Category Archives: Employee Benefit Plans

Avoid ERISA Litigation

Avoid ERISA litigation with attention to common red flags

ERISAAny size retirement plan can run into serious trouble when sponsors aren’t careful. With some planning, though, your qualified retirement plan doesn’t have to be the target of ERISA litigation. Awareness of some of the most common red flags leading to litigation might be helpful.

Reasonable expenses
Of course, you can’t assure consistently strong investment performance. But plan sponsors can — and must — ensure that expenses are reasonable.

When your plan’s investment portfolios are performing well, it’s easy to pay less attention to the recordkeeping costs and investment management fees. But when performance is subpar, out-of-line expenses stick out like the proverbial sore thumb. Make sure you schedule regular, independent reviews of your plan expenses and fees every three to five years as part of your due diligence.

Opaque fee structures
In the past, complex and opaque fee structures such as revenue-sharing arrangements between asset managers and third-party administrators made it harder to get a handle on cost. But with the U.S. Department of Labor’s fee disclosure regulations now in their fourth year, pleading ignorance is no excuse. In fact, it never really was.

Mutual fund shares with built-in revenue sharing features still exist but, with required disclosure statements, it’s easier for you (and plan participants) to understand what they are. Although these built-in revenue sharing features aren’t inherently bad, they tend to be associated with funds that have higher expense charges.

In some plan fee litigation, courts have deemed fee-sharing arrangements a payoff to an administrator to recommend those funds, subordinating its assessment of the funds’ merits as sound investments.

Bundled services
Another expense-related red flag that could trigger litigation is exclusive use of a bundled plan provider’s investment funds. This also can raise questions about the effort that you put into investment performance evaluation.

So if you use only a bundled provider’s funds, you could give the appearance of not performing your fiduciary duty to seek out the most appropriate and competitively priced funds. And in fact, the odds are slim that one bundled provider has best-of-class funds in all of your desired investment strategy categories and asset classes. When retaining a bundled provider, question whether the recommendation of primarily proprietary funds could result in a conflict of interest if better performing and lower cost funds are available on their platform.

Share classes
Even when your plan’s investment lineup features funds from multiple asset management companies, you could be inadvertently flying a red flag if the funds in your investment menu are in an expensive share class. Individual investors, unless they have very deep pockets, generally have access to only retail-priced share classes. In contrast, retirement plans, even small ones, typically can use more competitively priced institutional share classes. The failure to use institutionally priced share classes has been at the heart of many class actions against plan sponsors.

Different share classes of the same mutual fund have different ticker symbols; that’s one easy way to determine what’s in the portfolio. Fund companies that offer shares with sales loads typically offer more variations, with “A,” “B” and “C” categories of retail shares, and an institutionally priced “I” share class without embedded sales charges.

Having some high-cost investments in your fund lineup isn’t in itself a reason that you’ll be deemed to have breached your fiduciary duties. There may indeed be good reasons to include them, notwithstanding the higher costs.

Investment policy statements
The concept of “procedural prudence” is embedded in ERISA and case law. This means plan sponsors must establish — and follow — policies and procedures to safeguard participants’ interests and set the criteria used to evaluate vendors, including asset managers.

Create an investment policy statement (IPS) to articulate your vision for plan investments overall, and the investment options you want to make available to participants. The IPS should clearly state:

  • What kind of assets you’ll include in investment options,
  • The degree of investment risk and volatility that’s acceptable,
  • How you’ll assess investment performance, and
  • When you’ll change managers.

Although having an IPS isn’t obligatory, doing so can show that you’re exercising procedural prudence — provided you can document your compliance with it. Merely signaling prudence won’t get you off the hook; following carefully crafted procedures and policies will go a long way toward preventing missteps that could lead to litigation in the first place. If you already have an IPS, be sure to follow it.

Next steps
Avoiding ERISA litigation is on every plan sponsor’s wish list. Reviewing expenses, fee structures and bundled services, and creating and following an IPS, can help you achieve this. Start by making periodic review of these areas the norm, in good times and bad.

