[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] THE CHALLENGE OF RETIREMENT SAVINGS FOR SMALL EMPLOYERS ======================================================================= HEARING before the COMMITTEE ON SMALL BUSINESS UNITED STATES HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION __________ HEARING HELD OCTOBER 2, 2013 __________ [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Small Business Committee Document Number 113-039 Available via the GPO Website: www.fdsys.gov ---------- U.S. GOVERNMENT PRINTING OFFICE 85-083 PDF WASHINGTON : 2013 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (800) 512-1800; DC area (202) 512-1800 Fax: (202) 512-214 Mail: Stop IDCC, Washington, DC 20402-0001 HOUSE COMMITTEE ON SMALL BUSINESS SAM GRAVES, Missouri, Chairman STEVE CHABOT, Ohio STEVE KING, Iowa MIKE COFFMAN, Colorado BLAINE LUETKEMER, Missouri MICK MULVANEY, South Carolina SCOTT TIPTON, Colorado JAIME HERRERA BEUTLER, Washington RICHARD HANNA, New York TIM HUELSKAMP, Kansas DAVID SCHWEIKERT, Arizona KERRY BENTIVOLIO, Michigan CHRIS COLLINS, New York TOM RICE, South Carolina NYDIA VELAZQUEZ, New York, Ranking Member KURT SCHRADER, Oregon YVETTE CLARKE, New York JUDY CHU, California JANICE HAHN, California DONALD PAYNE, JR., New Jersey GRACE MENG, New York BRAD SCHNEIDER, Illinois RON BARBER, Arizona ANN McLANE KUSTER, New Hampshire PATRICK MURPHY, Florida Lori Salley, Staff Director Paul Sass, Deputy Staff Director Barry Pineles, Chief Counsel Michael Day, Minority Staff Director C O N T E N T S OPENING STATEMENTS Page Hon. Sam Graves.................................................. 1 Hon. Nydia Velazquez............................................. 2 WITNESSES Ms. Catherine Collinson, President, Transamerica Center for Retirement Studies, Los Angeles, CA............................ 3 Ms. Paula A. Calimafde, Bethesda, MD, testifying on behalf of the Small Business Council of America and the Small Business Legislative Council............................................ 5 Mr. C. Roy Messick, III, CPA, QPA, TPP Retirement Plan Specialists, LLC, Overland Park, KS............................ 6 Mr. Ray Rucksdashel, Chief Financial Officer, Quest-Tec Solutions, Inc., Houston, TX................................... 8 APPENDIX Prepared Statements: Ms. Catherine Collinson, President, Transamerica Center for Retirement Studies, Los Angeles, CA........................ 28 Ms. Paula A. Calimafde, Bethesda, MD, testifying on behalf of the Small Business Council of America and the Small Business Legislative Council............................... 35 Mr. C. Roy Messick, III, CPA, QPA, TPP Retirement Plan Specialists, LLC, Overland Park, KS........................ 47 Mr. Ray Rucksdashel, Chief Financial Officer, Quest-Tec Solutions, Inc., Houston, TX............................... 55 Questions for the Record: None. Answers for the Record: None. Additional Material for the Record: ACLI - The American Council of Life Insurers................. 58 AICPA - American Institute of CPAs........................... 64 FSR - Financial Services Roundtable.......................... 73 Ndp/analytics - Nam D. Pham, Ph.D., Managing Partner and Alexander J. Triantis, Ph.D., Senior Advisor............... 76 Principal Financial Group.................................... 111 THE CHALLENGE OF RETIREMENT SAVINGS FOR SMALL EMPLOYERS ---------- WEDNESDAY, OCTOBER 2, 2013 House of Representatives, Committee on Small Business, Washington, DC. The Committee met, pursuant to call, at 1:00 a.m., in Room 2360, Rayburn House Office Building, Hon. Sam Graves [Chairman of the Committee] presiding. Present: Representatives Graves, Chabot, Coffman, Luetkemeyer, Mulvaney, Tipton, Hanna, Huelskamp, Schweikert, Bentivolio, Collins, Rice, Velazquez, Payne, Meng and Kuster. Chairman Graves. Good afternoon. I will call the hearing to order. Today we are going to meet to examine the challenges small employers face in saving for retirement. Americans have always found it difficult to save. In June, a bankrate.com survey found that 76 percent of Americans were living paycheck to paycheck. Our workforce is aging, life expectancy is increasing, and the future of the Social Security program still remains in doubt. With that, saving for retirement seems more important than ever. Small employers understand the importance of providing good benefits, including retirement savings options, to attract and retain quality employees. However, in today's economy that can be very challenging. The Government Accountability Office recently reported that only 14 percent of small employers sponsor a retirement savings plan for their employees. Some small business owners have said offering retirement plans is just too complex or too time- consuming. Surveys by the Transamerica Center for Retirement Studies, whose president is testifying today, have found that small businesses continue to lag behind large companies in sponsoring retirement options. Small business confidence polls have shown that the economic recovery is still uneven, and entrepreneurs and their employees may not be saving more for retirement. We look forward to the new data that Transamerica is releasing at today's hearing, and during this hearing we will explore the state of retirement savings by small businesses and their employees, the barriers they face, and how we can encourage more small businesses to offer these important benefits. I do want to thank all of our witnesses for being here today. Some of you traveled a long way, and we appreciate that very much. And with that, I will turn to Ranking Member Velazquez. Ms. Velazquez. Thank you, Mr. Chairman. Retirement security is a universal goal for most Americans. As part of that retirement plan, most Americans rely on employer-based retirement plans. As the baby boomer generation ages, it is critical that small employers and their employees have financial security as they enter their retirement years. But the program remains that only 14 percent of small firms offer such a benefit. With 99 percent of all businesses in this country being small businesses, if we are truly going to make retirement security a reality, we must address their needs. Small firms not only face the challenge of offering a retirement vehicle, but enrolling their employees. Roughly 50 percent of the private-sector workforce participates in an employer-sponsored pension plan. While much of the problem can be attributed to a lack of employer offerings, nearly 20 million workers actively choose not to participate in plans offered by their employers. Improvements to the retirement system must meet the needs of business owners, while also encouraging more workers to participate. It is clear that small firms face many obstacles when setting up a retirement plan. First, there is the cost of selection and administration. The costs do not stop there either, since employers are required to make much in contributions much of the time. Finally, small firms face ongoing fiduciary duties, such as reviewing investment and running discrimination tests, all while trying to run a business. Our system seems to almost discourage small businesses from offering retirement packages, and helps explain the inequity in coverage rates for workers of small and large companies. It is clear that to encourage small businesses to start offering plans, something needs to be done to address this obstacle. Small employers face too many challenges and simply will not offer a retirement plan if they perceive that the burdens outweigh the benefits. Understanding these challenges can help us better address the solutions to low participation rates among small entities. One approach may be to offer increased tax incentives to small business owners who choose to sponsor a plan. Another method to encourage workers to participate is to create an automatic enrollment IRA. These and other ideas merit further discussion, but one thing is absolutely clear: We must act soon to help small businesses and their employees plan for their future. For these reasons we need to make sure that retirement plans are attractive for small businesses as their retirement savings is integral to our Nation's, and that--our Nation's future, and that is why we are here today. This hearing would allow members of this Committee to discuss the kind of vehicles that many small businesses use to provide retirement benefits and ways in which they can be improved upon. With the proper tools America's small firms can sustain the economic growth currently under way simply by investing in their futures. And with that, I thank all the witnesses for being here today, and I look forward to your comments. Thank you, Mr. Chairman. I yield back. Chairman Graves. All right. Our first witness today is Catherine Collinson, who is the president of Transamerica Center for Retirement Studies in Los Angeles, California. She is a retirement and market trend specialist and oversees all of Transamerica research and outreach activities, including its annual retirement survey, which is being released today at our hearing. We appreciate you coming all this way; thanks for being here. STATEMENTS OF CATHERINE COLLINSON, PRESIDENT, TRANSAMERICA CENTER FOR RETIREMENT STUDIES, LOS ANGELES, CALIFORNIA; PAULA A. CALIMAFDE, BETHESDA, MARYLAND, ON BEHALF OF THE SMALL BUSINESS COUNCIL OF AMERICA AND THE SMALL BUSINESS LEGISLATIVE COUNCIL; C. ROY MESSICK, III, CPA, QPA, TPP RETIREMENT PLAN SPECIALISTS, LLC, OVERLAND PARK, KANSAS; AND RAY RUCKSDASHEL, CHIEF FINANCIAL OFFICER, QUEST-TEC SOLUTIONS, INC., HOUSTON, TEXAS STATEMENT OF CATHERINE COLLINSON Ms. Collinson. Well, thank you, and good afternoon. I am Catherine Collinson, president of the Transamerica Center for Retirement Studies, or TCRS. Today TCRS released new research as part of its 14th Annual Transamerica Retirement Survey of 750 employers and more than 3,600 workers, including those from small companies of 10 to 499 employees. Employer-sponsored retirement plans in small business play a critical role in facilitating savings among American workers. TCRS research findings underscore the importance of these benefits in helping workers prepare for retirement. Eighty- eight percent of small-company workers value retirement benefits as important. I would now like to share four key findings from our research. Number one, plan sponsorship rates offer room for growth. Plan sponsorship rates, which may come as a surprise, are already relatively high. Seventy-one percent of companies with 10 to 99 employees offer a 401(k) or similar plan, such as a SIMPLE or SEP, and nearly 9 out of 10 companies with 100 to 499 employees do so, but more can be done, especially for the smallest of companies. Nearly one-third of small companies that do not offer a plan say they would be likely to consider to joining a multiple employer plan, which is a type of group plan offered through an entity that handles many of the fiduciary and administrative functions. Key finding number two. Plan sponsorship often does not lead to coverage for part-time workers. Plan sponsorship is not necessarily synonymous with plan coverage. A critical component of expanding coverage is encouraging employers to extend eligibility to their part-time employees. At small companies only 36 percent of part-time workers are offered a plan compared to 68 percent of full-time workers. Key finding number three. Few companies use automatic enrollment. Automatic enrollment is widely recognized as one of the most effective ways to increase plan participation; however, only 19 percent of small companies take advantage of it. The median default contribution rate is just 3 percent of annual salary, which is insufficient to ensure a participant's secure retirement. Key finding number four. Most small business workers need to save more. The majority of small-company workers plan to work past age 65, and the majority plan to continue working after they have retired, mostly for income-related reasons to bridge savings shortfalls. Perhaps the ultimate measure of a worker's retirement outlook is his or her level of savings. In 2013, the estimated median household savings in retirement accounts among baby boomers, which the generation closest to retirement, is just $92,000 for small-company workers. It is clear that small business workers need to save more, and tax incentives are powerful motivators for saving, yet few small-company workers are aware of the saver's credit, which is available to low- to moderate-income tax filers who save in a qualified plan or IRA. In light of these research findings, TCRS offers the following five recommendations: One, expand tax incentives to help offset the cost for small employers to establish a new retirement savings plan. The current start-up tax credit only allows small businesses to claim up to $500 for 3 years. Two, for small businesses in which a stand-alone 401(k) plan is not feasible, make multiple employer plans, or MEPs, more attractive to small employers. MEPs should be simple to administer and provide safe harbors from fiduciary liability for each employer. In addition, small employers should be protected from liability-related errors by other employers who are participating in the plan, and tax incentives should be provided to encourage participation in these plans. Three, create additional tax incentives and safe harbors to encourage plan sponsors to expand coverage to their part-time employees. Four, increase the default contribution rates in plans using automatic enrollment. The current 3 percent minimum default contribution rate sends a misleading message to plan participants that savings at these levels is sufficient for a secure retirement. A new automatic enrollment Safe Harbor under which employees who are enrolled at 6 percent with increases up to 10 percent, coupled with a tax credit for adopting it, could drive up plan sponsorship rates as well as participant savings rates. And number five, increased savings along low- to moderate- income workers by promoting the saver's credit and expanding it so that more tax filers are eligible. In conclusion, TCRS commends Committee Chairman Graves and Ranking Member Velazquez on their consideration of the particular challenges and needs of small business. We appreciate the opportunity to share our views and research. Ms. Velazquez. Mr. Chairman, it is my pleasure to introduce Ms. Paula Calimafde. Ms. Calimafde is a principal at the law firm of Paley Rothman, which is located in Bethesda, Maryland. She chairs the firm's retirement plans, employee benefits, and the government relations practice groups. Ms. Calimafde is testifying today on behalf of the Small Business Council of America and the Small Business Legislative Council. Welcome, and thank you for coming back to our Committee. STATEMENT OF PAULA A. CALIMAFDE Ms. Calimafde. Well, thank you, Chairman Graves and