As discussed in my June 27, 2013 post, the U.S. Supreme Court ruled in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. On Aug. 29, 2013, the IRS issued preliminary guidance regarding the effects of Windsor in Revenue Ruling 2013-17.
On Oct. 4, 2013, ASPPA submitted a comment letter to the IRS regarding the “further guidance on the retroactive application of the Supreme Court’s opinion in Windsor to … employee benefit plans” that the IRS stated it would issue in Revenue Ruling 2013-17. In the comment letter, ASPPA made the following recommendations to the IRS:
• Plan documents should not require interim amendments. A definition of “spouse” should not be required within plan or related documents and, where amendments may be required to correct gender-specific spousal definition language in a plan or related document or where certain options are given to same-gender couples, interim amendments should not be required before the end of the plan’s next remedial amendment cycle.
• Plan distributions under pre-Windsor rules should be deemed in compliance. Plans completing distributions in good faith under the pre-Windsor rules should be specifically acknowledged by the IRS as complying in both form and operation with the plan document, the Internal Revenue Code and ERISA.
• Pre-Windsor actuarial valuations should not be required to be revised. Regardless of whether a plan amendment is required to comply with the Windsor decision, liabilities arising from the decision should be treated as liabilities resulting from a plan amendment (or a plan loss) when such amendment is actually adopted or legally required to be adopted.
• Participant and spouse notifications should not be required. There should be no independent requirement that a plan administrator affirmatively notify participants and their spouses of the changes to the rules resulting from the Windsor decision.
• No changes should be required to testing results for prior plan years. No changes should be required regarding non-discrimination and coverage testing for plan years beginning prior to the effective date of the Windsor decision.
On Sept. 18, 2013, the Department of Labor also issued initial guidance on the treatment of same-gender couples under ERISA as a result of the Windsor decision, in Technical Release 2013-04. The ASPPA Government Affairs Committee is working on a comment letter to the DOL regarding issues not addressed in the Technical Release.
Ronald J. Triche, Esq., APM is Assistant General Counsel and Director of Government Affairs of ASPPA.
