkeepers: 100,000.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by the Office of Management and Budget.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and
tax return information are confidential, as required by 26 U.S.C. 6103.
Background
A. Notice of Consequences of Failing To Defer
Section 411(a)(11)(A) provides that, if the present value of any
nonforfeitable accrued benefit exceeds $5,000, a qualified plan must
provide that such benefit may not be immediately distributed without
the consent of the participant. Similarly, section 203(e) of the
Employee Retirement Income Security Act of 1974, as amended (ERISA),
provides that if the present value of any nonforfeitable accrued
benefit with respect to a participant in a plan exceeds $5,000, the
benefit may not be immediately distributed without the consent of the
participant.
Section 1102(b)(1) of the Pension Protection Act of 2006 (PPA '06),
109 Public Law 280, 120 Stat. 780, instructs the Secretary of the
Treasury to modify the regulations under section 411(a)(11) of the Code
``to provide that the description of a participant's right, if any, to
defer receipt of a distribution shall also describe the consequences of
failing to defer such receipt.'' Section 1102(b)(2)(A) of PPA '06
provides that the modifications required by section 1102(b)(1) of PPA
'06 shall apply to years beginning after December 31, 2006. Section
1102(b)(2)(B) of PPA '06, however, states that a plan shall not be
treated as failing to meet the requirements of section 411(a)(11) with
respect to any description of the consequences of failing to defer
provided ``within 90 days after the Secretary of the Treasury issues
the modifications required by [section 1102(b)(1) of PPA '06] if the
plan administrator makes a reasonable attempt to comply with such
requirements.''
Section 1.411(a)-11(c)(2)(i) states that, in order for a plan to
obtain valid consent under section 411(a)(11), ``so long as a benefit
is immediately distributable, a participant must be informed of the
right, if any, to defer receipt of the distribution.'' Section
1.411(a)-11(c)(4) states that a distribution is immediately
distributable prior to the later of the time a participant has attained
normal retirement age or age 62.
Q&A-32 of Notice 2007-7, 2007-5 I.R.B. 395, provides that a plan
administrator is required to revise the notice required under section
411 to reflect the modifications made by section 1102(b) of PPA '06 for
notices provided in plan years beginning after December 31, 2006.
Notice 2007-7 further provides that, pursuant to section 1102(b)(2)(B)
of PPA '06, a plan will not be treated as failing to meet the new
requirements of section 1102(b) of PPA '06 if the plan administrator
makes a reasonable attempt to comply with the new requirements with
respect to a notice that is provided prior to the 90th day after the
issuance of regulations reflecting the modifications required by such
section 1102(b) of PPA '06. See Sec. 601.601(b)(2)(ii)(b).
Q&A-33 of Notice 2007-7 includes a safe harbor that would be
considered a reasonable attempt to comply with the requirement in
section 1102(b)(1) of PPA '06 that a description of a participant's
right to defer receipt of a distribution include a description of the
consequences of failing to defer. In particular, Q&A-33 provides that a
description that is written in a manner reasonably calculated to be
understood by the average participant and that includes the following
information is a reasonable attempt to comply with the requirements of
section 1102(b)(2)(B) of PPA '06: (a) In the case of a defined benefit
plan, a description of how much larger benefits will be if the
commencement of distributions is deferred; (b) in the case of a defined
contribution plan, a description indicating the investment options
available under the plan (including fees) that will be available if
distributions are deferred; and (c) the portion of the summary plan
description that contains any special rules that might materially
affect a participant's decision to defer. For purposes of clause (a), a
plan administrator can use a description that includes the financial
effect of deferring distributions, as described in Sec. 1.417(a)(3)-
1(d)(2)(i), based solely on the normal form of benefit.
Q&A-31 of Notice 2007-7 provides that the provisions of section
1102 apply to plan years that begin after December 31, 2006. Q&A-31
explains that this means that the new rules relating to the content of
the notices apply only to notices issued in those plan years, without
regard to the annuity starting date for the distributions.
B. Expansion of Applicable Election Period
Section 401(a)(11)(A)(i) provides that, except as provided in
section 417, a plan that is qualified under section 401(a) must provide
the accrued benefit payable to a vested participant who does not die
before the annuity starting date in the form of a qualified joint and
survivor annuity.