Our advice is:  Don’t go it alone. Contact George Pickard, CPA, Ciuni & Panichi, Inc. Accounting and Audit Senior Manager, at 216-831-7171 or for help with your plan. His expertise includes performing your plan audit, advising you on compliance issues and helping to avoid litigation.

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What if You Find a Mistake in Your Retirement Plan?

How common is this? How can you try to correct it if it occurs?

Provided by Dane A. Wilson, Wealth Management Advisor

401(k) 403(b) audit SSAEYour latest retirement plan account statement arrives in your email inbox. You take a look at it – and something seems amiss. “That can’t be right,” you say to yourself. There must be some kind of mistake. Who should you talk to about this? Who can fix it?

Mistakes do happen with retirement plans. As a consultant to these programs told the trade journal PLANSPONSOR, they are “ubiquitous.” In fact, they are so prevalent that the Internal Revenue Service devotes more than 20 web pages to helping employers fix them over at,2

A small business has much on its collective mind, and sometimes its retirement savings program may get short shrift. Errors may occur regarding ongoing salary deferral amounts, plan participant loans, or company matches when an employee’s pay is boosted by tips or bonuses. In the case of traditional pension plans, an employer may even pay the retired worker too much.

How can you detect mistakes? Look at your paystubs consistently to make sure your account balance reflects your contributions. This will not be a direct relationship because of compound interest and yield over the years, but if something is really off, it should be evident. If you happen to have taken a loan from your plan, check to see that the balance reflects this. If you have changed your investment mix or the percentage of salary you defer into the plan per paycheck, examine your account statements over the next several months or year to confirm that these changes are carried out.

How can you try to fix these errors? You should turn to the plan sponsor (your employer) first. Approach your employer’s human resources department according to procedure. Read the rules for addressing such mistakes within the summary plan description (the booklet about the plan that you should have received at or shortly after your enrollment) and bring your account statements with you. Your employer will want to know about any potential mistake, because if it is not corrected, it could mean trouble with the IRS.1,3

About 40% of all workplace retirement plans in America are sponsored by companies with less than 10 employees. In such cases, your human resources contact may, effectively, be your boss. How should you bring up such a delicate matter to him or her?3

One, meet with your boss privately and be very polite. Maintain a pleasant attitude. Avoid appearing disgruntled. The conversation could awaken your boss to the need for better administration, better supervision of the plan.

If the answers you get at work don’t seem adequate, then contact the plan provider (the investment firm that furnishes the plan for your employer). You could also ask the financial professional who consults you to look into the matter on your behalf.

If you have retired after participating in a pension plan and you wish to challenge what you feel is a mistake, you may want to contact the Pension Rights Center at 888-420-6550 or via its website,

Dane A. Wilson may be reached at 216-831-7171 or

This material was prepared by MarketingPro, Inc., and does not necessarily represent the views of the presenting party, nor their affiliates. This information has been derived from sources believed to be accurate. Please note – investing involves risk, and past performance is no guarantee of future results. The publisher is not engaged in rendering legal, accounting or other professional services. If assistance is needed, the reader is advised to engage the services of a competent professional. This information should not be construed as investment, tax or legal advice and may not be relied on for the purpose of avoiding any Federal tax penalty. This is neither a solicitation nor recommendation to purchase or sell any investment or insurance product or service, and should not be relied upon as such. All indices are unmanaged and are not illustrative of any particular investment.
  Securities offered through 1st Global Capital Corp., Member FINRA/SIPC

Investment returns fluctuate and there is no assurance that a single rate of return will be sustained over an extended period of time. Investments are subject to market risks including the potential loss of principal invested
1 – [6/1/15]
2 – [9/15/16]
3 – [1/8/14]
4 – [10/24/16]


IRS Extends Affordable Care Act Reporting Deadlines

Welcome Relief for Employers

By Jeffrey R. Spencer, CPA, Principal, Ciuni & Panichi, Inc.

Jeff SpencerThe Internal Revenue Service (“IRS”) has issued Notice 2016-4 which automatically extends the due dates of the new Affordable Care Act (“ACA”) reporting forms for the 2015 calendar year.  The extension applies to IRS Forms 1094/1095-B (Issuer of Minimum Essential Coverage) and to IRS Forms 1094/1095-C (Applicable Large Employer).

