1. Is There Still Life in These Plans?
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2. This material was not intended or written to be used, and cannot be used, to avoid penalties imposed under the Internal Revenue Code. This material was written to support the promotion or marketing of the products, services, and/or concepts addressed in this material. Anyone to whom this material is promoted, marketed, or recommended should consult with and rely solely on their own independent advisors regarding their particular situation and the concepts presented here.
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3. Why 412(e)(3) Now? Uncertain economic climate
Clients leery of investing solely in stocks or bonds
Desire for guaranteed retirement income
Favorable Pension Reform: EGTRRA 2001
compensation/contribution limit changes
no plan aggregation
no family aggregation
Changes in our economic environment have made many clients leery of meeting all of their retirement goals through investing in volatile stock and bond markets alone. These clients would like to have a portion of their needed income at retirement guaranteed, opening the door for an Internal Revenue Code (IRC) Section 412(e)(3) defined benefit plan. Another reason why the 412(e)(3) plan is popular is the wide range of beneficial changes for retirement plan participants created by the Economic Growth and Tax Relief Reconciliation Act (EGTRRA) of 2001.
No More Plan Aggregation
Prior to January 1, 2000, benefits provided under a defined benefit plan were required to be aggregated with employer contributions to a defined contribution plan for IRC Section 415 maximum benefit limitations. This rule limited the amount that could be put into a defined benefit plan if the employee currently or ever also participated in a defined contribution plan through the same employer. This aggregation rule has now been eliminated in many situations.
No More Family Aggregation
Under prior law, a married couple’s benefit was aggregated for benefit limitation purposes as if they were one plan participant rather than two separate individuals. Family aggregation greatly reduced the motivation for a married couple in business together to sponsor a defined benefit pension plan. This aggregation limitation has now been removed and each spouse is treated as a separate plan participant based on his or her individual compensation. This can be particularly useful for family businesses employing both spouses.
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4. EGTRRA Increases Compensation and Benefit Limitations
2005
2006
2007
2008
2009
Compensation
IRC 401(a)(17)
$210,000
$220,000
$225,000
$230,000
$245,000
Annual Benefit IRC 415
100% of pay not to exceed $170,000. Reduced if benefit starts before age 62.
100% of pay not to exceed $175,000. Reduced if benefit starts before age 62.
100% of pay not to exceed $180,000. Reduced if benefit starts before age 62.
100% of pay not to exceed $185,000. Reduced if benefit starts before age 62.
100% of pay not to exceed $195,000. Reduced if benefit starts before age 62.
One of the major EGTRRA changes is a greater annual retirement benefit limit for defined benefit plans. The IRC Section 415 defined benefit dollar amount has increased from $90,000 in 1990 to $195,000 in 2009 (and, indexed for inflation, may increase in the future).
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5. What Is a Section 412(e)(3) Plan?
Defined benefit qualified retirement plan
Funded exclusively with guaranteed insurance products
Level annual funding is required
Plan benefits equal contract benefits
Exempt from usual defined benefit plan minimum funding requirements
Contributions based on present value of future benefits
A Section 412(e)(3) fully insured plan is a defined benefit qualified retirement plan funded exclusively with guaranteed insurance contracts. For a plan to be considered fully insured for the plan year, the following requirements must be met:
• The plan is funded exclusively with annuity contracts or a combination of annuities and permanent life insurance policies
• The insurance contracts provide for level annual funding until retirement (however, experience gains and dividends will be applied against premiums and reduce the employer’s cost)
• Plan benefits equal the contract benefits and are guaranteed by a licensed insurance company
• The policy has not lapsed without reinstatement during the plan year
• There is no security interest against the insurance policies
• No policy loans are allowed at any time during the plan year other than loans to pay premiums as long as the loan and interest are repaid before the end of the plan year of the loan and before any distribution is made or benefits commence.