Ranking Member Velazquez, for having these hearings today. As I think we all recognize, this is an extraordinarily important topic. The success of the private retirement plan system means the difference between a comfortable retirement and a not comfortable retirement, and so the work you are doing today, I can think of not many things that are more important than what you are doing. I will be citing a number of statistics and data that will show that the small business retirement plan system is far healthier than people believe--so, for instance, the 14 percent number, I think, the data that has been just released from the Social Security office is much more in line with the data that you just came up with--but the system is precariously balanced on tax benefits. And right now those tax benefits are in line so that when a small business owner or owners decide whether they want to sponsor a retirement plan or not, they go through a cost-benefit analysis, and they determine what are the benefits to be derived to the owners and the business, and they compare it to the costs and burdens that they will have to undertake to sponsor that plan. And one of the costs, by the way, are the costs of making contributions for the employees of the company, because the Tax Code forces significant contributions to be made to those employees. Because of this, any significant cuts to the benefits that can be derived by the owners will cause small business plan formation to either be stopped, plans frozen, or new plans will not be formed. So, it is critically important that steps that are taken by you--all assist in that cost-benefit analysis by not overburdening the costs and increase the benefits, or at least leave the benefits alone. There are places where the system can be simplified. We have set forth a number of ideas in the back of our testimony. I hope I can get to them today. If not, I am more than happy to discuss them with you. For instance, one idea is that we could come up with some kind of lottery system inside a small business, for instance. So any employee who is willing to make a 3 percent contribution into the plan is entered into a lottery, and the names of the non-highly compensated employees only are put into this hat. One name gets brought out, and that employee would get maybe $500 or $1,000 put into their plan or maybe made as a cash bonus to them. It sort of brings some excitement of why we want to save, kind of get people more excited about it. I think many times employees look at this as sort of almost like autopilot, and, in fact, one of the things I will talk about is that autoescalation and autoenrollment, which is where employees are literally just put into a 401(k) plan, they can opt out, but the numbers are startling. Very few opt out, and why? Well, we think it is because of inertia. It is easier to just stay in than take active steps to get out, and autoescalation increases the amount that employee is putting in on this automatic basis, and, again, the data is startling. People just let the amounts keep building up, so even at a 6 percent contribution level, so this is 6 percent being taken out of their compensation, they just stay in and let the 6 percent go in. And putting in 6 percent into your plan and letting it grow tax free is a very good way to save for your retirement. In fact, it is such a good way that EBRI was asked to do some work for the ASPPA, the American Society of Pension Professionals and Actuaries, and what they found is that workers are 14 times more likely to save in a retirement plan that is offered by their employer than they are to go and put money into an IRA. And that is a pretty significant statistic, 14 times more likely to save. I think we are all sort of brought up and know that we--our retirement security in this Nation rests on a three-legged stool. The first leg is Social Security, a very fixed system, a defined-benefit system, you can't outlive it, very little flexibility in that system, and for many people it is a major portion of their retirement. For others, it is a safety net. It is working. I think that you all are going to have to fix it a little bit, but basically it is working. The private retirement system, even though highly regulated by Department of Labor and IRS, is much more flexible, and plans can be designed to fit a company structure and what they perceive is will be giving--will be most--they can design it so that the employees will appreciate it the most or it will fit best with their own employees, and that system is working extremely well actually. Part of it is payroll deduction. As I said, it is automatic. Employees don't have the money in their pockets. They can't spend it. They don't have to do anything. It just comes out of their payroll. It works really well. In the 401(k) and 403(b) environment, once the money is in the plan, it is difficult to get your hands on that money, which is one reason why the account balances tend to grow. If people are putting their money into an IRA, they can walk into that IRA and into the bank and take money out. It is much harder in the 401(k) or 403(b) environment. So, I think I have gone past my time, but I will be happy to take questions. Thank you. Chairman Graves. Thank you very much. Our next witness is C. Roy Messick, who is a certified public accountant and qualified pension administrator with TPP Retirement Plan Specialists in Overland Park, Kansas. Mr. Messick has been a CPA for over 30 years, and he is responsible for coordinating TPP's retirement plan recordkeeping, consulting, and administrative services. His firm is a small business serving a lot of small business clients. Thank you for being here. STATEMENT OF C. ROY MESSICK, III Mr. Messick. Thank you. Chairman Graves, Ranking Member Velazquez, and members on the House Committee on Small Business, I appreciate the opportunity to be here. It is an honor and my pleasure to have some input into the process. Like Representative Graves said, I am a CPA and a qualified pension administrator as recognized by the American Society of Pension Professionals and Actuaries, or ASPPA for short. I head up our retirement plan division, TPP Retirement Plan Specialists, which is a subsidiary of TPP Certified Public Accountants located in Overland Park, Kansas, also with an office on Long Island, New York. We administer approximately and/or recordkeep 400 plans across the country, primarily 401(k) and 403(b) plans. Probably 90 percent of those are under 100 employees, so I understand small businesses and the challenges they face in setting up these plans. In my written testimony I did summarize the types of plans that are commonly offered to small businesses, primarily 401(k) plans. I am not going to go into that in detail. But in my over 30 years of experience, I have seen--there is a lot of reasons why employers do set up plans and a lot of reasons why they don't, some of which have been touched upon already. Well, why do they set them up? Let us talk about that first. First of all, employee retention and recruiting. It is a huge benefit. If you have a 401(k) plan, you need to go out there and get talent, you got to have a 401(k) plan. And I also think a lot of the businesses, it is really kind of a paternalistic/maternalistic instinct. I mean, they want--they want their employees to have a good retirement. I want our employees to have a good retirement. So I think that is a huge reason why these plans are offered, tax incentives, of course. So much easier to see--you know, defer on a pretax basis. It is just easier to save that way. The other nice thing about employer-sponsored plans is the contribution limits are higher than IRAs. You can put more away into a 401(k) plan than you can into an IRA, so that is good, too, for retirement. So that is another reason why they do. Payroll deduction makes it easy to save, I think we talked about that, but it is so much easier if that money is coming out of your paycheck versus you have to sit down on April 15 and write a check to your IRA. Much easier. Now let us examine why employers don't offer plans necessarily to their workforce. One, these things are complicated, subject to a lot of Department of Labor and IRS rules and regulations, and with complexity comes expense. So that can be daunting for some small employers. And it is also all about proportionate cost. For example, if you have a million-dollar 10-person plan versus a $50,000 10-person plan, same number of employees, totally different asset size, who is going to get the better deal? I mean, the recordkeeping and administrative cost is really about the same, whether it is the 50-grand plan or the million-dollar plan, so it is all about proportionate cost. Same thing with investment advice. Now, our firm doesn't provide investment advice or do investments, but that is a huge component to a plan. The person who has to advise these 10 people takes the same amount of time whether there is 10 of them, you know, with 50 grand or 10 with a million. So that proportionate cost is a huge reason why some employers don't offer those. Not enough tax savings. Some employers won't offer a plan unless the tax savings more that offset the contribution for the employees. They just won't. Another reason might be why the business owner personally can't defer enough into the plan. In a traditional 401(k) plan, the amount that the business owner can defer is typically limited to 2 percentage points more than the average of the rank and file. So, for example, if the rank and file is deferring 4 percentage points on average, the business owner gets 6, that person makes 100 grand a year, they can only defer 6,000, they may say, hey, that is not worth it, not going to set up a plan. Now, in a Safe Harbor plan, that is a variation on a 401(k) plan, that makes that test go away where the business owner can defer the maximum allowed by law, which is $17,500, but the trade-off is a required contribution of 3 to 4 percent of pay for the employees. They may not be able to afford that. Their finances may not be such that they can afford that. So that would be another reason why a small business may not offer those plans. Well, how can we get more participation? I think those tax credits, that has been alluded to already, that is huge. If we can expand that tax credit, maybe target more towards smaller business somehow, some way to get these people to help start a plan, I think that would be great. I think that the 401(k) and 403(b) deferral should actually be increased from the 17,500. I know it is a tax deduction, but it might spur some business owners to say, okay, hey, now I can put more away. Yeah, I think I will do that. So, I think that is something worth considering. Maybe another type of Safe Harbor 401(k) plan that doesn't mandate that 3 or 4 percent; maybe something a little bit less in return for maybe a lesser deferral limit for that business owner, kind of a compromise, maybe that something like that would help. So, with that, those are my thoughts, and I appreciate the opportunity to be here and welcome any questions you may have. Chairman Graves. Thank you, Mr. Messick. Our final witness today is Ray Rucksdashel, who is the chief financial officer with Quest-Tec Solutions, Incorporated, in Houston, Texas. He has over 40 years of wide-ranging financial and general operations experience with closely held and publicly held companies. Thank you for being here. STATEMENT OF RAY RUCKSDASHEL Mr. Rucksdashel. Thank you, Chairman Graves, Representative Velazquez, members of the House Small Committee, thank you for inviting me to testify today. As said, I am here to testify to let the Committee know that retirement savings for the small business employees is not just a necessity, they are a critical component of my company's ability to attract and retain skilled employees. As a representative of small business, we offer a 401(k) benefit to our employees since the company's founding in 2001. We are not alone in using 401(k)s as a recruiting and retention strategy. According to a survey conducted by Sharebuilder 401(k), 89 percent of small business owners that offer 401(k) plans state that their benefit is an important factor for attracting and retaining the best talent. So why is this benefit so critical to Quest-Tec? Quest-Tec is competing for employees in a marketplace where skilled workers are hard to find. These skilled workers are not just used in Houston, they are used in any place where the oil and gas industry is growing, west Texas, North Dakota, and they will move for higher salaries or better benefits. And so we are competing with companies all over the country, some of which are much larger than us. Quest-Tec learned early on in its 401(k) benefit was easy to sell to prospective employees since we were matching 50 percent of their contributions. So why is Quest-Tec so generous with its 401(k) plan? It is simple. The cost is much less than training, attracting, and keeping good workers. Why? While 401(k) plan is important to Quest-Tec, there is a drawback to small businesses. 