In their Notice, the IRS acknowledged that some Applicable Large Employers (generally employers with 50 or more full-time employees) and some coverage providers need additional time to implement systems to properly capture and report the necessary information to individuals and the IRS.

Therefore, the extended deadline for furnishing the 2015 Form 1095-B and 1095-C to individuals is March 31, 2016 (previously February 1, 2016).

The extended deadline for filing Forms 1094/1095-B and Forms 1094/1095-C with the IRS is June 30, 2016 if filed electronically (previously March 31, 2016).  However, if filing less than 250 forms and filing on paper, then the extended deadline is May 31, 2016 (previously February 29, 2016).
Since these forms have potential tax implications for individuals, the IRS is encouraging employers and coverage providers to furnish the statements and file these information returns as soon as they are completed.  If you are using a third-party vendor to assist with these ACA filings, then you should discuss the extended filing deadlines with the vendor and determine whether the forms will be filed using the original or the extended due dates.

It is very important for employers to determine whether or not these filings apply to them, and if they do apply, that they make a good faith effort to comply with them.  The IRS can assess substantial penalties for noncompliance with these new reporting requirements.

Please contact Jeff Spencer at 216-831-7171 or for more information on this topic.

Jeff Spencer is a Tax Principal at Ciuni & Panichi, Inc., and he is the head of the employee benefits tax services group.

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© 2015

Now’s the Time to make Changes to your Retirement Plan

Start the Process Now

By Jeffrey R. Spencer, CPA, Principal, Ciuni & Panichi, Inc.

Jeff SpencerMost defined contribution retirement plans, such as 401(k), profit sharing, and money purchase plans will need to be restated by April 30, 2016 to incorporate the provisions of the Pension Protection Act of 2006 (“PPA”) and various other changes that took effect between 2007 and 2011.  As a result, you may recently have been contacted by your retirement plan document provider informing you they will be restating your plan in the coming months.

Before you agree to this restatement, you should determine if you want to make any additional changes to the provisions of your retirement plan.  These can be simple changes such as adding an employer matching contribution, or major changes such as implementing a safe harbor plan in order to avoid annual nondiscrimination testing.

Now is the time to review the provisions of your retirement plan to ensure they are in line with the objectives of your organization.  One restatement covering both required and desired changes can avoid costly amendments in the future.

In addition, now is an ideal time to review the vendors servicing your retirement plan – especially those providing investment advice and plan administration.  The fees for these services are now more transparent.  Over the last several years with advances in technology, these services are now more competitively priced.  If you are considering a change in plan provider, you will want to know if the new provider can use your current plan document or if they require you to use their own plan document.  Consequently, you will want to make changes in plan vendors before you restate your plan.

Finally, now is the time to consider if your organization is a candidate for some of the more advanced types of retirement plans being used by employers to allocate larger benefits to key executives and owners.  Plans such as cross-tested profit sharing plans and cash balance plans may be used in conjunction with a 401(k) plan to provide maximum benefits to specific employees without violating many of the nondiscrimination rules conventional retirement plans must adhere to.

Although April of 2016 seems a long way off, now is the time to plan ahead for the April 30th PPA restatement deadline and review the key provisions of your current retirement plan and the vendors that service your plan.

Please contact Jeff Spencer at 216-831-7171 or for more information on this topic.

Jeff Spencer is a Tax Principal at Ciuni & Panichi, Inc., and he is the head of the employee benefits tax services group.

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Affordable Care Act New Reporting Requirements

Jeff SpencerAction Required Now

By:  Jeffrey R. Spencer, CPA, Principal, Ciuni & Panichi, Inc.

The Affordable Care Act (ACA) imposes significant new reporting requirements on large employers beginning with the 2015 calendar year.  The ACA defines “large” as those employers with 50 full-time or full-time equivalent employees.  For this purpose, “full-time” is defined as 30 hours per week.

Large employers must file the new IRS information returns (Forms 1094 and 1095) to report information about their health plans and their workforce for the 2015 calendar year.  These new forms are similar in scope to a Form W-2, since an information return (Form 1095-B or 1095-C) will be prepared for each applicable employee, and these returns will be filed with the IRS using a transmittal form (Form 1094-B or 1094-C).  Electronic filing is required for employers filing at least 250 returns.