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6. Investment Options Annuity-only option
Annuity and life insurance option
Contract selection does not change benefit
Life insurance adds family security
There are two basic investment options with a 412(e)(3) plan: annuity only or a combination of annuity and life insurance. With a 412(e)(3) plan:
• The retirement benefit is defined
• Contract selection will not change the future retirement benefit; only the contribution will vary
• Life insurance could increase contributions but the insurance adds a self-completing element to the plan since the death of an insured participant will allow a greater death benefit payment to the participant’s family
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7. Benefits of a 412(e)(3) Plan
Maximize contributions and deductions
Limit complexities of traditional defined benefit plans
Minimize market risk
Benefits can increase over time—which can help offset effects of inflation
Section 412(e)(3) plans offer several benefits, including the ability to maximize contributions and income tax deductions. Section 412(e)(3) plans also avoid many of the complexities of traditional defined benefit plans, such as the required quarterly contributions, portfolio allocation and monitoring, and minimum funding requirements.
More and more people are feeling the effects of the stock market downturn. The guarantees of a 412(e)(3) annuity and life insurance contract avoids the risks associated with investing in the stock market.
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8. Traditional Defined Benefit vs. 412(e)(3) Fully Insured Plan
Traditional Plan
412(e)(3) Plan
Limited early contributions
Larger upfront contributions
May become over-/underfunded
Always fully funded
Quarterly contribution deadlines
Funding extended to tax filing deadline
Compared to traditional defined benefit plans, a 412(e)(3) fully insured defined benefit plan allows for greater contributions earlier in the plan. By definition, the 412(e)(3) plan is always fully funded - never over - or under-funded, as can be the case with traditional defined benefit plans.
Because of the uncertainty that can result from a volatile market, unpredictable investment returns may cause some plans to become “under-funded” when the market is slumping, or “over-funded” when the market is strong. Fully funded plans may offer greater stability than market-invested plans.
Over-funded plans that are converted to a fully funded 412(e)(3) plan might even be able to accept further contributions, while under-funded plans may be better able to maximize contributions by converting to a 412(e)(3) plan. In a 412(e)(3) plan, the plan is funded based on the guaranteed values of the annuity and life insurance contracts, which may provide greater funding stability in providing the plan participant’s accrued benefit.
Finally, with funding of a 412(e)(3) plan extended to the tax filing deadline (rather than year-end), a business owner can sign plan documents by year-end 2008, but not fully fund it until the tax filing deadline in 2009 (including extensions). This flexibility may help a business manage cash flow better than a traditional defined benefit plan, which requires quarterly contributions.
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9. Defined Benefit Plan vs. 412(e)(3) Plan Comparisons
Traditional Defined Benefit
412(e)(3) Plan
Cash at Age 65
$2,206, 088
$3,796,729
Interest Assumption 5% 3%
Actuarial Mortality
Current
Guaranteed
Normal Retirement Age
Reasonable
This chart hypothetically illustrates how a client can maximize his or her contributions with a 412(e)(3) plan, providing the opportunity for more funds to manage in the future if client needs change.
Calculations provided by The Heritage Group, LLC. Assumes plan participant is 50 years old. Funding for maximum retirement benefit allowed at age 65. Participant’s compensation in all years is in excess of $245,000.
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10. GATT vs. Lump Sum Monitoring
Limits imposed by Congress
Look at current IRS interest rates to determine present value of annuity
Interest rates change annually
412(e)(3) vs. traditional defined benefit plan—reach GATT limit earlier
Choice to annuitize 412(e)(3) or roll over lump sum depends on a variety of planning factors
The General Agreement on Tariffs and Trade (GATT) contains limits imposed by Congress. Using changing annual interest rates, GATT determines how much an individual can take as a lump sum out of his or her defined benefit pension plan – whether it’s a 412(e)(3) or a traditional plan. The difference with a 412(e)(3) plan is that the client reaches the GATT limit much earlier than with a traditional defined benefit plan. This is because the client has been putting more money into the plan for the annuity at age 65 based on 3% guarantees versus the traditional defined benefit plan’s 6% guarantees.
For some clients, it makes sense to keep the 412(e)(3) plan since they want the guaranteed income stream for the rest of their lives. Others may want to take the lump sum and roll it into an IRA or profit-sharing plan for the advisor – or the individual – to manage based on the client’s risk tolerance. As a client nears the GATT limit, the advisor should discuss the client’s desire to take a lump sum or not, and plan accordingly. Such a decision will be affected by a variety of factors, including the individual’s situation, the company’s ability to fund the defined benefit plan going forward, and the availability of alternate plans.
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11. Guaranteed Returns—Why Bother?
