According to "Now Wall Street Wants Your Pension, Too" by Matthew Goldstein (Business Week, August 5, 2008), troubled banks have no business fiddling around with pension caretaking. Citing a $2.3 trillion "pension honey pot" that could grow to $7+ trillion in a few years, Goldstein says pension buyouts would be a great prize for investment banks, hedge funds, private equity funds and insurers. (Editor's Note: I've seen estimates of much larger numbers but the message is the same. There is thought to be "gold in them thar hills.)
What motivates advocates of the pension transfer movement? Let me count the ways. More than a few corporations may seize the opportunity to clean up their balance sheets and income statements as new accounting rules kick in, making "problems" more visible to shareholders. Some posit that taxpayers benefit if certain plans are transferred to stronger financial buyers, giving these plan sponsors a fighting chance to steer clear of bankruptcy court. As a result, the Pension Benefit Guaranty Corporation ("PBGC"), could arguably stablilize or even reduce its $14+ billion deficit. (Though the PBGC is technically funded by insurance premiums paid by plan sponsors, experts suggest that mounting IOUs could potentially result in a bailout by Uncle Sam.)
This trend to take over pension liabilities by third parties, popular in the UK, seems to have hit a snag in the U.S. According to an August 6, 2008 press release ("Treasury, IRS Issue Ruling Preventing Certain Pension Transfers"), newly issued Revenue Ruling 2008-45 states that "a transfer of a tax-qualified pension plan from an employer to an unrelated taxpayer when the transfer is not connected with a transfer of significant business assets, operations, or employees, is not permissible under current law. This is clearly a big disappointment to Wall Street as banks have been busy at work, assembling teams to value pension liabilities and trade them, in anticipation of developing a lucrative transfer business.
Accompanying this somewhat rare tax promulgation, readers are told of legislative preferences on the part of the current Administration (IRS, U.S. Department of Labor, U.S. Department of Commerce and the Pension Benefit Guaranty Corporation) that might eventually open the door to pension liability sales. Relevant text is excerpted below:
"Under the legislative framework, a pension plan (or portion of a plan) under which benefits are no longer accruing (i.e. a frozen plan) could be transferred to an entity unrelated to the employer (or former employer) of the participants in the plan, provided that certain conditions are met. The conditions would reflect the following fundamental requirements:
- Plan participants, their representatives, and ERISA regulators would be required to receive advance notice of a plan transfer, and the parties to the transaction would be required to provide regulators information necessary to review and approve the proposed transaction.
- Only financially strong entities in well-regulated sectors would be permitted to acquire a pension plan in a plan transfer transaction.
- The parties to the transaction would be required to demonstrate that participants' benefits and the pension insurance system would be exposed to less risk as a result of the transfer, and that the transfer would be in the best interests of the participants and beneficiaries.
- Limitations on transfers would be imposed to limit undue concentration of risk.
- Transferees and members of their controlled groups would assume full responsibility for the liabilities of transferred plan and would comply with post-transaction reporting and fiduciary requirements.
- Subsequent transfer transactions would be subject to the rules applicable to original transfer transactions."
Don't count the financial institutions out yet. No doubt the next Congress is likely to receive a lot of inquiries from the bank lobby to initiate legislation in favor of pension buyouts. On the positive side, well-capitalized and properly managed banks and other types of money powerhouses could draw on sophisticated risk analytics to strengthen plans. In contrast, poor risk management practices could worsen things. (See "Bank Risk Managers - Missing in Action," November 26, 2007.)
The fiduciary question is of course a big one. Is there a possibility that a financial institution takes over a pension plan and finds itself in the uncomfortable position of being loyal to plan participants at the expense of shareholders or vice versa? Cynthia Mallett, Vice President, Corporate Benefit Funding, Met Life adds that "Stranger-owned pension plans raise both philosophical and public policy issues, none more telling than the potential for placing plan participants' interests in the hands of unrelated investors who are not regulated in the same fashion as insurers."