401(k) administration is very complicated. I have 40 years of experience in financial operations in small companies, and I don't have the time or the experience to manage 401(k)s. They are just too complicated. In addition, there is significant risk in managing 401(k) plans, and that risk and exposure can serve as a detriment for small business to offer a 401(k) program. To avoid this risk and complexity, I have contracted with a professional employer organization to manage and administer my 401(k) plan. A PEO is a company that provides payroll, human resources, and employee benefit solutions to small and midsized companies. One of the services a PEO can provide to its small-business clients is access to its 401(k) benefits. By using a PEO to access 401(k) benefits, Quest-Tec no longer has the administrative burden associated with a 401(k). My personal risk associated with being the administrator is minimized, and Quest-Tec is able to offer benefits that are competitive with much larger companies. I think it is important for the Committee to understand that, in my view, administrative complexities of the 401(k) plan administration are the biggest obstacles to small businesses offering employee retirement services. I understand that the deferment of income for tax purposes is the primary reason for the 401(k)'s complexity, I understand the need for strong fiduciary standards, and I understand the need for strong oversight, but this protection and this disclosure comes at a price, and that price is complexity and a significant burden for plan administrators. Congress should look at ways to both encourage smaller companies to offer retirement benefits to their employees and at the same time look to simplify and streamline the administration of such benefits. Education, outreach, and improvement to access of the retirement program, like the 401s, is very important. I also hope that this forum helps bring to the attention of the policymakers the challenges facing small businesses who want to provide these benefits to their employees and begin discussions on how to make these plans for small businesses to offer to their employees more successful. Thank you again for the opportunity to testify, and I welcome any questions you may have. Chairman Graves. Thank you all for your testimony. We are going to start with Mr. Coffman. Mr. Coffman. Thank you, Mr. Chairman. I was a small-business employer with 20 employees and offered a healthcare plan, but we did not have a 401(k) plan with a match. For those firms, to me, small business start-ups particularly in the services industries that have 25 employees or less, that is a pretty daunting process. And so what kind--I think you mentioned some tax incentives to offset the administrative cost. Could you all go into what kind of incentives that you would see for the really small firms of 25 or less employees? Mr. Messick. Sure. Why not? Yeah, the $500, I think that is nice. I mean, it is a nice start for 3 years, but---- Mr. Coffman. Doesn't seem like a lot. Mr. Messick. It is just not enough to, you know, jump-start the bandwagon, if you will. It would be one of those things you might want to try to maybe even double it, maybe even more than that, phase it down maybe, because, you know, if you can get them into the plan, they are not going to terminate it after a year or two, probably not, unless they really have some kind of adverse business situation. So maybe make it tiered, start off high, kind of tier it down a little bit, get them hooked, if you will. So, just my thought off the cuff. Mr. Coffman. Anyone else? Yes. Ms. Calimafde. Well, I would say not so much the tax credit, though I--it is not like I am against it. I think it is a great idea--but there are things you can do with the law which would actually help, too. So, for instance, only small businesses are hit with these laws called the ``top heavy'' rules. Mr. Coffman. Uh-huh. Ms. Calimafde. Today--I mean, this is really an accurate statement. Today they are like an appendix in the human body. They don't serve any purpose, but they cause problems. And that is in the defined contribution area; I don't want to speak to the defined benefit area. But that is an extra additional cost on administration for small businesses that is truly unnecessary. Another thing would be to simplify the 401(k) test, which is what you were saying. They can be made more simple. There was a proposal years ago called the ERSA. Simplified, it would work out really well. A third idea would be sort of to go through the Code and take out things which are aimed at small businesses exclusively. And in this regard I am thinking of like required minimum distributions where only small-business owners are required to take money out while they are working from a plan at 70-\1/2\. You know, just blatant discrimination to small- business owners. So my answer would be work with the tax credit, but there is things where you could simplify that would really help. Mr. Coffman. Ms. Collinson. Ms. Collinson. Okay. One thing I would like to add to this, especially for these small companies of, say, 25 employees, is the need to create greater opportunities for them to join a multiple-employer plan, which is a--conceptually it is a group plan with a plan sponsor that is in an entity who is well versed in retirement plans that can handle the fiduciary and administrative duties and take that off the small-business owners' shoulders. So to facilitate the offering of those types of plans and then even a tax credit for joining it could help go a long way towards inspiring plan sponsorship among the smallest of companies. Mr. Coffman. Okay. Mr. Rucksdashel. Mr. Rucksdashel. I have worked with small businesses my whole career, and the majority of the issues that come to bear for me when I have conversations about starting a 401(k) with a business is inertia. These businessmen don't get into business to run business; they get in business to buy something, sell something, manufacture something, provide a service. It is not to run a business. And so the talk about 401(k)s, they don't understand it. And so the risk involved far exceeds the benefit to their--what they perceive as their employees. They would like to help them with their retirement, but the risk to them. And so if we can minimize the regulation, the hurdles that are--that they view as getting them into this process, is going--would go a long way. Mr. Coffman. Thank you, Mr. Rucksdashel. I want to thank you all for testifying here today. I think it is a--you know, as a former small-business owner, and I think small businesses across the country, we really do need to have incentives for the owners and their employees to save for retirement, and so I thank you all for what you are doing, for testifying here today. I yield back. Chairman Graves. Ms. Velazquez. Ms. Velazquez. Thank you, Mr. Chairman. Ms. Collinson, your study noted that more than half of all workers feel less confident in their ability to achieve a financially secure retirement, and that 54 percent of workers plan to work after retirement. Given that all the workers have been more adversely affected by the recession, would allowing other workers the ability to make larger catch-up contributions be something to be considered? Ms. Collinson. Thank you for asking. Anything that we can do to help older workers save more for retirement, especially understanding that many will not be able to retire at 65, can only help better prepare them, help them to help themselves better prepare. Ms. Velazquez. And does your data indicate that all the workers will make those larger contributions despite the decreased confidence in the financial market? Ms. Collinson. That is an excellent question, and the first key to it is awareness. And I spoke in my testimony about awareness of the saver's credit, which is still low. Among small company workers it is 23 percent are aware of it. So to offer some sort of catch-up contribution above and beyond the current catch-up contribution or incentives, one of the first things is to make sure that people know about it so that they can take advantage of it, and also look at it in the context of when they will conceivably be collecting Social Security, because many workers plan to work past 65, past 70, are going to look to generate income from part-time work and may encounter some sort of conflict with Social Security if they need to start collecting benefits. Ms. Velazquez. Thank you. Paula, one of the biggest challenges, and I believe it was Mr. Messick that made reference to that, is worker retention. And we know that many small businesses want to provide a full range of benefits for their employees. What we find is that employers realize that health care is generally more important to the employees and can be more attractive to potential hires. How often do you experience a small-business owner allocating their limited employee-benefit dollars to offering or improving health benefits in lieu of retirement savings? Ms. Calimafde. Well, it is an excellent question, and it is probably one of the biggest hurdles for small business owners. Ms. Velazquez. Uh-huh. Ms. Calimafde. I think most of us who have been in the small-business world know that the first 5 years of a small business' life is fraught with difficulty, and, in fact, the Small Business Administration has told us back--I think using 2012 data, that 50 percent of all new small businesses don't make it through the first 5 years. So, you know, the first 5 years are critical to getting stability. Then, as soon as a company can, it usually goes into the health insurance market. One reason why is the employees appreciate that benefit more than retirement plans. And one of the things I have been trying to figure out is how do you get employees to appreciate retirement plans more than they do today, because, particularly if you talk to younger employees, they would prefer a cash bonus. Ms. Velazquez. Or how can we avoid creating an either/or situation for small-business workers when it comes to these two priorities? Ms. Calimafde. Right. I think that---- Ms. Velazquez. Would any of the other witnesses like to comment? Ms. Calimafde. I think health care usually just wins, and then once the business gets a little more stable, a little more profitable, then the retirement plan. But this is an area where education across the board would be really helpful with employees realizing the younger they save, the better off they will be. Ms. Velazquez. Yeah. Mr. Messick. Mr. Messick. I will talk about that a little bit, too. There is no doubt that health care is number one. It is the big elephant in the room. There is no doubt. That will always be number one. As far as being able to integrate a plan, too, it is that issue is like you got to take care of the health insurance for your employees first, and then the qualified plan comes second, so that the issue is is there something we can do to maybe take some of that burden for starting it up off that employer so that they say, yeah, you know what, I can do this, I can do both, start off small, and it gets better once you get some dollars into it, but that start-up is tough. Ms. Velazquez. Okay. I guess they are calling. Chairman Graves. No. Ms. Velazquez. I have time for 1 more minute. Mr. Messick, borrowing against retirement is not always a good first option. Yet for small businesses having difficulty accessing loans, it might be their only option to invest in their business or create cash flow during difficult times, hard times. In your experience, does the ability to borrow from 401(k) plans and not in SEP and SIMPLE plans affect a small business decision to offer a retirement plan? Mr. Messick. I think it does somewhat. I mean, there is no doubt that people like that--or a lot of employees like the ability to borrow from their account. And one of the things is, yeah, you can borrow up to half of your invested account balance, 50 grand is the cap, and that is nice. The issue becomes, though, with the employees that borrow. I mean, you obviously have to offer that to them, too. I mean, that is only fair. But the problem is is when they leave employment, they never pay those loans back, and then taxwise they get crunched. You know, they are always under 59-\1/2\, so they have the 10 percent penalty. They are paying the Federal tax and the State tax. They don't have much left for retirement. So, I am more concerned about that than the business owner being able to borrow to maybe help start his business. Ms. Velazquez. Thank you. Yes. Ms. Calimafde. One way of looking at loans is that the key is to get employees to save in their retirement plan, because we know that works. When you have the ability to borrow money, I think, psychologically it makes employees think, I will put in a little bit more because if hard times come, I know I can get back--get this money back. So I think it actually is something that increases the amount of savings is having the ability to borrow it if you really needed it, and borrowing from a plan, there is usually a cost involved. You know, most of the small-business plans run through either a TPA or an institution, and there is usually, you know, $50, $100 fee to borrow. So you are not going to go in and try to borrow $500 for something that is sort of not that critical when you know $100 is going to go right off the bat. So, the money doesn't get--it is usually not spent frivolously, I don't think. Ms. Velazquez. Thank you. Thank you, Mr. Chairman. Chairman Graves. Mr. Tipton. Mr. Tipton. Thank you, Mr. Chairman, and thank the panel for being here. Ms. Calimafde, could we maybe explore a little more in what the ranking member's question was in regards of either/or when it comes to health care versus a retirement plan. Do you see a real challenge as we continue to see government regulations increasing costs on small businesses? Out of the small business department, we have the statistics that we $10,585 per employee in just regulatory costs alone that are being assumed by businesses. We are seeing the hourly wage right now of Americans actually being hurt based off of rules, regulations, and law redefining the workweek in America from 40 hours to 30 hours. You know, there was a time in this country when we fought to have a 40-hour workweek, and now we are trying to fight to get a 40-hour workweek back in this country. So do you see some opportunities? Do you have some advice for Congress to help get out of the way of business so that they can actually not be in that either/or sort of a situation, but actually to be able to take some of the resources that government is demanding to meet government regulations, government rules, and actually get it in the pockets of people that are working hard and struggling right now? Ms. Calimafde. There is no question that the cost of regulation in the qualified retirement plan system is significant and could definitely be reduced. So, for instance, there is a number of groups that are trying to persuade Department of Labor that we should be able to have electronic delivery of notices. We are still--you know, right now we are still doing paper delivery of notices. And if you were to see the amount of notices that a small business is supposed to give employees not just in the qualified retirement plan area, but that alone is enough, but then when you get into health insurance and these other areas, I mean, literally there is like hundreds of notices required and all different dates. [1:45 p.m.] Ms. Calimafde. And unfortunately most of these notices are very long, complicated types of notices that most employees don't even read. So it would be far more effective to have electronic delivery. You could have big boxes and colors and, you know, dollar signs, put money in the retirement plan; would get far more than 10 pages of fee disclosures, for instance. So absolutely there could be a lot done to help us out here. Mr. Tipton. Great. Ms. Collinson, you deal with a lot of people. Are you seeing a trend now, given expanded rules, expanded regulations, and law now, to where we are seeing more and more people become part-time employees, actually hurting the American workforce, that this is going to really be discouraging employers and employees as well because they aren't going to be able to get a 40-hour workweek anymore, it is now 30 hours, from really participating in a retirement program? Ms. Collinson. Well, one thing that our research found is that in small business in our survey sample population, the workforce was more likely to be a part-time employee compared to large companies. So part-time