“Why should someone consider a guaranteed life insurance policy and annuity vehicle for retirement?”
For Clients
Larger upfront tax deductions with guaranteed benefits
For Advisors
Possible opportunity for long-term money management
You’ve probably spent the majority of your career advising clients to stay away from low-interest-earning investments. So why would you want them to consider a low guaranteed interest rate insurance and annuity vehicle? Good question. Here’s the answer: For clients, it’s larger up front tax deductible contributions and the ability to build a significant retirement plan; for you, it’s the possible opportunity for long-term money management.
412 (e)(3) plans give financial professionals opportunities to grow their business even as their clients' needs change. Not only is there the opportunity to help clients meet their immediate goals of tax deduction, there is also the ability to help clients meet their future goals of managing their money in retirement. This can be done by rolling the assets of the 412 (e)(3) plan into an IRA or a profit sharing plan and then managing these assets for long-term growth.
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12. Transamerica’s Approach to a 412(e)(3) Plan Offers Planning Flexibility
Life insurance is no longer needed
Life insurance is needed
receive policy as plan distribution
roll life insurance policy into profit-sharing plan
purchase life insurance policy from profit-sharing plan
Change the policy to meet new objectives
buy spousal protection for estate planning
keep individual insurance protection
Transamerica’s approach to a 412(e)(3) plan offers planning flexibility to meet the changing objectives of clients during the life of the plan. Some options for clients include:
Planning for when life insurance is no longer needed by the client;
Planning that includes life insurance for the client:
receiving the policy as a plan distribution,
rolling the life insurance policy into a profit-sharing plan; and
purchasing the life insurance policy from the profit-sharing plan.
Changing the policy to meet new objectives:
buying spousal protection for estate planning purposes; and
keeping individual insurance protection.
So what happens to a 412(e)(3) plan if the plan terminates, or the client retires or separates from service? Typically, the 412(e)(3) plan document will allow the plan participant to select a lump sum equivalent to the plan’s promised income stream. The plan participant can then roll over this lump sum amount to either another qualified plan, such as a profit-sharing plan, or to an Individual Retirement Account/Annuity (IRA).
Note that an IRA cannot own a life insurance policy, so if an insurance policy is involved in the distribution, it could not be rolled over to an IRA, but can generally be rolled over to a profit-sharing plan.
This scenario might present some interesting planning options depending upon the client’s individual situation. Let’s take a look at the various options in more detail.
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13. Life Insurance Protection No Longer Needed
Plan Participant Retires or Separates from Service
Upon separation from service or termination of the 412(e)(3) plan, which holds a TransFreedom II annuity and a life insurance policy, the annuity contract could be distributed or it could be surrendered, subject to company-imposed surrender charges. If the annuity contract is distributed, with the consent of Transamerica Life Insurance Company, the TransFreedom II annuity can be reclassified as an IRA.
If the participant no longer needs any life insurance protection, he or she may roll over the cash surrender value from the life insurance policy to the TransFreedom II annuity, a separate IRA, or a profit-sharing plan.
The choice of which arrangement to use will depend on a variety of factors, including whether or not the former plan participant is currently employed and if the entity then employing the individual offers a profit-sharing plan. Assuming an IRA is used, the plan participant may choose to keep the current annuity contract with its minimum contractual guarantees or may choose a more actively managed variable annuity or a custodial account offered by many financial institutions. This can allow the former plan participant to manage the IRA money to meet his or her risk tolerance and objectives.
TransFreedom® II (Form AF ) is a flexible premium deferred fixed annuity issued by Transamerica Life Insurance Company, Cedar Rapids, IA Contract form and number may vary, and this contract may not be available in all jurisdictions.
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14. When Life Insurance Is Needed
Plan participant Retires or Separates from Service— Receives the Policy as a Plan Distribution
Policy transferred as plan distribution
Income tax paid on fair market value of policy less taxable economic benefit
With this scenario, the former plan participant would pay income tax on the policy’s fair market value at the time of distribution. Since the individual had been recognizing the term cost of the life insurance protection as income, he or she could claim this cost as basis in the policy, thus reducing the recognition of income upon distribution.
