2018 is shaping up to be a record setting year for mergers and acquisition activity with plenty of opportunities for advisors to help clients evaluate some key issues related to their retirement plans. Whether your client is entering into a corporate merger, acquisition, liquidation, consolidation, or spin-off, there can be significant impacts on the retirement plans involved, and you can help your client avoid problems that are often overlooked. Flagging these issues for your clients now will help them avoid headaches and potential tax and other penalties later.
Here are some things consider:
1. Transaction Transaction structure
M&A transactions have a big impact on the parties’ retirement plans that can be easily overlooked. In an asset purchase, the buyer purchases assets of the target company and generally wants to limit or eliminate its liability for any issues associated with the seller’s plan. That can usually be accomplished by terminating the target company’s retirement plan and starting a new plan to avoid becoming a successor plan sponsor. In a stock sale, the buyer purchases assets and liabilities and the purchased company becomes a subsidiary of the buyer and part of its controlled group. In a merger, the buyer and seller form a surviving entity and any obligations owned or owed by either company are now owned and owed by the survivor.
2. Service provider contracts, collective bargaining agreements, and other important documents
The buyer should know that the target company has been operating its plan in compliance with legal and regulatory requirements and can learn that through a document review of the plan documents and all amendments, nondiscrimination test results, group annuity contracts, most recent determination letter (which will verify that the plan has been qualified, thereby avoiding the potential consequences of mixing non-qualified assets with qualified assets), and most recent SPD and SMM to verify what information has been communicated to participants and could become binding on the sponsor. One often overlooked area is the review of existing contracts with record keepers, custodians, and collective bargaining agreements to determine whether there are any advance notice requirements before terminating those relationships, any required contribution increases or termination fees, or any other restrictions.
3. Investment lineup
The plans involved in a transaction will rarely have the same investment options as the buying/merging company. Review the lineup carefully to evaluate any fees or other restrictions.
4. Protected benefits
Plans from different companies will also likely have different plan features. The plans’ provisions must be analyzed to ensure that the transaction does not violate the anti-cutback rule.
5. Controlled groups and coverage testing
A transaction may result in the seller becoming a subsidiary and part of the controlled group of the buyer. That means that the buyer’s compliance testing must include the subsidiary’s employees unless they are excludible. Employees of the purchased organization may need to be given meaningful benefits in order for the plan to satisfy compliance testing.
6. Service crediting rules
A new organization must consider whether – and to what extent – an employee’s service with the prior organization counts for eligibility and vesting in a new plan.
7. Transition relief
A plan may have a limited period of time before coverage testing is required if three conditions are met: the transaction causes a company to become or cease to be part of a controlled group, the plan passed coverage tests before the transaction, and if there weren’t any significant changes in the plan features or coverage of the plan. If those conditions are satisfied, then the plan will be deemed to meet coverage requirements until the end of the plan year after the year of the transaction. Plan amendments made after the transaction could end that transition relief period.
8. Same desk and successor sponsor rule
The seller’s plan might be unable to terminate if the new entity is a continuation of the old one. Where the employee performs the same work in the same location, even if there has been a formal change in the employer name, the same desk rule applies and the seller’s plan may have to retain the accounts and continue operating the plan. Additionally, the buyer may be unable to offer a new plan right away if it is considered to really be a successor to the seller.
If a plan is terminating, the participant’s retirement plan balance must be distributed with an offset taken for the amount of the outstanding loan amount. The participant needs to roll that distribution to an IRA or other qualified retirement plan in order to avoid penalties for an early withdrawal. The buyer may consider making alternative arrangements to ease the burden on participants with outstanding loans.
10. Missing participants
All plan assets must be distributed following a plan termination. Sponsors should build in additional time and resources to locate terminated participants whose addresses may have changed. The IRS recently issued guidance about how to deal with these missing participants.
11. Different plan types
Issues can arise when a transaction involves different plan types (eg: defined benefit plans, defined contribution plans, safe harbor and non-safe harbor plans), especially if one of them is a Qualified Automatic Contribution Arrangement (QACA) safe harbor plan. By design, those plans require automatic enrollment of all eligible employees who have not made an affirmative election. If the surviving plan is a QACA plan, the sponsor must make sure all requirements are met in enrolling the acquired employee population.
12. Forfeiture accounts
The acquired plan may have a balance in a forfeiture account, which may need to be depleted before the transaction closes. The plan may also address what happens to funds remaining in the account, whether they become assets of the new plan, or can be used to offset plan expenses or other permissible purposes.
13. Excess contributions
Transactions may cause one of the plans to have a short plan year and the sponsor or participants of the acquired plan may have overfunded the plan. Buyers should be on the lookout for participants who are approaching the IRS annual contribution limits.
14. Participant communications
Communicating with participants plays a critical role in creating a smooth experience. In addition to distributing legally required notices, sponsors should send participant-friendly communications to educate participants about the plan and their overall benefits.
Going through M&A activity can be overwhelming enough. It’s important for your clients to have a trusted source who can walk them through the implications for their retirement plans, and proactively addressing these potential pitfalls can go a long way.