Employers must file these new returns annually with the IRS beginning in 2016 by February 28th (March 31st if filing electronically).  A copy of the Form 1095 (or a substitute statement) must be given to each employee by January 31st.

Applicable large employers must prepare a Form 1095-C for each full-time employee regardless of whether the employee is participating in their group health plan.  The employer also will complete a Form 1095-C for each non-full-time employee in the plan.  Form 1095-C reports the following information:

  • The employee’s name, address, and Social Security number
  • Whether the employee and family members were offered health coverage each month
  • The employee’s share of the monthly premium for the lowest-cost health coverage offered
  • Whether the employee was a full-time employee each month
  • Whether the employee was enrolled in the health plan
  • If the health plan is self-insured, the name and Social Security number (or date of birth if SSN not available) of the employee and each family member covered by the plan by month

The transmittal form, Form 1094-C, reports the following information:

  • The total number of Forms 1095-C filed
  • The number of full-time employees for each month
  • The total number of employees for each month

Due to the complexity of these new reporting requirements, employers should:

  • Develop procedures to determine and document each employee’s monthly employment status
  • Develop procedures to collect monthly data regarding offers of health coverage and health plan enrollment
  • Discuss the reporting requirements with their health plan insurer and/or third-party administrator as well as their payroll provider to assign responsibility for data collection and forms preparation

The new ACA reporting rules are complicated and burdensome, and employers’ payroll systems and processes need to handle these additional requirements.  Now is the time to verify your systems and policies are collecting the necessary 2015 data to ensure compliance with the reports due early next year.

Please contact Jeff Spencer at 216-831-7171 or for more information on this topic or on other ACA issues.

Jeff Spencer is a Tax Principal at Ciuni & Panichi, Inc., and he is the head of the Employee Benefits Tax Services Group.

Affordable Care Act Fee Deadline Approaching

Affordable Care Act – Action required by November 15th

By Jeffrey R. Spencer, CPA, Principal, Ciuni & Panichi, Inc.

ACAThe Affordable Care Act imposes a $63 fee per enrollee on insured and self-insured health plans.  Employers with self-insured health plans must report certain information to the Department of Health and Human Services by November 15, 2014.  Here is what you need to do now.

The Affordable Care Act (ACA) requires a fee to be paid by health insurance issuers and by self-insured group health plans to fund the Transitional Reinsurance Program (TRP).  The TRP financially assists insurance companies that cover high-risk individuals.  Insurers and sponsors of self-insured group health plans must report the number of covered individuals under the plan to the Department of Health and Human Services (HHS) in order to determine the per-enrollee fee.  For fully insured plans, the insurance company will typically collect the TRP fee through premium rates.  Self-insured plans fund and remit the TRP fee themselves.

The TRP fee is based on the average number of covered lives (employees, spouses, and dependents) for the first nine months of the calendar year.  The IRS has proposed three methods for determining the average number of covered lives: 1) Actual count method, 2) Snapshot method, and 3) Form 5500 method.  Since the TRP fee is $63 per covered life for 2014, it is important to analyze which method results in the lowest fee.  The fee may be paid from plan assets as a permissible plan expense under ERISA.

HHS allows the payment of the TRP fee in two installments.  For 2014, the first installment of $52.50 per enrollee is due by January 15, 2015, and the second installment of $10.50 per enrollee is due by November 15, 2015.  Self-insured employers must register on to complete the TRP fee submission process. is a web-based application where forms may be retrieved and online payments to government agencies can be submitted.  All payment information and scheduling of payment dates for the TRP fee will be handled using this site.
To begin the process, plans must register and submit their number of covered lives to HHS via by November 15, 2014.  Within 30 days, HHS will notify the plan of its required TRP fee.

It is important to note certain types of health coverage are excluded from the TRP fee, including:

  • Coverage that is not major medical (e.g., standalone vision and dental, health savings accounts, Part D prescription drug benefits, etc.)
  • Supplemental coverage (e.g., HRA)
  • Secondary coverage (e.g., Medicare)

Please contact Jeff Spencer at 216-831-7171 or for more information on this topic or on other Affordabe Care Act issues.