Section 417(a)(1)(A) provides that, in general, a plan satisfies
section 401(a)(11) only if each participant may elect at any time
during the ``applicable election period'' to waive the qualified joint
and survivor annuity form of benefit (and to revoke the waiver), and
certain other requirements are satisfied. Before PPA '06, section
417(a)(6)(A) provided that the ``applicable election period'' for a
participant to waive the qualified joint and survivor annuity form of
distribution was the 90-day period ending on the annuity starting date.
Section 1102(a)(1)(A) of PPA '06 amended section 417(a)(6)(A) by
changing the 90-day ``applicable election period'' for electing a
distribution subject to the qualified joint and survivor annuity (QJSA)
rules of sections 401(a)(11) and 417 in a form other than a QJSA to a
180-day applicable election period. Section 1102(a)(2)(A) of PPA '06
made a parallel amendment to section 205(c)(7)(A) of ERISA by striking
``90-day'' and inserting ``180-day''.
Sections 1102(a)(1)(B) and 1102(a)(2)(B) of PPA '06 provide that
the Secretary of the Treasury shall modify the regulations relating to
section 417 of the Code and section 205 of ERISA by substituting ``180
days'' for ``90 days'' each place it appears.
Section 1102(a)(3) of PPA '06 provides that the amendments to the
applicable election period apply to years beginning after December 31,
2006.
C. Expansion of Period for Notices
Section 417(a)(3)(A) of the Code and section 205(c)(3)(A) of ERISA
provide that a plan must provide to each
[[Page 59577]]
participant, ``within a reasonable period of time before the annuity
starting date'' and consistent with such regulations as the Secretary
of the Treasury may prescribe, a written explanation that describes the
terms and conditions of the qualified joint and survivor annuity and
certain other information. Similarly, section 402(f)(1) provides that a
plan administrator must, ``within a reasonable period of time'' before
making an eligible rollover distribution, provide to recipients an
explanation of certain tax consequences of the distribution.
Section 1102(a)(1)(B) of PPA '06 provides that the Secretary of the
Treasury shall modify the regulations under sections 402(f),
411(a)(11), and 417 by substituting ``180 days'' for ``90 days'' each
place it appears in Sec. Sec. 1.402(f)-1, 1.411(a)-11(c), and
1.417(e)-1(b). Similarly, section 1102(a)(2)(B) of PPA '06 provides
that the Secretary of the Treasury shall modify the regulations
relating to sections 203(e) and 205 of ERISA by substituting ``180
days'' for ``90 days'' each place it appears.
Section 1102(a)(3) provides that the amendments to the notice
periods apply to years beginning after December 31, 2006. Q&A-31 of
Notice 2007-7 explains that the 180-day period for distributing notices
applies to notices distributed in a plan year that begins after
December 31, 2006.
D. Requirements under ERISA
ERISA section 203(e) is the parallel provision to section
411(a)(11) of the Code and ERISA section 205 is the ERISA parallel to
section 417 of the Code. Pursuant to section 101 of Reorganization Plan
No. 4 of 1978, 29 U.S.C. 1001nt (the Reorganization Plan), the
Secretary of the Treasury generally has authority to issue regulations
under parts 2 and 3 of subtitle B of title I of ERISA, including
sections 203(e) and 205 of ERISA. Thus, the changes required by section
1102 of PPA '06 would apply as well for purposes of ERISA sections
203(e) and 205.
Explanation of Provisions
A. Notice of Consequences of Failing To Defer
These proposed regulations would provide that the notice required
by section 411(a)(11) advising a participant of the right, if any, to
defer receipt of a distribution must also inform the participant of the
consequences of failing to defer such receipt. The proposed regulations
would also provide guidance on the relevant information that must be
provided to a participant in order to satisfy the requirement that the
participant be notified of the consequences of failing to defer.
Specifically, these proposed regulations would require that the
participant be provided a description of specified federal tax
implications of failing to defer and, in the case of a defined benefit
plan, a statement of the amount payable to the participant under the
normal form of benefit both upon immediate commencement and when the
benefit is no longer immediately distributable (that is, the later of
age 62 or attainment of normal retirement age). Section 1.417(a)(3)-
1(c)(2)(ii) permits a plan to provide participants with a QJSA
explanation, which does not vary based on the participant's marital
status, of the relative value of optional forms of benefit compared to
the value of a QJSA. These proposed regulations would permit the
statement of the amount payable to not be based on the participant's
marital status, to the extent the plan is permitted under Sec.