employees are widely used among small business, and so that is something to be very mindful of. We have not yet seen the trend that you are alluding to, will employers start moving employees to part time. Mr. Tipton. Yeah, this is brand new coming in. Ms. Collinson. We are on the lookout for that, have not seen that yet, but that is something that we are monitoring for in our research, given all of the news reports of it. Mr. Tipton. Great. Well, Mr. Messick, you were alluding as well when small businesses--and we just heard great testimony--that are struggling, having a tough time particularly those first 5 years, trying to do the right thing. Because I am a small business guy. Your employees become your family. You spend more time with them than you do with your family actually. But when they are trying to do it, we are actually seeing government rules, government regulations, government law that is just making it prohibitive and complex to actually even put a program together to incentivize savings. Is that accurate? Mr. Messick. Well, it is tough. I mean, there are a lot of rules and regulations, and you really have to hire somebody like me to figure it out, and I am appreciative of it, thank you very much. But it is rough, and that is why I was--I talked a little bit about maybe streamlining, some kind of a simplified, you know, Safe Harbor 401(k), you know, maybe make the required contribution a little bit less, maybe take some of the fiduciary liability off the table by just saying if you just invest in target date funds, you are good to go. I mean, there are some things you could do that would encourage small business, I think, to maybe offer some of these plans without it being hugely burdensome, you know, maybe a simplified 5500 reporting for that type of plan, you know, a one-pager, you know, and people will charge less then. I mean, we will. I mean, the marketplace will force us to, and I think that would be good for these small employers. Mr. Tipton. We will hold you to that charging. Mr. Messick. Well, yeah. We will talk. We will talk. Okay. Mr. Tipton. Thank you, Mr. Chairman. Chairman Graves. Ms. Kuster? Ms. Kuster. Thank you very much, Mr. Chairman, and thank you for your testimony. I am also a small business--was in small business, and I am very appreciative of the opportunity that we had for retirement savings. Particularly with two sons in college and the expenses that you have in life, it is important. I wanted to delve into an issue that you may be aware of, and this is the Department of Labor finalizing a proposal for a new definition of ``fiduciary investment advice'' under ERISA. It sort of gets at, Mr. Messick, what your role is. But I wanted to probe a little bit further, because I am concerned about an additional hurdle for the type of people that can provide the information that small businesses need for their employees. So if this new definition prohibits plan providers from assisting small-business plan sponsors in selecting and monitoring investment options, how would that impact your ability and willingness to offer a plan? And specifically would it increase costs? What this new proposal is about is that they are changing the definition on ``fiduciary investment advice'' and making it more stringent so that people can't--they would have to be highly regulated if they were offering that kind of advice. Yes, Mr. Messick? Mr. Messick. Well, we don't offer investment advice. I mean, we are just third-party administrators and recordkeepers. But intuitively--I might defer to some of my colleagues here, but intuitively that just may not--I don't think you want to make it harder on small businesses. It sounds like it might make it harder, and then they are just going to say, well, gosh, you know, if I can't get any help, any assistance, and these things are expensive, it is just going to make it worse potentially. But like I said, I am not totally an expert in that specific area. Ms. Kuster. Right. I didn't know if any of the other witnesses had anything to add to that. Ms. Calimafde. I have a thought on this, which is I think the problem the Department of Labor is getting at is if you have a plan with an institution, and you are dealing with a broker, it is probably human nature, or it may be human nature, that that broker would try to steer some of the employees in the plan more to the institutional's products than some other institution's product because the broker will get a greater commission. So I think that is the issue, and the question is is this the best way to go about it, and my guess is it probably is not. It is a difficult issue, and I know like if every small business could afford to have an independent adviser, investment adviser, that would be the best way, but I would go at it almost completely the opposite way. I would say that a small business that has gone out and has found an institution that has X amount of assets under its investment, or--that they should not have fiduciary responsibility at all at that point. You know, so for instance if I go out to, you know, Vanguard or Fidelity, or name any of them, that that is--just by definition that institution should be releasing me from fiduciary responsibility versus me going to my uncle who has, you know, $1,000 under his own management and I say, here, manage my fund. Well, clearly I have breached my fiduciary responsibility if I am an owner sponsoring a plan. Ms. Kuster. Thank you very much. Any other comments? That was the gist of my concern, and I am concerned about this rule, that it will make it more difficult, more expensive for small businesses to be able to offer plans. So on that I yield back and thank you, Mr. Chairman. Chairman Graves. Mr. Rice. Mr. Rice. Thank you, Mr. Chairman, and thank you, panel, for being here today. A lot of you came a long way, and appreciate your expertise. I spent my professional career as a tax lawyer and a CPA. I set up a couple of these plans, but this area is so very complex, that it got to where I would just refer these people out rather than setting these things up. It is a specialty under tax law, and even people who practice, tax lawyers, are such nerds that normal lawyers don't even want to do that. So it is a very, very complex area, and just my observation would be anything we can do to relieve that complexity and liability on small employers is what we need to do. Do you see these--a lot of breaches of fiduciary duty in your practices? Just curious. Do you see that as a big problem, employers stealing from or mismanaging these funds? Do you see that? Ms. Calimafde. I will start, but I am sure more--everyone should join in on this. And the answer is a resounding no in the small business area because this retirement plan is the primary way that that owner or owners are going to be able to save for their own retirement, because most small businesses can't be sold, or certainly not sold for enough money that they are going to be able to retire on it. And the whole world of nonqualified deferred compensation plans is not available to small business owners because of the Tax Code, so that means the retirement plan is their way to save for their own retirement. They have invested a lot of money into that plan. Why would they do anything that would jeopardize that--those investments? So, to me, I have always sort of felt like if you want to look at fiduciary issues, you are in the wrong place when you are in the small-business world. And sometimes I kind of bristle when I hear about the sort of notion that these small-business owners are sort of these clueless blobs just out there without any idea what is going on with their money, or their plan, or, you know, any of this, and I just--to me it is--these are the folks who are running our entire economy to a large extent. These are people who have put their life on the line to start this business. Many of them have put their houses on the line to start this business. What makes us think that these people are incapable of understanding that they have got a lot of their savings in a retirement plan, and that they are not going to take care of it? So I just start from the entirely opposite premise. We have--I can't think of a time that I have ever heard or seen in my practice any issues with fiduciary responsibility. Mr. Rice. Nor I. Mr. Messick? Mr. Messick. Oh, I concur. I mean, we work with lots of quality investment advisers, and they are picking the fund line-ups from, you know, various places, and it is a total nonissue. Never an issue. And I think every business owner is smart enough to know that, you know, I don't think I am just going to offer a precious metals fund, and that is it, we will be fine. So it is really a nonissue. Mr. Rice. And Ms. Collinson? Ms. Collinson. The thing I would like to add is we are talking about small businesses and encouraging them to sponsor retirement plans. Our research has found that cost, administrative complexity, and concerns about the potential fiduciary liability are deterrents to them, and anything that we can do to help alleviate that is going to encourage them to sponsor plans and help their workers to save. Mr. Rice. I totally agree, you know, and I think one of the problems we suffer from here in this job as legislators is we think that we need to issue all these laws to protect people from things that just aren't real problems, and that creates all these strict guidelines and creates jobs for you and myself as a tax lawyer and a CPA. And I think anything we can do to relieve all these strict requirements and regulations is what we need to do if we really want people to participate in this on a broader scale. Thank you very much for being here. Chairman Graves. Mr. Payne. Mr. Payne. Thank you, Mr. Chairman. Ms. Calimafde, you noted in your testimony that about half of new businesses survive their first 5 years, and only about a third of new businesses survive for 10 years or more. You also said that no matter how much a small business owner cares about his or her employees, and we know that they tend to end up being like family, offering a retirement plan is often a secondary concern. Do you or any of the other panelists know the percentage of new small businesses that offer retirement plans? And has a connection been found between the business' retirement plan offerings and its longevity? Ms. Calimafde. Well, we have some data. We don't have-- anecdotally I can tell you in my practice it is clear that once a business--it is not longevity as much as once a business becomes profitable and stable, then right away they move into the retirement plan area if they can. But we do know from this study that was done by Social Security, and it is cited in my testimony, that the size of the company makes a difference in how much coverage--how many of those businesses sponsor retirement plans, which is not surprising because the smaller the company, the more likely they are to be in that start-up phase. So we know that 46 percent of small businesses with more than 10 employees, but less than 25 offer a retirement plan. And we know 60 percent of small businesses with 25 employees, but less than 50 offer a plan. It moves up to 70 percent when you have 50 employees, but less than 100. It goes to 84 percent when you have 100. What we don't know in this particular study, we don't know the breakdown after 100, and most people think of small business as going up to 250 employees or 500 employees. So my guess is once you get up to the 250, you are at a level that is very similar to larger businesses. So that is sort of a half answer for you, but there is no question if a business owner feels like he or she or they are fighting for their lives and can't make payroll, it is just probably not a good time to start talking to them about setting up a retirement plan. Mr. Payne. Right. Any of the other panelists? Ms. Collinson. Yes. In our research, when we asked small- business owners why they don't plan to offer a plan in the next couple of years, the subject of business stability also comes up in terms of they are encountering difficult business conditions, which is a deterrent from setting up a plan. They are focused on staying afloat. Mr. Payne. Okay. Please? Mr. Rucksdashel. Yeah, it has been my experience that the entrepreneur, the guy that starts the business, when he gets profitable enough to start generating his own cash flow, he is going to want to save it, and that is going to be when he realizes the best way for him to save it is through this retirement vehicle. And that is when he begins thinking about spreading this across to all his employees not only because of the regulations, but because, like it was said before, these are really his family. You know, they think about their employees as their family. And so it is not until they reach that profitability level that many of the people that I have been associated with really get into this opportunity. It takes a while to get to there. Mr. Payne. Okay. You know, also in addition to incentives, how do we build awareness and support so that small-business owners make retirement offerings a priority? Ms. Calimafde. I have one idea. This is once we have got a stable company. The folks who pretty much bring the idea of the plan and the understanding of the plan to the small-business owners are very often the small-business advisers. So it could be a CPA, it could be their attorney, it could be an insurance fellow that they work with. But to the extent we can educate these advisers about how important it is to set up the plan as soon as they can, and how it brings along the employees and employees' savings to the 401(k) plan or the feature, that is really an audience we need to target is those small-business financial advisers or their CPAs, attorneys, saying, hey, you really need a plan; this is how you can do it. And, you know, there is this sort of--the laws surrounding the plans are almost ridiculous, and I can say that working with them for years and years, but a small-business owner doesn't have to be an expert in retirement plans. They can go to an institution, and they can find a 401(k) plan and work with somebody to get that plan set up, or they can go to a TPA or their accountant. So it is not like we are requiring the small-business owners to become experts in retirement plan law. If that were the case, there would be no small business plans. Mr. Payne. Thank you. I yield back, Mr. Chairman. Chairman Graves. Mr. Hanna. Mr. Hanna. Thank you, Mr. Chairman. I want to ask about ``vestages'' rules. What do most of you consider, and how are they handled within the plans that you have? Mr. Messick. I will answer that. Vesting, that applies where the employer makes a contribution, either a matching contribution or a profit-sharing contribution. They will subject that money to a vesting schedule, and what that usually