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15. When Life Insurance Is Needed (Cont’d)
Plan Participant Retires or Separates from Service—Roll the Life Insurance Policy to a Profit-Sharing Plan (PSP)
Policy transferred directly to PSP
Not a taxable distribution
In many cases, many former plan participants will still need the life insurance protection that was offered by the 412(e)(3) plan. At separation from service and upon taking the distribution from the plan, the former participant may have several options depending upon the plan document.
One option is to roll the life insurance policy to a profit-sharing plan that permits investment in life insurance. Under this option, the individual must be employed by an entity that sponsors an active profit-sharing plan. The life insurance cannot be the only asset in the participant’s plan account, as life insurance must be incidental to the purpose of the plan, which is to provide retirement benefits.
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16. When Life Insurance Is Needed (Cont’d)
Plan Participant Retires or Separates from Service— Purchases the Policy from the Profit-Sharing Plan
Finally, if the former plan participant is participating in a profit-sharing plan, the policy could be transferred from the 412(e)(3) plan as a tax-free rollover and then sold by the profit-sharing plan to the plan participant. This is normally a prohibited transaction, but Prohibited Transaction Exemption 92-6 issued by the Department of Labor allows a plan participant and certain other parties to purchase a life insurance policy from a qualified plan for at least its cash surrender value if certain conditions are met.
However, if the party purchasing the policy pays only the cash surrender value for the policy, the difference between the amount paid and the policy’s fair market value may be a taxable distribution from the plan to such party, or the plan participant.
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17. TransSecure® II and TransSecure® II NY — Flexible for 412(e)(3) and Beyond
Current company practice
ISWL policy can be surrendered
cash surrender value rolls into profit-sharing plan or IRA
For same net amount at risk, Transamerica may issue new second-to-die universal life policy
No evidence of insurability required on former plan participant
In some situations, where the individual still needs life insurance protection, the interest-sensitive whole life policy used in the 412(e)(3) plan may no longer be ideal for his/her situation. With TransSecure, the policy could be surrendered and, under current company practice, in most situations the insured could be issued a survivorship policy covering both the insured and his/her spouse for the same net amount at risk (the current death benefit minus the current accumulation value) without evidence of insurability on the insured, as is typically required for a new life insurance policy.
Offered by company practice. Transamerica does not guarantee to continue to offer the policy in this circumstance. The company can change or end this practice at any time.
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18. TransSecure® II and TransSecure® II NY — Flexible for 412(e)(3) and Beyond (Cont’d)
Evidence required on spouse’s life
Owner can be irrevocable trust so death benefit avoids estate inclusion
Cost of insurance based on insured’s current age—subject to new surrender charges
New compensation
Offered by company practice
However, the insured’s spouse would need to provide evidence of insurability. Once the insured has either retired or is no longer participating in the plan, the participant may find it advisable to refocus on his or her planning objectives.
The focus might then be on estate planning and the need to have a life insurance benefit paid at the second death for estate liquidity. Although not provided in the policy, it is current company practice to protect the individual’s insurability for a new survivorship policy and to allow the owner of the survivorship policy to be other than the current policy owner, such as the insured or an irrevocable trust.
The cost of the new insurance policy is based on the insured’s current age and will be subject to new surrender charges.
TransSecure® II (Policy Form # , #ICC08-180) and Transecure® II NY (Policy Form # ) are nonparticipating, limited payment, fixed premium, interest-sensitive, whole life insurance policies issued by Transamerica Life Insurance Company, Cedar Rapids, IA or Transamerica Financial Life Insurance Company, Purchase, NY Policy forms and numbers may vary, and these policies may not be available in all jurisdictions. In most states, in the event of suicide during the first two policy years, death benefits are limited only to the return of premiums paid. In Missouri, suicide is no defense to payment of benefits unless the Company can show that the insured intended suicide at the time of application for coverage.
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19. TransSecure® II and TransSecure® II NY — Flexible for 412(e)(3) and Beyond (Cont’d)
Buying Spousal Protection for Estate Planning
When a need for survivorship life insurance exists, one planning option is to purchase a term life insurance policy on the nonparticipant outside the plan when the TransSecure policy is purchased inside the 412(e)(3) plan. The face amount of the term policy must be at least equal to the face amount of the TransSecure policy. When the survivorship product is needed, no evidence of insurability will be required if the face amount of the new survivorship policy is the same or lower than the actual face amount of the existing policy on each insured, subject to maximum issue age of 70 and the original underwriting class. Evidence of insurability will be required on either spouse if there is an increase from existing coverage. The term coverage on the life of the spouse will be subject to our current term conversion rules.
