Overview
Acknowledging uncommon market conditions, the Pension Benefit Guaranty Corporation (PBGC) announced Technical Update Number 23-1 (the Update), which provides a one-time waiver of certain reporting requirements for some underfunded defined benefit pension plans under the Employee Retirement Income Security Act of 1974 (ERISA). However, to qualify for the waiver, pension plan sponsors still need to timely notify the PBGC.
In Depth
BACKGROUND
Generally, ERISA Section 4010 requires plan sponsors (and controlled group members) of certain underfunded single-employer defined benefit plans to provide financial and actuarial financial information to the PBGC each year. Pension plans falling below the 80% “at-risk” funding target attainment percentage (4010 FTAP) must provide specified information via an electronic ERISA Section 4010 filing.
The PBGC is authorized to assess a penalty for failing to make this filing. In January 2023, this penalty was increased to a maximum of $2,586 for each day a filing is overdue. In addition to filing penalties, ERISA Section 4010 filings generally are unpopular with plan sponsors for several reasons:
- Extensive financial data must be reported to the PBGC for all US-controlled group members;
- Pension plan participants receive information on the ERISA Section 4010 filing in the annual funding notice for the pension plan; and
- The PBGC places the plan sponsor on a watch list for future acquisitions and divestitures and can require additional pension funding or transaction financing to protect pension plan assets and funding.
TECHNICAL UPDATE NUMBER 23-1
In the Update, the PBGC notes that it expects recent “atypical and almost unprecedented” market conditions to affect the liability and asset measures that determine whether a 4010 filing is required. These conditions may cause many defined benefit plans to have a 4010 FTAP below 80%, triggering an ERISA Section 4010 reporting requirement. To provide relief, the PBGC will provide a one-time waiver of the ERISA Section 4010 filing requirements if all of the following conditions are met:
- An ERISA Section 4010 reporting requirement did not apply for the last five years.
- Either:
- None of the defined benefit plans in the controlled group has a market-based 4010 FTAP (as defined in the guidance) that falls below 85% or
- The market-based aggregate funding shortfall (as defined in the guidance) does not exceed $15 million.
- If a defined benefit plan maintained by a controlled group member has a 4010 FTAP below 80%, then the plan’s valuation date must fall on or after October 1, 2022, and before March 1, 2023.
To utilize this relief, a plan sponsor must notify the PBGC no later than 15 days before the date the ERISA Section 4010 filing would have been due if not for the waiver. Entities using the waiver must send an email to ERISA.4010@pbgc.gov with the subject line “Technical Update 23-1 Waiver.” Additional information about filing can be found on PBGC’s 4010 reporting webpage.
WHAT’S NEXT?
Defined benefit plan sponsors should closely review this new relief with their lawyers and actuaries to determine whether the reporting waiver applies. For more information about the waiver or the reporting requirements, please contact one of the authors or your regular McDermott lawyer.