1.417(a)(3)-1(c)(2)(ii) to use a QJSA explanation that does not vary
based on whether the participant is married or unmarried.
The proposed regulations would also require the information in the
notice to include, in the case of a defined contribution plan, a
statement that some currently available investment options in the plan
may not be generally available on similar terms outside the plan and
contact information for obtaining additional information on the general
availability outside the plan of currently available investment options
in the plan. In addition, the proposed regulations would require the
notice to include, in the case of a defined contribution plan, a
statement that fees and expenses (including administrative or
investment-related fees) outside the plan may be different from fees
and expenses that apply to the participant's account and contact
information for obtaining information on such fees.
The proposed regulations also include an additional category of
information that must be provided relating to any provisions of the
plan (and provisions of any accident or health plan maintained by the
employer) that could reasonably be expected to materially affect a
participant's decision whether to defer receipt of the distribution.
Thus, for example, the proposed regulations would require a description
of the eligibility requirements for retiree health benefits if such
benefits are limited to participants who have an undistributed benefit
under the employer's retirement plan.
In general, the proposed regulations would also provide that the
required information regarding the consequences of a participant's
failing to defer receipt of a distribution must appear together.
However, the proposed regulations would permit a cross-reference to
where the required information may be found in notices or other
information provided or made available to the participant, as long as
the notice of consequences of failing to defer includes a statement of
how the referenced information may be obtained without charge and
explains why the referenced information is relevant to a decision
whether to defer.
B. Expansion of Applicable Election Period and Period for Notices
Consistent with sections 1102(a)(1)(A) and (1)(B) and 1102(a)(2)(A)
and (2)(B) of PPA '06, the proposed regulations would both (1) expand
the definition of applicable election period to up to 180 days, and (2)
expand the time period for notices issued under sections 402(f),
411(a)(11), and 417 to allow the notices to be issued up to 180 days
prior to the annuity starting date (or, in the case of a notice under
section 402(f), the date of distribution). Specifically, the proposed
regulations would substitute ``180 days'' for ``90 days'' and ``180-
day'' for ``90-day'' each place those terms appear in Sec. 1.401(a)-
13(g)(4)(ii), Sec. 1.401(a)-20, A-3(b)(1), A-4, A-10(a), A-16, and A-
24(a)(1), Sec. 1.402(f)-1, Sec. 1.411(a)-11(c), and Sec. 1.417(e)-
1(b).
Pursuant to section 101 of the Reorganization Plan, the Secretary
of Treasury has the authority to issue regulations under ERISA sections
203(e) and 205. Thus, these proposed regulations that apply to sections
402(f), 411(a)(11), and 417 of the Code would apply as well for
purposes of sections 203(e) and 205 of ERISA.
Proposed Effective/Applicability Date
These regulations are proposed to become effective for notices
provided (and election periods beginning) on or after the first day of
the first plan year beginning on or after January 1, 2010. However, in
no event will the regulations become effective for notices provided
(and election periods beginning) earlier than the first day of the
first plan year beginning 90 days after publication of final
regulations in the Federal Register.
With respect to the regulations relating to the notice of
consequences of failing to defer the receipt of distributions, until
these regulations become effective, a plan will be treated as complying
if: (1) The plan complies either with these proposed regulations or
with Q&A-32 and Q&A-33 in Notice
[[Page 59578]]
2007-7; or (2) if the plan administrator makes a reasonable attempt to
comply with the requirement that the description of a participant's
right, if any, to defer receipt of a distribution shall also describe
the consequences of failing to defer such receipt.
With respect to the proposed regulations relating to the expanded
applicable election period and the expanded period for notices, plans
may rely on these proposed regulations for notices provided (and
election periods beginning) during the period beginning on the first
day of the first plan year beginning on or after January 1, 2007 and
ending on the effective date of final regulations.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in Executive Order
12866. Therefore, a regulatory assessment is not required. It also has
been determined that section 553(b) of the Administrative Procedure Act
(5 U.S.C. chapter 5) does not apply to these regulations.
