DOL Will Re-Propose DOL Regulation to Change the Definition of Fiduciary

Posted by Aaron Juckett, CPA, CPC, QPA, QKA on Tue, Sep 20, 2011
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On Monday the DOL announced it would Re-Propose the Proposed DOL Regulations that would make ESOP appraisers a plan fiduciary. Since last October, the ESOP community, including the ESOP Association, ESOP Appraisers, and many individual ESOP companies and professionals, hasbeen spending a lot of time and resources protesting the DOL proposed regulation and explaining the Reasons to Remove the Requirement that ESOP Appraisers are Fiduciaries from the Proposed DOL Regulations.

The ESOP Association has been a leader in the efforts. It notes in its latest blog post that, while this is good news, it isn't over yet:

Since late October 2010, The ESOP Association, and the ESOP community, has protested vigorously against the Department of Labor's (DOL) proposed regulation to make all appraisers of private ESOP company stock ERISA fiduciaries. Today, the DOL issued a press release announcing that it would issue a new version of the regulation revising the definition of ERISA fiduciaries in January 2012, and begin the comment period, in essence, all over again.

This news is a good trend line for pro-ESOP voices. On October 22, 2010, to use an analogy, when the "game" started, the ESOP community was already down two touchdowns. Today, we can say we're at half time, and we're tied going into the locker room.

But, there is still plenty of play in the months leading up to 2012 and beyond. For example, the DOL press release hints at leaving in the provision making ESOP appraisers ERISA fiduciaries when they value stock being acquired by a private company. Read the release here.

Such an outcome would dry up ESOP transactions in our view, and soon the number of ESOPs would dwindle, our voice in DC would be weaker, and ESOP benefits would be devastated.

The Wall Street Journal offered its second opinion piece on the topic in Defusing a Savings Bomb:

The U.S. economy hasn't had much good news lately, but here's one small victory: The Department of Labor yesterday withdrew a proposed rule that would have regulated out of business large swathes of the investment advisory industry and increased the cost of professional financial advice to millions of Americans…The ruckus erupted when Assistant Secretary Phyllis Borzi, the chief of the Employee Benefits Security Administration, pushed a rule to subject more financial advisers to a fiduciary standard in order to solve "conflicts of interest" within the savings advice industry that her department never defined nor quantified. As recently as a few weeks ago, Ms. Borzi wanted a final rule by early 2012.

Topics: legislation, rules and regulations, ESOP, employee stock ownership plan

Aaron Juckett, CPA, CPC, QPA, QKA
Written by Aaron Juckett, CPA, CPC, QPA, QKA

Aaron is President and Founder of ESOP Partners and provides implementation, administration, and consulting services to hundreds of companies. He is a member of The ESOP Association (TEA) and the National Center for Employee Ownership (NCEO).

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