means is--the most common one we see is like what we call a graded 6; zero, 20, 40, 60, 80, 100, so that after 6 years of employment that person is 100 percent vested in that money. If they leave early, 5 years, 80 percent. So they leave 20 percent on the table. So it is designed to encourage some longevity with the employer. You know, it is that employee retention component. So it is a good thing. Now, in a Safe Harbor plan, money is 100 percent vested day 1, and that is just one of the deals. Mr. Hanna. Right. I understand what is going on. What I want to get to, though, is if an employee--is it appropriate for an employer to use someone's vestages--vestage plan to create longevity, and if they earn the money the day they get there, shouldn't all plans perhaps be treated as Safe Harbor plans, especially in a climate where people change their jobs seven or eight times as opposed to, you know, my father and myself? I want to ask another question, Ms. Calimafde. You mentioned that the top heavy rule, you thought, was biased. I don't know if that was the exact word you used, but I am very familiar with that. Why do you think that? Ms. Calimafde. Well, for starters it is based on the mathematical test, as you know. So if you--a small business generally has a significant amount of owners compared to employees, and so they almost always become top heavy. And, I mean, once you are top heavy today, nothing much happens, because the way the other rules in the Tax Code operate, you still have the same vesting schedule. If you are a Safe Harbor plan, you are basically at the same 3 percent level. So it is like--the reason why is because it is a mathematical test. Mr. Hanna. But you said it was biased. I take exception to that. I mean, I think that what it really does is it guarantees that a single ownership, one boss, two bosses own the company, are put in a position where they can't treat themselves disproportionately better than their employees. And in terms of we talked about things like fiduciary responsibility, there has to be some law there to protect the employee, because this is all they have for their life as they save it going through. I reference back to vestage rules. The other thing is that we all remember Bernie Madoff. I know that he didn't have a lot of small companies perhaps or a lot of individuals, but the world is replete with fees in that particular business. Everybody looks good in that business; they all have the jargon down. So if you don't like that, if you would like clean fiduciary responsibility rules, what do you do to save and protect the average guy who is working day to day, 8 hours a day, turns 55 years old and expects it to be there, and his employer borrowed that money out? Because we see every day the IRS going after the--for people who take FICA money, don't keep it in a separate account, and spend it, go broke, and there is no recourse. So people can borrow money out of a retirement plan, spend. If an individual can go broke, you said leave their job and not pay it back, what about a business that uses it, and can't pay it back, and borrows it because they are already in trouble? Ms. Calimafde. Well, very good questions, but let us go all the way back to the top heavy rules, because if your point is you need some kind of rules to make sure that the employees get contributions in the retirement plan, the Tax Code does that without the top heavy rules. That is why I say the top heavy rules are just like an old appendage that aren't needed. So the protection is built into the Tax Code, but it is built in in a number of different discrimination tests today. So 401(a)(4) provides that kind of protection, and 401(k) provides that kind of protection. So the Tax Code does protect non-highly compensated employees. Mr. Hanna. It provides it if you use it, but you don't have to use it. Ms. Calimafde. Well, now, if you are positing what happens if you have a small business owner who doesn't pay attention to the brokerage house, or the insurance company, or the TPA and says, I am putting in whatever I want to--and, by the way, employers are not allowed to borrow against their retirement plans; that is a prohibited transaction. Employees are allowed to borrow against their own account balances if it is at certain limits. But, you know, if you are positing if a group of owners does everything wrong, well, are there folks out there? I am sure there are bad apples out there. Surprisingly, you would be, I think, I was surprised how much DOL is all over that. Employees can call the Department of Labor and say, I don't think my company is running this correctly, and very often that will trigger an audit. But in my practice--and it may be because if owners are coming to me to say, how do I run my plan, then clearly they are not going to waste their money coming to me and then do just what they want. They just would skip coming to me and save my fees, so--and I think that is probably true of everyone on this panel, you know. Owners are not going to be coming to TPAs to find out what the rules are and then completely ignore them. Mr. Hanna. My time has expired. Thank you, ma'am. Thank you all. Chairman Graves. Mr. Collins? Mr. Collins. I want to thank everyone for coming. And, Mr. Messick, I think you articulated that business owners make a calculation as to, in some cases, their benefits of participating, and certainly that is one of the incentives you get into a profit-sharing or a Safe Harbor contribution especially. But I just want to share a story and see if you have heard anything like this. The medical device tax part of Obamacare took place January 1. It is 2.3 percent of sales, not profits. We talk about a 401(k) profit-sharing plan. If there is no profits, there is no 401(k) profit-sharing plan, 2.3 percent of revenue in many cases exceeds the profits of the company and has wiped the profits out. So you could have a fairly profitable company making 2-\1/2\ percent of sales in profits. Now all the profits are gone. There is one local company in the Buffalo, New York, area that terminated their 401(k) plan the first of the year as a direct result of Obamacare, of the medical device tax. They had no choice; they have no more profits. Now, we are early on the first year of this. I am just wondering, would you see the sense of a company like that terminating their 401(k) when their profits are gone, call it an unintended consequence of Obamacare, but a consequence nevertheless? Mr. Messick. I will answer that, not that we have any of those type of clients that I can think of, but it is obvious. If you are taking 2.3 percent right off the top, and that is obviously impacting your cash flow and your profitability, you are going to look for cost-cutting measures, period, and one of the first things you are going to do is you are going to look at the match in the 401(k) because that is low-hanging fruit. You are going to say, well, yeah, we were matching 50 cents on the dollar up to 6 percent or whatever. Well, at a minimum we are going to knock that back to 25 cents on the dollar versus spend it entirely. But you are right, the law of unintended consequences is a huge law and one I am a firm believer in. Mr. Collins. Yeah. Ms. Collinson, do you have---- Ms. Collinson. Yes, thank you. In the work that we do, our annual survey of employers, we also do trend analysis in addition to the snapshot that I presented earlier, and looking at what happened with employer- sponsored retirement plans during the worst of times, from 2007 to 2012, there was actually some good news in there that employers were very, very reluctant to terminate their plans. What we did see was a significant percentage suspending or reducing their matching contribution, which any reduction in benefits is clearly disappointing. However, they--we saw--we did not see evidence of terminating their plan unless the business itself was going out of business. Ms. Calimafde. Can I sort of take your question and turn it around a little bit? Mr. Collins. Not a problem. Ms. Calimafde. Though I can say that both of the groups that I am representing today are not in favor of the medical device tax, but when you talk about unintended effects, one of the things that we are very concerned about is in the analysis of how to reduce the debt, folks have spent a lot of time looking at this concept of tax expenditures, and the qualified retirement field gets a really big price tag next to the tax expenditure. And one of the things we are concerned about is if the amount of contributions allowed to retirement plan were to be cut back, or contributions being put into the plan now became taxable if your tax rate was over a certain amount, that might seem like, well, that is not going to have much of an effect, but in the small business-world that will have a tremendous impact. And it is because of what we have been talking about when the owners are going through this analysis if--you know, folks sort of forget that the owners own the profit, and they don't have to give it to their employees. They could take it out as compensation, they could put it back in the business, or they could do some mixture of those. Well, if the cutback to contributions in the retirement plan area is significant, and you still have all the same costs and burdens, most owners, I think, would say, okay, we will take out the money as compensation, or we will put more money back in the company, but we are not going to put it in that plan, because the plan costs too much. It is just not a good deal for us. And so what I am worried about is on one hand saying, well, we are going to get all of this revenue because the tax expenditure number is so high, and at the other hand you end up with the retirement security of millions of small business employees being affected; not the owners, the employees. And meanwhile, I think those numbers are really skewed because of the budget, that--the budget time period they are looking at, and if you ran out knowing that all that retirement plan money ends up coming back into the system again as taxable, I think you would find that the real cost is the cost of the time value of money and not that enormous price tag they are putting on it. Mr. Collins. That is a point well made. I appreciate your comments and yield back, Mr. Chairman. Chairman Graves. Mr. Huelskamp. Mr. Huelskamp. Thank you, Mr. Chairman. I appreciate you having this hearing today. There are some folks that think we are not working. We certainly are on the House side. There might be some misimpressions based on perhaps the other Chamber. But thank you, gentlemen, for being here. I appreciate the gentleman from Kansas. I might take exception with Overland Park being a suburb of somewhere in Missouri, but I will visit with the Governor about it. I hope you do live in the State of Kansas. The tax rates are very different, Mr. Chairman, as you know. But with that, a couple questions. I think it was mentioned about the regulatory burden on what you all do that are in the business of advising and helping out, give a few examples. Can you repeat a few of those examples and others that you say, hey, this is a significant burden to limiting what small businesses are willing to do, and the cost, and the type of paperwork, and things that--as they always say, the longer the paperwork, the less likely folks are to read it. You probably see that. Could you give a few more examples and describe more, and I will ask at the end that you provide that stack of stuff that is required for the employer and the employee later to the Committee. So if you could share some more information on that front, whoever would like to answer that. Ms. Calimafde. Well, I will give you one example, and I am sure the folks to the right and left of me will be able to give you some more. One is this thing called interim amendments, and right now we are not getting hit with them that much, but that is simply because there hasn't been a number of laws recently in this area. But what has happened is you all would pass a law, and IRS would then do--make--you know, do their regulations on it. And then IRS would say, okay, you have to go amend your plans now to incorporate the changes we just did in our regulations, which then meant in the private-practice world--and this goes to, you know, the huge institutions as well. So they may have 20,000 plans, they are sending out 20,000 of these interim amendments, you end up with an amendment going to the company that is, frankly, just gobbledygook. I mean, I could line up a bunch of ERISA experts, and they would say, who knows what this means. I mean, it is that bad. So, you know, we are dancing on the head of a pin. This amendment gets sent out to the owners. There is usually a price tag with that amendment, because everyone can't do this for free, and you end up with owners saying to the TPAs or the institutions, what does this mean? Why are you giving this to me? And I am supposed to hand this out to my employees, and they are supposed to make sense of this? So this was happening year after year after year, and the costs were getting significant, and you had a number of small- business owners who don't like notices to begin with, let alone nonsensical notices, and it was really getting bad. Now, IRS is trying to figure out how to work their way around this, but one easy way is for you all, anytime you pass a bill where you are trying to help us out, which you do on a fairly regular basis in this area, it would be great to have something that says, and, by the way, no amendments are required to plans until the next time there is a restatement or for 3 years at least, or something, so that at least we have some breathing room from this kind of churning of crazy amendments. Mr. Huelskamp. I will follow up on that. On the issue of paper versus electronic, that all has to be paper or in this particular instance? Ms. Calimafde. Well, right now the default is paper, and the default should today be electronic. And I don't know how many of you have looked at the required fee-disclosure notices that were handed out to employees. I mean, what a waste of trees. And it is just a shame because, you know, 10, 15, 20 pages of a notice, well, there is very few employees around who are going to be wading through that. If it had been done electronically with maybe a chart right in the front that someone could look at, we had a chance of them looking at it. Mr. Huelskamp. Other comments? I had one other general question. Do you see from the folks you work with any difference, generational differences? You know, if you are 30 and under, 40 and under, if you aren't doing this, you are out of luck. I mean, is the message getting there yet? Where are we at for younger folks which are going to be having to heavily rely on this, given the incapacity for Washington to meet these