It is hereby certified that the collection of information contained
in this regulation will not have a significant economic impact on a
substantial number of small entities. This certification is based on
several factors, including that the regulation merely provides guidance
to implement a statutorily-required notice, and that the incremental
burden in the regulation would be minimal because it only requires
including additional information in notices already provided by all of
the affected entities. Accordingly, a Regulatory Flexibility Analysis
under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not
required. Pursuant to section 7805(f) of the Code, this notice of
proposed rulemaking will be submitted to the Chief Counsel for Advocacy
of the Small Business Administration for comment on its impact on small
business.
Comments and Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written (one signed and eight (8)
copies) or electronic comments that are submitted timely to the IRS.
All comments will be available for public inspection and copying.
A public hearing has been scheduled for Friday, February 20, 2009,
at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111
Constitution Avenue, NW., Washington, DC. Due to building security
procedures, visitors must enter at the Constitution Avenue entrance. In
addition, all visitors must present photo identification to enter the
building. Because of access restrictions, visitors will not be admitted
beyond the immediate entrance area more than 30 minutes before the
hearing starts. For information about having your name placed on the
building access list to attend the hearing, see the FOR FURTHER
INFORMATION CONTACT section of this preamble.
Persons who wish to present oral comments at the hearing must
submit written or electronic comments by January 7, 2009 and submit an
outline of the topics to be discussed and the amount of time to be
devoted to each topic (a signed original and eight (8) copies) by
January 16, 2009. A period of 10 minutes will be allotted to each
person for making comments.
An agenda showing the scheduling of the speakers will be prepared
after the deadline for receiving outlines has passed. Copies of the
agenda will be available free of charge at the hearing.
Drafting Information
The principal author of these regulations is Michael P. Brewer,
Office of Division Counsel/Associate Chief Counsel (Tax Exempt and
Government Entities). However, other personnel from the Office of Chief
Counsel, IRS, and the Department of the Treasury participated in the
development of these regulations.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read as
follows:
Authority: 26 U.S.C. 7805 * * *.
Sec. 1.401(a)-13; Sec. 1.401(a)-20; Sec. 1.402(f)-1; Sec. 1.411(a)-
11; Sec. 1.417(e)-1 [Amended]
Par. 2. For each entry listed in the ``Location'' column, remove
the language in the ``Remove'' column and add the language in the
``Add'' column in its place.
------------------------------------------------------------------------
Location Remove Add
------------------------------------------------------------------------
1.401(a)-13(g)(4)(ii), first 90 days........... 180 days.
sentence.
1.401(a)-20, A-4, third sentence 90 days........... 180 days.
1.401(a)-20, A-10(a), fifth and 90 days........... 180 days.
sixth sentences.
1.401(a)-20, A-16, sixth 90 days........... 180 days.
sentence.
1.401(a)-20, A-24(a)(1), fifth 90 days........... 180 days.
sentence.
1.402(f)-1, A-2(a), first 90 days........... 180 days.
sentence.
1.411(a)-11(c)(2)(ii)........... 90 days........... 180 days.
1.411(a)-11(c)(2)(iii)(A), first 90 days........... 180 days.
sentence.
1.417(e)-1(b)(3)(i)............. 90 days........... 180 days.
1.417(e)-1(b)(3)(ii), first 90 days........... 180 days.
sentence.
1.417(e)-1(b)(3)(iii)........... 90 days........... 180 days.
1.417(e)-1(b)(3)(vi), second 90 days........... 180 days.
sentence.
1.417(e)-1(b)(3)(vii)........... 90 days........... 180 days.
1.417(e)-1(b)(3)(vii)........... 90-day............ 180-day.
------------------------------------------------------------------------
Sec. 1.411(a)-11 [Amended]
Par. 3. Section 1.411(a)-11 is amended as follows:
1. The second sentence of paragraph (c)(2)(i) is revised.
2. The second sentence of paragraph (c)(2)(iii)(B)(3) is revised.
3. Paragraphs (c)(2)(vi) and (h) are added.
The additions and revisions read as follows:
Sec. 1.411(a)-11 Restriction and valuation of distributions.