Jeff Spencer is a Tax Principal at Ciuni & Panichi, Inc., and he is the head of the employee benefits tax services group.

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FSA Plans: Employers, Have You Amended Your Plans to Allow Rollover?

FSA Flex Spending MedicalHealth care Flexible Spending Accounts (FSAs) allow employees to redirect pretax income to an employer-sponsored benefit plan that pays, or reimburses them for, qualified medical expenses not covered by health insurance. A maximum employee contribution limit of $2,500 went into effect in 2013. (Employers can set a lower limit, however, and there will continue to be no limit on employer contributions to FSAs.)

Employers that haven’t yet done so must amend their plans and summary plan descriptions (SPDs) to reflect the $2,500 limit (or a lower one, if they wish) by December 31, 2014.

Allowing a $500 FSA Rollover – FSA Plan Amendment

While you’re making those amendments, you may want to consider another amendment: allowing a $500 rollover.

Generally, an employee loses any FSA amount (referred to as “use it or lose it”) that hasn’t been used by the plan’s year-end. But last year, the IRS issued guidance permitting employers to amend their FSA plans to allow up to $500 to be rolled over to the next year.

Eliminating the 75-Day Grace Period to Permit Rollover

However, if your plan was previously amended to allow a 2½-month grace period for incurring expenses to use up the previous year’s contribution, you cannot add the rollover provision unless you eliminate the grace period provision.

Do you have questions about amending your FSA plan, or adding FSAs to your employee benefits plan? Then contact John Troyer at 216-831-7171 or You can also leave us your contact information here, and we will contact you as soon as possible. We’d be pleased to answer these and other questions related to taxes and employer-sponsored benefit plans.

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Flexible Spending Accounts Must Be Amended by Year-End

Update Your Flexible Spending Account Now

AACA Health Care ReformHealth care Flexible Spending Accounts (FSAs) allow employees to redirect pretax income to an employer-sponsored plan that reimburses them for qualified medical expenses not covered by their insurance.  The most an employee can contribute is $2,500.  This amount went into effect in 2013.  Employers can set a lower limit and there will continue to be no limit on how much an employer can contribute to FSAs.

Employers that have not yet done so must amend their plans and summary plan descriptions to reflect the $2,500 limit or a lower one, if they want, by the end of 2014.

While you’re making those amendments, you may want to consider adding another amendment and allowing a $500 rollover.

Generally, an employee loses any FSA amount that hasn’t been used by the plan’s year-end.  But last year, the IRS issued guidance allowing employers to amend their FSA plans to allow up to $500 to be rolled over to the following year.  If your plan was previously amended to allow a 2½-month grace period for incurring expenses to use up the previous year’s contribution, you cannot add the rollover provision unless you eliminate the grace period provision.

Questions about amending your Flexible Spending Account plan, or adding a Flexible Spending Account to your benefits offering?  Then contact John Troyer  Partner-in-Charge of our Employee Benefits Group at 216.831.7171 or

At Ciuni & Panichi, Inc., we are experts in employee benefit plans.  From setting up a new plan to auditing and taxes, we would be pleased to assist you with any questions you have.

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Affordable Care Act – Play-or-Pay? Are You Prepared?

The Affordable Care Act – Offer sufficient coverage or pay the penalty

ACAAre you a “large” employer?  Your time is running out to get prepared for the Affordable Care Act’s shared responsibility provision.  Also called the “play-or-pay” provision that is scheduled to go into effect in 2015.  Under transitional relief the IRS issued earlier this year, for 2015, large employers generally include those with at least 100 full-time employees or the equivalent, as defined by the Affordable Care Act.  However, the threshold is scheduled to drop to 50 beginning in 2016, and that threshold will apply beginning in 2015 for the Affordable Care Act’s information-reporting provision.

The play-or-pay provision imposes a penalty on large employers if just one full-time employee receives a premium tax credit.  The credit is available to employees who enroll in a qualified health plan through a government-run Health Insurance Marketplace and meet certain income requirements, but only if:

  1. They don’t have access to “minimum essential coverage” from their employer, or
  2. the employer coverage offered is “unaffordable” or doesn’t provide “minimum value.”