Likely, the new policy will be owned by an irrevocable trust or adult children of the insureds. If owned by one of these third parties, gifting strategies would need to be developed.
In order to issue the new survivorship policy, the TransSecure policy must be surrendered. Then, the former plan participant/insured can roll over the cash surrender value into a profit-sharing plan or IRA and have it managed for future growth, while knowing the new survivorship life insurance policy meets his or her current insurance objectives.
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20. TransSecure® II and TransSecure® II NY — Flexible for 412(e)(3) and Beyond (Cont’d)
Single Life (offered by company practice)
Available when policy is no longer part of 412(e)(3) plan and is surrendered
Available beginning the 8th policy year
Insured’s age and surrender charge period remain unchanged
May roll cash surrender value into profit-sharing plan or IRA
New premium must be paid to prevent policy lapse
New death benefit will be net amount at risk
If a survivorship policy does not fulfill the client’s needs after separation from the sec. 412(e)(3) plan,
another option available under current company practice may be to issue a single insured universal life policy for the same net amount at risk (the current death benefit minus the current accumulation value) with no new evidence of insurability upon surrender of the TransSecure policy. The cash surrender value may be rolled into a profit-sharing plan or IRA. New premiums must be paid for the universal life insurance policy to avoid lapse.
This single life option is allowed beginning in the eighth policy year if the TransSecure policy is no longer part of a 412(e)(3) plan and has been surrendered. The insured’s age and surrender charge period remain unchanged from that of the TransSecure policy.
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21. The Role of a Third-Party Administrator
Develops suitable 412(e)(3) plan proposal
Assists in preparation of plan documents
Annual administration
calculates plan contributions
performs incidental benefits testing
prepares required reports
handles distributions
While the mechanics of a 412(e)(3) plan are not particularly complicated, it does take a team to establish and administer the plan. One of the key players is the third-party administrator (TPA). However, not all TPAs are alike – their fees may differ and they may have various levels of experience administering 412(e)(3) plans. Most insurance carriers have a recommended list of TPAs for you to use as a guideline. Working together, the financial advisor, TPA, and the client’s other professional advisors should review the client’s concerns and objectives and develop the 412(e)(3) plan accordingly.
The TPA then develops the plan proposal based on the client’s objectives, cash flow, and employee census. Once the client accepts the plan, the TPA will work with the client’s legal counsel to provide the appropriate plan documents and then provide plan administration on an annual basis.
Annual plan administration typically includes calculating the required plan contribution and developing reports for the government, employer, and plan participants. The plan administrator will also handle new plan participant additions and terminating plan participant payouts. Should the plan ever terminate, the administrator will prepare all government-related reports and distribute final payout amounts to plan participants.
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22. Planning Considerations
There is a huge tax bill accruing on the backside of the 412(e)(3) plan—all we’re doing is deferring taxes
Remember, this is a wealth-building and preservation strategy; it’s for people who need to build up funds in retirement plans in a relatively short period of time. It not only offers tax deferral, but also provides tax deductions to the company and offers protection for the pension assets from creditors. But, like other qualified pension plans, the benefits will generally be income taxable when paid.
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23. Planning Considerations (Cont’d)
What makes Transamerica’s approach to Section 412(e)(3) plans safer than those offered by the competition now that the IRS issued regulations that will change the valuation of life insurance policies?
On April 8, 2005, the IRS and Treasury offered guidance on the valuation of life insurance in qualified plans such as IRC Section 412(e)(3) plans. The verdict? Transamerica’s approach to 412(e)(3) plans is a safe option.
The IRS specifically targeted aggressive 412(e)(3) plan designs, including those that utilize artificially low policy valuation for income tax purposes on the distribution or purchase of life insurance policies from the plan. These plans may not deliver the promised benefits due to this new guidance by the IRS. In comparison, Transamerica’s approach to 412(e)(3) plans does not rely on unrealistically low policy valuation. Instead, it is designed to help clients reach their retirement goals either through a monthly income at retirement or a lump sum with transfer to a profit-sharing plan or an IRA.