promises they have made? Yes? Ms. Collinson. Okay. One thing that we found in our research of workers, comparing and contrasting the retirement outlook of different age ranges, and something that is really quite startling is workers in their twenties share very similar levels of retirement confidence as people in their fifties, which are presumably mathematically right about their parents' age. And what seems to be happening is workers are inheriting their parents' gloomy outlook. And part of the messaging that we need to work together to do is they have years, they have decades to plan and save, and they can change their retirement destiny; however, they, one, need to be shown the possibilities as well as have the ability to learn from their parents' successes as well as missteps so that we can change the course of history. As we are looking towards legislative and regulatory changes that can help facilitate that, the clock keeps ticking, and it is up to each and every one of us to take greater levels of ownership of our own retirement outcomes. Mr. Huelskamp. Thank you. I would be happy if you would provide a link to that summary, those attitudes. I would be very interested personally in looking at those. I yield back. I thank you, Mr. Chairman. Chairman Graves. Mr. Luetkemeyer. Mr. Luetkemeyer. Thank you, Mr. Chairman. Just kind of curious. You know, one of the statements that was made in one of the testimonies today, and I think it was Ms. Collinson, if I am not mistaken, with regards to people working past 65, there was some kind of interesting numbers there. It was like 59 percent people anticipate working past 65; is that correct? Ms. Collinson. Of the small-company workers, yes. Mr. Luetkemeyer. Okay. Is this--do you have a reason for that? Are they just--they need the extra money? They are not ready to retire yet? They just enjoy working? All of the above? Ms. Collinson. In most cases it is because they need or want the income or benefits. Mr. Luetkemeyer. Okay. So at this point the retirement benefit is not something that is attractive to them, not a reason to retire? Ms. Collinson. They can't afford to retire. Mr. Luetkemeyer. Can't afford to retire, okay. It is kind of interesting from the standpoint that, you know, we have a retirement program sitting there, and they are not wanting to take advantage of it because it is not good enough to retire on. Ms. Collinson. Well, just to be clear, that is all small- company workers regardless of whether they are offered a plan or not. And even those who are offered a plan, the majority of workers in small companies and large companies are expecting to work past age 65 or not retire simply because they are afraid they haven't saved enough. And looking at account balances, I referred to the $92,000 median among baby boomers of small companies, they need to keep working. Mr. Luetkemeyer. With regard to the small businesses, I mean, they are taking a pretty good hit over the last 3 or 4 years. A lot of them probably can't financially afford to build into their business plans retirement benefits for their workers. I am just kind of curious, am I right in that? Is there a trend toward less retirement benefits for their workers, or are they being able to maintain that or--sir? Mr. Rucksdashel. Yes, I can speak to that. It goes back to profitability. It is not a desire to not offer it to employees. It is when I am being asked to match in a time when the business economy is slowing down, and my sales are going down, my margins are going down, I have got 1 or 2 percent to begin with. So it is no different than your question about the employees, why are they not taking advantage of retirement when they are worried about their retirement? It is because today is more important than tomorrow. So these workers can't--you know, they get to the end of the month, they don't have enough money, so let us put $100 or $50 away, well, that is just going to have to wait. It is the same thing with the employer. My profitability is going down, and so my contributions to my employees' retirement is going to have to go down. Mr. Luetkemeyer. So what you are saying is retirement benefits are great things as long as you can afford them, whether it is the employer or the employee? Mr. Rucksdashel. That is exactly right. Mr. Luetkemeyer. Thank you. I will yield back. Thank you, Mr. Chairman. Chairman Graves. Mr. Mulvaney. Mr. Mulvaney. Thank you, Mr. Chairman. I want to ask a little bit different line of questioning. Just out of curiosity--I ran, I have run several small businesses before I came here. Some of them did well enough, to your point, sir, about being able to offer these types of benefits to the employees. Others didn't; they weren't big enough, they didn't make enough money. I ran a restaurant, for example; we didn't offer retirement. And I would see these young people especially, but also we had folks at the upper end of the age scale, but young people especially coming in who weren't saving, and I didn't offer them anything, couldn't afford to do it. How can we, as small-business people or as a small-business community, outside of the realm of an ordinary employer- sponsored plan--how could we encourage younger folks to start participating in these plans on their own? I throw that open to everybody because I don't know the answer to that question. I am curious about it. I will ask the same question, by the way, while you are thinking about it, for older folks. We had folks come in who were near retirement, wanted to work just a little bit more, and they didn't participate either. They wanted to save a little bit extra, but figured, well, it is not worth it because I can't put enough away in a short period of time to help. So I am curious about both ends of the spectrum just if anybody has any thoughts on that. Yes, ma'am? Ms. Calimafde. We have one thought, which is we call it the KidRoth, and the idea is today for people to make Roth contributions, there has to be earned income, and if you took away the earned income requirement for people, let us say, who are under 21, and you allowed--so, you know, a 2-year-old is allowed to have a Roth, and you could have grandparents and parents and aunts and uncles making small contributions into this KidRoth for that person. And you would have some special rules, so you couldn't take money out of this plan until you are 65, let us say, or maybe you modify it somewhat, but once you reach 65, you could take money out of it and get only capital gains treatment instead of ordinary income. You know, just sort of ways of using the Tax Code to inspire people instead of buying, you know, the latest, newest toy, I am going to put some money into this KidRoth. So that is an idea. Mr. Mulvaney. Ms. Collinson? Ms. Collinson. Well, one thing that we can do if a qualified plan or retirement savings plan is not available to the employee is most employers now use a payroll service that offers direct deposit---- Mr. Mulvaney. Correct. Ms. Collinson. And direct deposit into multiple accounts. Well, what we can do is help educate people on the need to save, and, better yet, save for retirement, and, when they set up their direct deposit instructions, to set aside a certain amount that goes to savings, that goes to a savings account or an IRA, and the balance of their paycheck to go to their checking account. And by virtue of that, they are automating a certain element of savings, setting it aside every paycheck, and for many people, once that money is in a savings account or an IRA, it is much safer from withdrawals than in a checking account where, for many, it is fair game. That is just a very simple trick to get in the habit of saving. Mr. Mulvaney. That is available now, and that is legal. What you mentioned, ma'am, is not. It was just an idea going forward. Ms. Calimafde. Right. It would require some changes to the laws. Mr. Mulvaney. What about letting the kids opt out of Social Security? What about letting new folks who come in say, look, I am going to waive my rights to Social Security, but I am going to take that same 6, 7 percent, I am going to put that into an IRA for myself, under the theory that, historically speaking at least, they would be better off over the long run, plus they can choose when they want to retire; 62, 72, 82, it doesn't make any difference. What do you think about that? I would address you by name, but I have no idea how to pronounce it, so I am not going to try and embarrass myself. Mr. Rucksdashel. That is fine. Mr. Mulvaney. I sit next to Mr. Luetkemeyer, and my name is Mr. Mulvaney. We feel your pain. Mr. Rucksdashel. They pronounce it Rucksdashel. We have seen that already. In Texas, the teachers society opted out years ago from Social Security. They had their own Texas teacher retirement. They have their retirement plan, and they cannot benefit from any Social Security. Of course, my wife is bitter about that that she gets none of my Social Security, but that is another issue. But in that particular case, if they can see--they can take that money that probably to a young employee today is skeptical that they will ever see it in Social Security. If they can see they are directing it, I think that is a very strong possibility. Ms. Calimafde. I would--I mean, I understand what you are saying, and it certainly has some merit, of course. The problem with it is that Social Security is a defined-benefit system, it is an annuity system, so you can't outlive those payments. And the qualified retirement plan system today is largely a defined-contribution system. So the two are sort of dovetailing quite nicely right now. I could see some people being concerned that if you went only to a Social Security system where it was based on contributions going in and not a guarantee that you would be getting annuity payments throughout your lifetime, that we would have removed a safety net for some people. Mr. Mulvaney. Thank you very much. Appreciate your participation. Thank you, Mr. Chairman. Chairman Graves. I want to thank all of our witnesses for being here today. Obviously saving for retirement is always going to be a challenge, for Americans, and with an aging workforce and the uncertainty in Social Security, I think it is more critical than ever. We appreciate the new data and everyone bringing in your ideas and thoughts, and we are going to continue to monitor this issue. And with that I would ask unanimous consent that all Members have 5 legislative days to submit statements and supportive materials for the record. Without objection, that is so ordered. And with that, the hearing is adjourned. Thank you. [Whereupon, at 2:31 p.m., the Committee was adjourned.] A P P E N D I X [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Testimony of Ray Rucksdashel, Chief Financial Officer, Quest-Tec Solutions The Challenge of Retirement Savings for Small Business Before the House Small Business Committee October 2, 2013 I would like to thank Chairman Graves, Representative Velazquez, and the House Small Business Committee for inviting me to testify today. My name is Ray Rucksdashel, and I have 40 years of wide- ranging financial, operational and general management experience as a partner in charge of consulting. Chief Financial Officer and Chief Operating Officer for businesses from closely held companies to publicly held companies at the senior executive level. I have worked and consulted in a variety of industries including manufacturing, sales and distribution, mortgage banking, and financial institutions. My consulting experience encompasses clients across the country and Canada, and includes working in and consulting with virtually all operational areas including sales, operations, human resources, information technology, treasury, accounting, and finance. Currently, I am the Chief Financial Officer for Quest-Tec Solutions (``QTS''), located in Houston, Texas. QTS specializes in the development, engineering and manufacturing of products used primarily in the oil and gas industry, such as magnetic level indicators, liquid level gages and valve product lines. We also manufacture, steam level indicators, and liquid level gage accessories. QTS is a privately owned business that employs 38 people, primarily skilled employees in trades such as welders, CNC machinists, engineers, draftsmen, instrumentation specialists, and shop foremen. QTS is on track to do about $12 million in sales this year. I believe that the subject of today's hearing is very important and I am pleased and honored to testify on this matter on behalf of small businesses. I am here to tell the committee that retirement savings are not just a necessity-- they are a critical component of my company's ability to attract and retain skilled employees. QTS has offered a 401(k) from the very beginning. In fact, there was a 401(k) in place with the predecessor company to QTS when I joined that company in 1996. It has long been part of our strategy to attract and retain skilled employees. QTS is not alone in using this strategy. According to a survey conducted by Sharebuilder 401(k), 89 percent of small business owners that offer a 401(k) plan state that this benefit is an important factor for attracting and retaining the best talent. So why is this benefit so critical for QTS? QTS is competing for employees in a marketplace where the skilled workers the company needs are in high demand, not only in the Houston area, but in other parts of the country where the oil and gas industry is growing, such as North Dakota and West Texas. Individuals with these skills will move for higher salaries and better employee benefits. QTS needs attraction and retention tools such as a 401(k) in order to compete for these highly skilled employees. The 401(k) plan that QTS offers is something we use to distinguish our company from others. QTS learned early on that our 401(k) benefit was easy to sell to prospective employees since we were matching part of their contributions. It not only encourages our employees to save for their own retirement, it gave us another benefit to help us edge out our competition in hiring the best prospects. QTS matches 50 percent of an employee's contribution, up to a company maximum contribution of three percent. So, if an employee contributes six percent, it's the same as giving him tax-deferred income of 3 percent of his salary. So why is QTS so generous with its 401(k) plan? It's simple. It costs the company far less to offer generous 401(k) benefits than it does to hire and train a new skilled employee. Turnover is a significant yet hidden expense that can be overlooked by managers. In addition, long-term employees are more loyal and enjoy greater satisfaction in their jobs with these benefits. That, in turn, leads to more productive and engaged employees. Moreover, offering retirement benefits to our employees is the right thing