The IRS has issued detailed guidance on what these terms mean and how employers can determine whether they’re a large employer and, if so, whether they’re offering sufficient coverage to avoid the risk of penalties.  If you are not sure if you fall into these categories, contact Ciuni & Panichi, Inc. and we can help you determine what will work for you and your company.

If your business could be subject to the play-or-pay provision of the Affordable Care Act and you haven’t yet started preparing, do so now.  For more information on play-or-pay, or on the information reporting requirements, please contact Jim Komos at 216.831.7171 or

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© 2014


Short-term ACA Relief Now Available for Midsize and Large Employers

AACA Health Care ReformRecently released IRS final regulations for the Affordable Care Act’s (ACA’s) employer shared-responsibility provision provide some short-term relief for midsize and large employers.

Under the ACA, the shared-responsibility provision (commonly referred to as “play-or-pay”) applies to “large” employers — those with the equivalent of 50 or more full-time employees. Play-or-pay had been scheduled to go into effect in 2014, but last year, the IRS pushed that out to 2015. Now, under the final regulations, eligible midsize employers that otherwise would be considered large employers under the ACA won’t be subject to the provision until 2016.

To Qualify for the Midsize-Employer Relief, an Employer Must:

      • Employ on average fewer than 100 full-time employees, or the equivalent, during 2014,
      • Maintain its workforce size and aggregate hours of service,
      • Maintain the health care coverage it offered as of Feb. 9, 2014, and
      • Certify that it meets these requirements.

Some Relief for Large Employers as Well

The final regulations also provide some relief for large employers that don’t qualify for the midsize-employer relief.  In 2015, they can avoid the penalty for not offering minimum essential coverage by offering such coverage to at least 70% of their full-time employees, rather than the 95% originally scheduled. The 95% requirement will apply in 2016 and beyond.

The final regulations also clarify certain aspects of the play-or-pay provision. Please contact Jim Komos at 216.831.7171 or for more information. You can also submit an inquiry on our contact us page.

To read more about Ciuni & Panichi’s Employee Benefit Plan Services, including employee benefit plan financial audits, preparation of annual Form 5500 filings, annual compliance tests required by ERISA and the IRS, and much more, visit our Employee Benefit Plan Services page.

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Retirement Planning: When to Increase Contributions

Should you Increase your Retirement Plan Contributions in 2014?

Retirement PlanningIt’s time to start thinking about 2014 retirement plan contributions. Contributing the maximum you’re allowed into an employer-sponsored defined contribution plan is likely a smart move.

Retirement Planning: Contributing the Maximum

When planning for retirement, you can reap major benefits from maximum contributions for these reasons:

1. Retirement plan contributions are typically pretax.
2. Retirement plan assets can grow tax-deferred — meaning you pay no income tax until you take distributions.
3. Your employer may match some, or all, of your contributions pretax.

Also, consider contributing to a traditional IRA. If you participate in an employer-sponsored retirement plan, your IRA deduction may be reduced or eliminated, depending on your income. But you can still benefit from tax-deferred growth.

Consider your Roth options as well. Contributions aren’t pretax, but qualified distributions are tax-free.

Retirement plan contribution limits generally aren’t going up in 2014, but consider contributing more this year if you’re not already making the maximum contribution. And, if you are already maxing out your contributions, but you’ll turn age 50 in 2014, you can put away more this year by making “catch- up” contributions.

Type of contribution 2014 limit
Elective deferrals to 401(k), 403(b), 457(b)(2) and 457(c)(1) plans $17,500
Contributions to SIMPLEs $12,000
Contributions to IRAs $5,500
Catch-up contributions to 401(k), 403(b), 457(b)(2) and 457(c)(1) plans $5,500
Catch-up contributions to SIMPLEs $2,500
Catch-up contributions to IRAs $1,000

For more retirement planning ideas on making the most of tax-advantaged retirement-savings options, contact Jim Komos at 216-831-7171 or via email at You can also submit an inquiry at our contact us page.

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