Recently, the Department of Labor (DOL) has focused its attention on eliminating the practice of revenue sharing within qualified defined contribution retirement plans. Pointing to the Employee Retirement Income Security Act of 1974 (“ERISA”), opponents claim that the practice of revenue sharing is at odds with ERISA’s strict fiduciary duties of loyalty and prudence.
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One way service providers are compensated for their work is by means of revenue sharing, or the process by which providers receive a mutual fund payment funded directly by the plan’s investments. Unfortunately, due to the complicated nature associated with retirement plan administration, the process isn’t always as transparent or fair as it should be. Consider the following issues
1. Fund Expense Ratio
Payments dispersed through revenue sharing are considered expenses for the mutual funds that pay them, which are then reported in the fund’s expense ratio. Generally speaking, funds that pay revenue sharing will have a higher expense ratio than those that don’t. Concerns arise when one considers that 401(k) plan fiduciaries have an obligation under ERISA to take cost (including expense ratios) into account when evaluating the appropriateness of funds that are being considered.
While cost is only one of the factors being considered during the evaluation of funds, if a fiduciary decides to move forward with a more expensive fund that pays revenue sharing, they must document the reasoning behind their selection. For example, the higher cost could be justified by the fiduciary’s reasonable anticipation of superior performance. On the other hand, if the higher cost is due to the fact that the mutual fund is paying all or part of the service provider’s compensation, the cost of revenue sharing to the plan would have to be offset by a reduction in the plan’s expenses that the plan would otherwise pay a service provider directly.
2. Excessive Compensation
Under ERISA, plan fiduciaries must ensure the total amount of compensation paid to a service provider is reasonable. In doing so, plan fiduciaries have an obligation under ERISA to understand and monitor revenue sharing payments made to the plan’s service providers. Excessive compensation concerns can be avoided by recapturing revenue sharing, which (either through a “complete recapture” or a “partial recapture”) allows all revenue sharing funds or a portion of revenue sharing funds to be paid back to the plan – preventing the plan provider’s total compensation from exceeding the reasonable compensation threshold. Plan fiduciaries can also avoid excessive compensation from occurring by simply avoiding funds that pay revenue sharing. This option not only ends the threat of excessive compensation, it eliminates the responsibility of monitoring revenue sharing activity. Just remember that eliminating the revenue sharing option may not be the best solution. Talk to a retirement plan expert for additional insight.
3. Allocation Fairness
Costs associated with provider services might fluctuate based on the number of participants enrolled in a plan. For that reason, plan fiduciaries will allocate costs equally among all participants to ensure fairness. Revenue sharing, however, makes fairness unlikely. Oftentimes, service provider fees are disproportionate among participants as they are influenced by funds that pay inexplicably greater amounts of revenue sharing. Then, even if the revenue sharing is recaptured, additional questions arise, such as to how the recaptured funds will be used. If used to pay plan expenses that would or should otherwise be borne equally by all plan participants, for example, those investing in the revenue sharing funds still have the burden of paying a disproportionate share of expenses.
While the DOL has not addressed the allocation of revenue sharing directly, it has provided guidance that suggests plan fiduciaries have a duty under ERISA to consider the proper use of revenue sharing payments.
As fiduciary it’s your responsibility to engage in a process of evaluating the financial impact an activity has on your plan in an effort to make reasoned decisions that support your course of action. Email Rea & Associates to learn more.
By Paul McEwan, CPA, MTax, AIFA (New Philadelphia office)
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