to do, as it allows them to secure their futures. We show our employees that when an average 45 year old contributes to their retirement plan along with our contribution on his behalf, by the time they reach retirement age, they would have saved $150,000. All QTS employees are eligible to participate in our company's 401(k) plan. I would classify 23 of QTS' employee as ``skilled''--people who are welders, CNC machinists, engineers, draftsmen, instrumentation specialists, shop foremen, sales personnel and management. These are the employees QTS has a hard time finding and the company does whatever it takes to keep them. Of these employees, more than 60 percent (14) participate in our 401(k) plan. While our 401(k) plan is important to QTS, there are drawbacks for a small company like mine that wants to offer retirement plans to their employees. Administering these plans is extremely complicated. As I mentioned earlier in my testimony, even though I have 40 years' experience in financial operations in small companies, there is no way I have the time or expertise to understand all of the rules governing the operation of a 401(k). In addition, there is significant risk in managing a 401(k) plan, and that risk and exposure can serve as a deterrent for a small business to offer a 401(k) program. To avoid this risk and complexity, I have contracted with a professional employer organization (PEO) to administer my 401(k) plan. A PEO is a company that provides payroll, human resource, and employee benefits solutions to small and mid- sized companies. One of the services a PEO can provide to its small business clients is access to 401(k) benefits. By using a PEO to access 401(k) benefits, QTS no longer has the administrative burden associated with a 401(k), my personal risk associated with being a plan administrator is minimized, and QTS is able to offer employee benefits that are competitive with larger companies. And we are not the only ones: According to a new study by McBassi and Company, PEOs offer retirement plans to small businesses that would be unlikely to sponsor them otherwise, and their employees participate at much higher rates than small businesses that do not use a PEO. I think it is important for the committee to understand that, in my view, the administrative complexities of 401(k) plan administration are the biggest obstacles to small businesses offering employee retirement benefits. As a CFO, I understand that the deferment of income for tax purposes is the primary reason that 401(k) plans are complex. I understand the need for strong fiduciary standards to protect those who invest their earnings into these plans. And I understand the need for oversight and rules ensuring that participants understand their rights and are fully informed of the risk associated with investing their money in these plans. But these protections and disclosures come at a price, and that price is complexity and a significant administrative burden on plan administrators. The Government Accountability Office (GAO) found that there are 43 million people who work for businesses that employ 100 or fewer people, and only 14 percent of those companies offer retirement benefits to their employees. This data is clear evidence that there are obstacles preventing small companies from offering retirement plans. The GAO and private surveys have found reasons such as complexity, legal liability, and cost as the obstacles to small companies offering retirement benefits. Because of these obstacles, many working Americans do not have access to retirement savings programs. The fact that I have to use an outside administrator speaks to the complexity and administrative burden of retirement plans. Congress should look at ways to both encourage smaller companies to offer retirement benefits to their employees and at the same time look to simplify and streamline the administration of such benefits. Education, outreach, and streamlining regulations are just a few steps that have been suggested to improve access to retirement programs like 401(k)'s. I also hope that this forum helps bring to the attention of policymakers the challenges facing small businesses who want to provide these benefits to their employees, and begins discussions on how to make such plans easier for small businesses to offer to their employees. I would be happy to answer any questions you have. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] The American Institute of Certified Public Accountants (``AICPA'') would like to thank Members of the Committee for the opportunity to submit this statement for the record of the hearing on The Challenge of Retirement Savings for Small Employers, held on October 2, 2013. I am Jeffrey A. Porter, Chair of the AICPA Tax Executive Committee. I am a sole practitioner at Porter & Associates, CPAs, a local firm in Huntington, West Virginia, which concentrates on providing tax planning and business advisory services for local businesses and high net worth individuals. The AICPA is the world's largest member association representing the accounting profession comprised of over 394,000 members in 128 countries and a 125-year heritage of serving the public interest. Our members advise clients on federal, state and international tax matters and prepare income and other tax returns for millions of Americans. Our members provide services to individuals, not-for-profit organizations, small and medium-sized businesses, as well as America's largest businesses. We appreciate the Committee's efforts to promote retirement savings and provide small businesses an opportunity to set up and maintain retirement plans for their owners and employees. Our remarks, which are supportive of this objective, focus on tax and simplification issues impacting many small businesses, specifically: (1) the various types of retirement plan options; (2) consolidation and simplification of the multiple types of tax-favored retirement plans and the rules governing them; (3) top-heavy provisions; and (4) repeal of the requirement that benefits become fully vested upon a partial termination of a qualified retirement plan. Retirement Plan Options The Internal Revenue Code (IRC or ``Code'') provides for more than a dozen tax-favored employer-sponsored retirement planning vehicles,\1\ each subject to different rules pertaining to plan documents, eligibility, contribution limits, tax treatment of contributions and distributions, the availability of loans, portability, nondiscrimination, reporting and disclosure. Although some consolidation of the rules governing these options has been introduced in recent years, further simplification of the confusing array of retirement savings options should be undertaken. --------------------------------------------------------------------------- \1\ Currently the following plans are representative of the variety that may be sponsored by an employer: simplified employee pension (SEP), salary reduction SEP, savings incentive match plan for employees of small employers (SIMPLE), SIMPLE-401(k), profit sharing, money purchase pension, 401(k), 403(b), 457, target benefit, defined benefit, cash balance and the new defined benefit/401(k) combination created in the Pension Protection Act of 2006 (Pub. L. 109-280). When a small business grows and begins to explore options for establishing a retirement plan, the alternatives, and the various rules, can become overwhelming. There are too many options that businesses need to consider before deciding which plan is appropriate for them. Some plans are only available to employers with a certain number of employees, whereas other plans require mandatory contributions or create significant administrative burdens. Such administrative burdens include annual return filings, discrimination testing, and an extensive list of notice requirements with associated penalties for --------------------------------------------------------------------------- failures and delays in distributing such notices to employees. To determine which plan is right for their business, owners must consider their cash flow, projected profitability, anticipated growth of the work force, and expectations by their employees and co-owners. The choices are overwhelming, and many are too complex or expensive for small business owners. Consolidation and Simplification of Retirement Plan Options We recommend that the multiple types of tax-favored retirement plans currently available and the many rules governing such plans be consolidated and simplified to minimize the cost and administrative burden for employers. Possible measures for simplifying the number and complexity of the various types of retirement plan vehicles include: 1. Create a uniform employee contributory deferral type plan. Currently there are four employee contributory deferral type plans: 401(k), 457, 403(b), and SIMPLE plans. Having four variations of the same plan type causes confusion for many plan participants and employers. While we would like to see a more streamlined approach with regards to these types of plans, we also acknowledge that keeping a simple plan as well would benefit small businesses. 2. Eliminate the nondiscrimination tests based on employee pre-tax and Roth deferrals for 401(k) plans. These tests artificially restrict the amount higher-paid employees are entitled to save for retirement by creating limits based on the amount deferred or contributed by lower-paid employees in the same plan. They result in placing greater restrictions on the ability of higher-paid employees to save for retirement than those placed on lower-paid employees. Although the 403(b) plan is of a similar design, there is no comparable test on deferrals for this type plan. There are currently two tests: a) The actual deferral percentage (``ADP'') test which limits the amount highly compensated employees can defer pre-tax or by Roth after-tax contributions by reference to the amount deferred by non-highly compensated employees. This test applies only to a 401(k) plan. b) The actual contribution percentage (``ACP'') test similarly limits the amount of employer matching contributions (which are based on employee contributions) and other employee after-tax contributions that highly compensated employees may receive. This test is applicable for both 401(k) and 403(b) plans. An example of complexity in the rules is as follows: In the case of the traditional 401(k) plan, both the ADP and ACP texts would apply, while the same deferral and match formula in a 403(b) plan would result in only the ACP test being applicable. 3. Create a uniform rule regarding the determination of basis in distributions. Depending on the plan type, there are currently different methodologies to be used to determine basis in a distribution. For example, in a Roth individual retirement account (IRA), basis is considered returned first while in a traditional IRA or 401(k), including Roth 401(k)s, basis is distributed on a pro-rate basis, and distributed based on an algebraic formula if there are a series of payments. In addition, there are complicated rules concerning the aggregation of accounts. For example, traditional IRA accounts with pre-tax and after-tax (not Roth) contributions are aggregated separately from Roth IRA accounts. There are also special basis recovery rules in defined contribution plans that contain pre-tax, after-tax and Roth contributions. 4. Create a uniform rule of attribution. Currently, the rules of attribution are governed by different Code sections which each have subtleties and are used for different purposes: a) Section 267(c) \2\ referenced and modified in determining a disqualified person under prohibited transaction rules. --------------------------------------------------------------------------- \2\ Unless otherwise indicated, all ``section'' references are to the Internal Revenue Code of 1986, as amended (the ``Code''), and to the treasury regulations (the ``Regulations'' or ``Reg.'') promulgated pursuant to the Code. b) Section 318 for determination of highly --------------------------------------------------------------------------- compensated and key employee status. 5. Create a uniform definition for terms to define owners. Currently, there are different definitions for the terms ``highly compensated employee'' and ``key employee.'' A defining factor of a ``highly compensated employee'' is a five- percent owner which is further defined as an individual with a direct or indirect ownership interest of more than five- percent. The ownership rules governing a ``key employee'' consider the five-percent ownership rule but also consider persons owning one-percent with compensation of $150,000 or more annually. 6. Eliminate the required minimum distribution rules. Participants must begin taking distributions beginning at age 70\1/2\ or be subject to penalties. In the case of qualified plans, a less than five-percent owner who continues employment may defer taking distributions until his or her subsequent separation from service. Additionally, in the case of a traditional IRA, the participant is entitled to consolidate multiple accounts, subsequently taking a required minimum distribution from a single IRA; however, in a qualified plan the required minimum distribution must be taken from each plan individually and consolidation is not permitted. If full elimination of required minimum distribution rules is not possible, the age requirement of 70\1/2\ should be addressed. The rules would be better served if the distributions were required to begin on a specific birthday as opposed to the computation of the ``half-year birthday'' for purposes of these regulations. 7. Create uniform rules for early withdrawal penalties. There are currently different rules governing penalties depending on whether the account is an IRA or a qualified plan. An example of this complexity is a distribution for higher education expenses; for an IRA the distribution avoids the ten- percent excise tax, while a hardship distribution from a qualified plan is still subject to the excise tax. The same is true for qualified first-time homebuyer distributions and medical insurance premiums. Top-Heavy Provisions The top-heavy rules were enacted under the Tax Equity and Fiscal Responsibility Act of 1982 (``TEFRA''), and subsequently amended, to protect employees when an employer offers a retirement plan which primarily benefits its ``key employees.'' \3\ Section 416 imposes a minimum vesting period of either six- year graded or three-year cliff and requires a minimum contribution of generally three percent for ``top-heavy'' plans. Retirement plans are considered top-heavy for a year, and therefore subject to the above rules, if the aggregate value of the key employees' accounts exceeds 60 percent of the aggregate value of all of the employees' accounts under the plan.