* * * * *
(c) * * *
(2) Consent--(i) * * * In addition, so long as a benefit is
immediately distributable, a participant must be informed of the right,
if any, to defer receipt of the distribution and of the consequences of
failing to defer such receipt. * * *
* * * * *
(iii) * * *
(B) * * *
[[Page 59579]]
(3) * * * The summary described in paragraph (c)(2)(iii)(B)(2) of
this section must advise the participant of the right, if any, to defer
receipt of the distribution and of the consequences of failing to defer
such receipt, must set forth a summary of the distribution options
under the plan, must refer the participant to the most recent version
of the notice (and, in the case of a notice provided in any document
containing information in addition to the notice, must identify that
document and must provide a reasonable indication of where the notice
may be found in that document, such as by index reference or by section
heading), and must advise the participant that, upon request, a copy of
the notice will be provided without charge.
* * * * *
(vi) Consequences of failing to defer--(A) A notice under this
paragraph (c)(2) that is required to describe the consequences of
failing to defer receipt of a distribution until it is no longer
immediately distributable must, to the extent applicable under the plan
and in a manner designed to be easily understood, provide the
participant with the information set out in paragraphs (c)(2)(vi)(A)(1)
through (5) of this section and explain why it is relevant to a
decision whether to defer.
(1) A description of the following federal tax implications of
failing to defer: differences in the timing of inclusion in taxable
income of an immediately commencing distribution that is not rolled
over (or not eligible to be rolled over) and a distribution that is
deferred until it is no longer immediately distributable (including, as
applicable, differences in the taxation of distributions of designated
Roth contributions within the meaning of section 402A); application of
the 10% additional tax on certain distributions before age 59\1/2\
under section 72(t); and, in the case of a defined contribution plan,
loss of the opportunity upon immediate commencement for future tax-
favored treatment of earnings if the distribution is not rolled over
(or not eligible to be rolled over) to an eligible retirement plan
described in section 402(c)(8)(B).
(2) In the case of a defined benefit plan, a statement of the
amount payable to the participant under the normal form of benefit both
upon immediate commencement and upon commencement when the benefit is
no longer immediately distributable (assuming no future benefit
accruals). The statement need not vary based on the participant's
marital status if the plan is permitted, pursuant to Sec. 1.417(a)(3)-
1(c)(2)(ii), to provide a QJSA explanation that does not vary based on
the participant's marital status.
(3) In the case of a defined contribution plan, a statement that
some currently available investment options in the plan may not be
generally available on similar terms outside the plan and contact
information for obtaining additional information on the general
availability outside the plan of currently available investment options
in the plan.
(4) In the case of a defined contribution plan, a statement that
fees and expenses (including administrative or investment-related fees)
outside the plan may be different from fees and expenses that apply to
the participant's account and contact information for obtaining
additional information on the fees and expenses that apply to the
participant's account.
(5) An explanation of any provisions of the plan (and provisions of
an accident or health plan maintained by the employer) that could
reasonably be expected to materially affect a participant's decision
whether to defer receipt of the distribution. Such provisions would
include, for example: plan terms under which a participant who fails to
defer may lose eligibility for retiree health coverage or eligibility
for early retirement subsidies or social security supplements; plan
terms under which the benefit of a rehired participant who failed to
defer may be adversely affected by the decision not to defer; and, in
the case of a defined contribution plan, plan terms under which
undistributed benefits that otherwise are nonforfeitable become
forfeitable upon the participant's death.
(B) Location of information; incorporation by reference. In
general, the information required to be provided in a notice under this
paragraph (c)(2)(vi) must appear together (for example, in a list of
consequences of failing to defer). However, the notice will not be
treated as failing to satisfy the requirements of this paragraph
(c)(2)(vi) merely because the notice includes a cross-reference to
where the required information may be found in notices or other
information provided or made available to the participant, as long as
the notice of consequences of failing to defer includes a statement of
how the referenced information may be obtained without charge and
explains why the referenced information is relevant to a decision
whether to defer.
* * * * *
(h) Consequences of Failing to Defer Effective/Applicability Date.
The provisions in paragraph (c) of this section that describe the
requirement to notify participants of the consequences of failing to
defer are effective for notices provided on or after the first day of
the first plan year beginning on or after January 1, 2010.
Linda E. Stiff,
Deputy Commissioner for Services and Enforcement.
[FR Doc. E8-23918 Filed 10-8-08; 8:45 am]
BILLING CODE 4830-01-P