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24. IRS Guidance on Valuation of Life Insurance
Notice
Modifies and supersedes
Provides guidance on fair market value of life insurance policies
Provides safe harbor formula
Revenue Procedure , issued April 8, 2005, provides guidance on how to determine the fair market value of a life insurance contract for the purposes of applying the rules of Internal Revenue Code § 79, 83, and 402. This notice modifies and supersedes Rev. Proc , issued on February 13, 2004, which initially determined the safe harbor formula for fair market value of a life insurance contract to be “premiums paid, plus earnings, and minus reasonable charges.”
To determine the fair market value of a life insurance contract, Rev. Proc provides two safe harbor formulas. The fair market value is the greater of:
The sum of the interpolated terminal reserve and any unearned premiums plus a pro rata portion of a reasonable estimate of dividends to be paid for that policy year based on company experience OR
The product of the PERC amount (premiums, earnings, and reasonable charges) and the applicable Average Surrender Factor described in Rev. Proc
Please note that there are differences in the definition of PERC between variable and nonvariable contracts.
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25. Who Might Benefit from a 412(e)(3) Plan?
The best candidates for a 412(e)(3) plan might be:
Highly paid business owners and professionals:
looking to maximize tax deductions
who can make a multiple-year commitment; and/or
who prefer security and guarantees over a fluctuating stock market
Smaller, closely held businesses
Companies with few or no common law employees
S corporation owners with W-2 salary
Independent contractors
Companies with larger employee groups wishing to create defined benefit “carve-out” plans
Now that you better understand how a 412(e)(3) plan can benefit both your business – and the clients’ – it’s time to identify prospects. The best candidates for a 412(e)(3) plan might be:
• Highly paid business owners and professionals:
looking to maximize tax deductions
who can make a multiple year commitment: and/or
• who prefer security and guarantees over a fluctuating stock market
• Smaller, closely held businesses
• Companies with few or no common law employees
• S corporation owners with W-2 salary
• Independent contractors
• Companies with larger employee groups but wishing to create defined benefit “carve-out” plans
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26. 412(e)(3) Summary Enhanced retirement benefits
Enhanced contributions/deductions
Enhanced security
Enhanced benefits for retirement
• Provides largest possible deductible contributions for a business owner with a short retirement timeframe
• Benefits can increase over time – inflation protection
Enhanced deductions for companies
• Tax deductions for plan contributions create immediate tax savings
• Tax savings are dollars that can be used today – plan benefits are dollars to be used in the future
Enhanced security for plan assets
• No stock market fluctuations
• Guaranteed annuity and life insurance accumulations deliver fully funded plan retirement benefits
• Same asset protection as other pension plans
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27. Professional Advice Professional advice is critical
Tax, ERISA, and legal counsel
Risk/benefit analysis
Financial projections
Careful drafting
Naturally, all qualified retirement planning strategies – including the 412(e)(3) plan – should be pursued with the advice of tax, ERISA, actuarial, and legal counsel. Clients should fully consider the benefits and risks, review financial analyses, and rely on their counsel for the careful drafting of necessary documents before adopting a 412(e)(3) strategy.
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28. Transamerica Life Insurance Company, Transamerica Financial Life Insurance Company (collectively “Transamerica”), and their representatives do not give ERISA, tax, or legal advice. This presentation is provided for informational purposes only and should not be construed as tax or legal advice. Clients and other interested parties must consult with and rely solely upon their own independent advisors regarding their particular situation and the concepts presented here.
Discussions of the various planning strategies and issues are based on our understanding of the applicable federal income, gift, and estate tax laws in effect at the time of this presentation. However, tax laws are subject to interpretation and change, and there is no guarantee that the relevant tax authorities will accept Transamerica’s interpretations. Additionally, this material does not take into consideration the general tax and ERISA provisions applicable to defined benefit retirement plans or the impact of applicable state laws on clients and prospects.
Although care is taken in preparing this material and presenting it accurately, Transamerica disclaims any express or implied warranty as to the accuracy of any material contained herein and liability with respect to it. This information is current as of February 2009.
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29. Is There Still Life in These Plans?
For producer use only. Not for presentation to the public.
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