\4\ --------------------------------------------------------------------------- \3\ Generally, a key employee is defined as an officer with compensation in excess of $130,000 (indexed annually), a 5%-or-more owner, or a 1%-or-more owner with compensation in excess of $150,000. IRC section 416(i)(1)(A). \4\ IRC section 416(g)(1)(A)(ii). Based on our members' experiences, the imposition of the top-heavy rules for retirement plans is causing some employers to (1) cease employer contributions to their plan, (2) terminate existing plans, or (3) not adopt a plan at all to cover their employees. This is primarily an issue with small and family-owned businesses sponsoring a 401(k) plan which consists of employee deferrals only, or employee deferrals and --------------------------------------------------------------------------- employer matching contributions. Many small business retirement plans inevitably become subject to the top-heavy provisions for two reasons. First, most small businesses are owned by family members or a close group of individuals. Due to this type of ownership, it is common that the owners remain relatively static over the life of the business. As such, there is frequently very low or no turnover of its key employees. Second, in today's work environment, employee turnover is commonplace. It is not unreasonable for employees to change jobs multiple times over their working careers as personal goals change, their skills improve, or they move geographically. Due to the static ownership of small businesses and the increasingly transitory employee base, it is becoming a certainty that most retirement plans sponsored by small businesses will become top-heavy at some point during the life of the plan. Some small businesses can satisfy the top-heavy requirements. These businesses adopt provisions for their retirement plans to meet safe-harbor designs, such that they either provide for a matching contribution that rises to a statutory level (i.e., four percent for a 401(k) plan) or they provide for a non-elective contribution of at least a statutory rate (i.e., three percent for a 401(k) plan). Unfortunately, many small businesses cannot afford to meet the strict contribution requirements imposed by the top-heavy rules. Their profitability margins and financial situations are such that these contribution levels cannot be attained. During the recent economic downturn, retirement plan contributions-- specifically matching contributions--were an issue for many employers. Many employers which were able to satisfy the safe harbor requirements in the past were no longer able to continue making the same contributions. In too many cases, top-heavy rules become a financial burden by imposing an employer contribution for deferral only plans--where there was never intent for an employer contribution, or by requiring an additional contribution of three percent on top of the matching contribution the employer previously determined as being affordable to their budgetary and cash-flow constraints. As a result, the employers terminate the plan, which significantly diminishes the ability of their employees to save for retirement. Prior to the top-heavy provisions, some employers terminated employees prior to vesting in order to use the forfeited dollars to reduce their contributions to the plan for current and future years. However, at the time these rules were passed, vesting schedules were 10-year cliff and 15-year graded. Employer plans are now subject to minimum vesting periods of either three-year cliff or six-year graded. The Pension Protection Act of 2006 changed the non-top-heavy defined contribution vesting schedule to generally coincide with the top-heavy schedule for contributions made after December 31, 2006. As a result, many defined contribution plans are unaffected by the top-heavy vesting requirements. We recognize that the top-heavy rules were enacted to address the concern that employers will ``churn'' their employee base prior to the participants becoming fully vested. However, based on our members' experiences, smaller employers suffering from these top-heavy rules employ moderate matching formulas--less than those offered in safe-harbor 401(k) designs. Their actual cost of hiring and training employees is much greater than any benefit they might gain from this practice. Although employees who find themselves not covered under an employer-sponsored 401(k) plan could contribute to an individual retirement account, the AICPA thinks that an employer-provided retirement plan is a better option for employees. First, the employees can contribute a higher amount to a 401(k) plan--up to $17,500 for 2013 (or $23,000 for individuals age 50 or older) for pre-tax contributions compared to the contribution limit for IRAs of $5,500 (or $6,500 for individuals age 50 or older).\5\ Next, 401(k) plans generally offer access to more competitive investment alternatives than are accessible to an IRA investor. Finally, if an employer- sponsored plan the employer often pays at least a portion of the fees and the employee is part of a larger group that is likely to be charged a lower fee. --------------------------------------------------------------------------- \5\ IR 2012-77, Oct. 18, 2012. The AICPA supports the protection of employees and their ability to save for retirement. However, the top-heavy rules have become unnecessary due to the enactment of other provisions which protect the interests of employees. For example, section 401(k) plans are generally subject to special discrimination rules (the average deferral percentage test and average contribution percentage test, commonly referred to as the ADP/ACP testing) designed to prevent highly compensated employees \6\ from receiving too much in contributions as compared to other employees.\7\ These plans are also subject to general nondiscrimination rules designed to prevent qualified plans from covering too many highly compensated employees as compared to non-highly compensated employees.\8\ As a result, the non-key employees are protected from employer discrimination regardless of whether the minimum contribution requirements for top-heavy plans are in effect. --------------------------------------------------------------------------- \6\ A highly compensated participant is, in general, a more-than-5% owner in the current or preceding plan year or any employee who in the prior year earned in excess of $110,000 (indexed annually). IRC sections 401(k)(5) and 414(q). \7\ IRC section 401(k)(3) and m(2). \8\ IRC section 410(b). The AICPA recommends an exception from the top-heavy rules for certain defined contribution plans. We think that retirement plans which provide for employee deferrals only and plans which provide for employee deferrals and matching contributions should not be subject to the strict minimum --------------------------------------------------------------------------- contribution requirements as other top-heavy plans. Vesting Upon Partial Plan Termination Section 411(d)(3) requires qualified retirement plans to provide for immediate 100% vesting upon a partial plan termination. In general, a partial plan termination may be deemed to have occurred when significant reductions in the workforce occur in a plan sponsor's business. This section was added to the Code as part of the enactment of the Employee Retirement Income Security Act of 1974 (``ERISA''). At that time, most qualified retirement plans were primarily or entirely employer-funded, and permitted vesting schedules were much longer than schedules that exist today. In the 1970s work environment, the vesting rule was necessary to protect the workers' retirement balances. However, the funding of retirement plans has changed significantly over the last forty years. In the present 401(k) environment, most, and sometimes all, retirement benefits are funded by employees' own contributions which are by law immediately 100% vested and not affected by the vesting rules. In addition, the maximum permitted vesting schedules have been greatly shortened. As a result, to the extent there are employer contributions in a retirement plan most workers are partially or even fully vested by the time an issue of partial termination arises. The immediate vesting rule unfairly punishes small businesses. It is not uncommon for all employers to face a certain amount of turnover in their employee population. Employees can change jobs multiple times over their working careers as personal goals change, their skills improve, or they move geographically. For some employers, their employee base is sufficiently large that their experience closely follows the statistical performance of the labor pool as a whole. However, for small businesses, normal turnover can inadvertently create problems with the partial termination rules. Furthermore, employers have not been given a clear and specific definition of what constitutes a partial plan termination. Employers must instead attempt to apply a series of narrow IRS rulings to their own situation, often by retaining outside counsel. The resulting uncertainty and expense creates an additional administrative burden when small businesses may lack the time and resources to resolve such a legally ambiguous situation. We recommend an amendment to section 411(d)(3) to provide for an exception for ``small plans''--under 25 participants-- such that the partial termination rules do not apply. * * * * * We appreciate the Committee's efforts to promote retirement savings and are available to provide additional input on ways Congress can make further improvements in this area in general and with respect to small businesses. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] FSR SUPPORTS RETIREMENT SECURITY: FSR shares Congress' and the Obama Administration's goal of increasing opportunities for Americans to save and plan for their retirement. It is our belief that providing these opportunities is important because savings increase domestic investment, encourage economic growth, and result in higher wages, financial freedom, and a better standard of living. FSR supports access to a wide-range of retirement products and vehicles to help employers, especially small employers, and employees plan for their retirement, including traditional pensions, 401(k), IRA, and similar retirement savings accounts. The financial services industry, which manages close to 20 trillion in retirement savings,\1\ has played a key role in helping to increase the number of Americans who plan and save for their retirement. Although the U.S. retirement market is projected to grow to nearly $22 trillion by 2016,\2\ more must be done to ensure the retirement security of every American. --------------------------------------------------------------------------- \1\ FSR Research, http://www.fsroundtable.org/fsr/pdfs/2013/ StrengtheningTheUSRetirementSavingsSystem-September.25.2013.pdf \2\ Margarida Correria, U.S. Retirement Market Projected to Hit $22 Trillion by 2016, BANK INV. CONSULTANT, Jan. 30, 2012, http:// www.bankinvestmentconsultant.com/news/cerulli-predicts-retirment- market-will-exceed-22-trillion-by-2016-2677132-1.html. --------------------------------------------------------------------------- TAX INCENTIVES HELP SMALL BUSINESSES OFFER PLANS: The key to whether or not an employer, especially small employer, offers a plan in the first place is the availability of tax incentives. For instance, if a small business owner wants to use a tax-favored vehicle to save for his own retirement, the Tax Code requires that he provide a plan for his employees. It is critical to note that unlike other tax incentives, income contributed to 401(k) and traditional IRA accounts is not a permanent tax deduction or exclusion, it is only a deferral of taxes. When a distribution is made to a plan participant, all amounts (the original income that was deferred plus the investment gains on amounts deferred) are subject to ordinary income tax. One thing we have learned over the last 30 years is that once the right incentives are in place, retirement savings will increase. The median salary deferral to a 401(k) plan is 7%. The median account balance for Baby Boomers rose 33% to $99,320 in 2012. Gen Xers (people born between 1965 and 1978) increased their median savings by 30% to $41,821. According to American Society of Pension Professionals and Actuaries (ASPPA), only 5 percent of employees save if their employer does not offer a retirement plan.\3\ Thus, we know the keys to increasing retirement savings are: --------------------------------------------------------------------------- \3\ Id. at 2. a. Providing incentives to businesses to provide --------------------------------------------------------------------------- plans to their employees; and b. Providing incentives to employees to take advantage of the plans offered to them. REGULATIONS MAY DETER RETIREMENT SAVINGS: Small business owners rely on investment education and guidance from retirement professionals in choosing a plan investment menu to offer to their employees. If this education and guidance is effectively prohibited by the upcoming Department of Labor (DOL) fiduciary duty proposal small business owners will have to either a) select their own investments without the help of a retirement professional and assume fiduciary responsibility; or b) find and pay a third party expert to do that selection, which may be cost prohibitive. Thus, if DOL moves forward with its re-proposal, it is critical that the Administration ensures that the DOL and the Securities & Exchange Commission work together on the substance and the timing of their respective rulemakings, or risk confusing and overlapping regulations on small businesses and retirement professionals. FSR believes governmental policies preserve consumer choices--including the consumers' choice to select the retirement services product that fits their needs, and work with their preferred financial services provider. CONCLUSION: In closing, FSR urges Congress to build on the successes of the current retirement savings system. As a country we need to promote policies to encourage more retirement savings--not less. FSR supports maintaining the current tax incentives, which provide appropriate incentives for employers to offer plans and for employees to participate in the plans that are offered. The current system is working--the number of people saving via DB or DC plans is higher than at any time in history. Thus, there is no need to dismantle and rebuild the retirement system. FSR believes increasing retirement savings should be a national priority and is committed to working with Congress and the Administration on policies that promote retirement savings, and enable the financial services industry to better meet the long-term retirement needs of hard-working Americans. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]