ERISA Attorney Dan Wintz, partner with Fraser Stryker PC, offers the following insight. "While the practice of 'selling' pension plans and transferring their sponsorship to unrelated companies (that is, speculator or investment companies that do not employ the participants covered by the plan) has not yet become widespread, it is heartening to see that the Internal Revenue Service intervened early. However, the Ruling may be overly broad in its application and could prohibit or impede some plan transfers in legitimate re-organizations or other transactions that do not involve the direct transfer of business assets, operations, or employees from the employer to the unrelated taxpayer which will maintain the plan. We will have to see whether this is an absolute prohibition (as appears to be stated in the Ruling) or if it can be applied on a 'facts and circumstances' basis where there is a legitimate business purpose for the arrangement and there are protections for the plan's participants."
A fellow of the Society of Actuaries, David Godofsky, partner with Alston + Bird LLP and leader of the Employee Benefits and Executive Compensation Group, concurs that buyouts may serve a vital function. His comments are provided below.
"As for the meaning, the ruling was rather narrowly tailored to a specific fact pattern, which has been widely discussed and known as "selling" pension plans. Here is a very simplified version of the basic idea:
- Company X has a frozen pension plan with assets of $100 million and liabilities of $100 million. The liabilities are measured by reference to mortality tables and interest rates that are intended to approximate the cost of buying annuities, or the cost of funding those pension benefits when very safe investments are used. In other words, the assumed rate of return on the $100 million of assets is very low, reflecting investments that are nearly risk free.
- However, Company Y believes it can invest the assets of the plan to achieve a higher rate of return. If it does so successfully, there will be money left over when all benefits are satisfied... possibly a LOT of money.
- So Company Y offers to buy the pension plan from Company X. A shell corporation ("ShellCo") is formed as a sub of Company X, and then ShellCo assumes the pension plan from Company X. Company X sells ShellCo to Company Y for $2 million.
- Company Y has no employees and no other assets. Company Y invests the $100 million in investments designed to beat the low assumed rate of return. The assets grow to $120.
- Company Y then buys annuities to cover the liability for $100 million, and is left with a pension plan with no liabilities and $20 million. It then finds a company with an underfunded plan - Company Z.
- Company Z is willing to buy ShellCo for $20 million, and merges the pension plan into its own. So, everyone comes out ahead. X is ahead by $2 million and Y is ahead by $18 million.
- BUT, suppose that Company Y doesn't do so well. It invests the money aggressively, and the assets drop to $80 million instead of increasing to $120 million. Now, the owner of Company Y is insulated, and the PBGC steps in to cover the $20 million underfunding. X is now ahead by $2 million, Y has lost its $2 million investment. As you can see, if Y invests aggressively enough, it has a great upside and a limited downside. This is what is known as "heads I win, tails you lose."
The IRS ruling focused on whether Company Y has an relationship with the employees - that was the way they chose to get to this transaction. However, what is really going on is whether you can take over pension liabilities from another company and try to make a profit by investing the assets to "beat" the actuarially assumed rate of return. Obviously Company X can do that, but so can Company Y. The difference is that X is a real company with real employees and presumably assets at risk. With Company Y, you don't quite know what you have. There is a way of selling pension liabilities - it is to buy annuities. Insurance companies sell annuities and they have to maintain reserves and invest their assets in a way that avoids losses. Basically, the Company Y's of the world wanted to do the same thing without having to comply with all those pesky insurance regulations.
Bottom line - the transaction that the IRS prohibited has the potential for an increased risk to the PBGC and a corresponding gain to the buyer (reward without risk). Now, the challenge for the investment firms that wanted to do this is to come up with a regulatory approach that has financial protections that are as strong as the insurance regulations."
Editor's Notes: There are numerous articles about the UK buyout experience. A few of them are listed below, along with the link to the July 21, 2008 report about plan freezes, published by the U.S. Government Accountability Office ("GAO").
Expect more news on the topic of pension buyouts and transfers.
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