Treasury and the Internal Revenue Service (IRS) have announced increased enforcement in connection with employee retention tax credit (ERTC) claims. The agencies are warning about more scrutiny as a result of what they call massive fraud in the pandemic-era tax rule. Now, some in Congress are pushing back, concerned that legitimate claims are not being paid as a result of this increased scrutiny. In addition, Congressional tax writers are looking at the ERTC as a possible source of offsetting revenue for the emerging tax bill (see story below).

Currently there are two principal tracks for tax legislation in 2024. The first is an emerging $78 billion package aimed at providing a combination of business and individual tax relief in certain discreet areas. The second is a bigger picture bill that would address the fact that more than half the tax code is scheduled to expire at the end of 2025. Both have significant implications for NAIFA members and their clients.

Last month, the Department of Labor (DOL) proposed rescission of the 2018 association health plan (AHP) regulations. AHPs are designed to allow small employers to band together to achieve cost-effective health insurance availability.

The Centers for Medicare and Medicaid Services (CMS) has announced new cost-sharing limits and required contribution percentages for the 2025 benefit year. For the 2025 calendar year, the self-only coverage annual limitation on cost-sharing is $9,200. It is $18,400 for other than self-only coverage.

On January 8, President Biden officially renominated Julie Sue as Secretary of Labor. Su failed to win the votes needed to confirm her last year, but Senate leadership pulled her nomination from the floor rather than allowing a vote against her. Su is currently serving as acting DOL Secretary.

At the NAIC’s Fall Meeting in Orlando, Florida (November 30 – December 3), NAIFA’s Policy Director Roger Moore testified against the Department of Labor’s proposed fiduciary-only rule during the Life and Annuities (A) Committee meeting, commenting that the rule will harm lower- and middle-income families. Moore was joined by representatives from coalition partners in expressing strong support for the NAIC’s efforts opposing DOL’s actions.

NAIFA testified on the first day of the two-day (December 12-13) Department of Labor (DOL) fiduciary rule hearing. President Bryon Holz, who appeared with one of his clients, represented NAIFA, telling DOL of the harm its proposed rule would cause for middle-income retirement investors. NAIFA will also submit formal comments to the DOL ahead of the January 2 deadline for close of comments.

As part of NAIFA’s National Leadership Conference, 248 NAIFA leaders from around the country spent December 5 on Capitol Hill, asking lawmakers to support our efforts to kill the Department of Labor’s (DOL’s) proposed fiduciary rule and exempt financial advisors from its worker classification/independent contractor proposed rule.

On November 15, Congress enacted, and on November 17, President Biden signed into law a continuing resolution (CR) that extends current funding for the government’s discretionary spending until early in 2024. It was a two-part extension that was fraught with political peril. Renewed debate—and risk—will peak again right after the holidays.

On September 28, the House Ways & Means Committee approved legislation, HR 5687, that expands health savings account (HSA) rules to include an increase in the out-of-pocket costs associated with the HSA’s accompanying high deductible health plans (HDHPs). Those limits currently are $7,500 for self-only coverage, $15,000 for family coverage, and $1,000 in catch-up contribution authority. Under current law, HSA contribution limits are much lower--$3,850 for self-only HSAs and $7,750 for HSA owners with family coverage.

On September 14, the Internal Revenue Service (IRS) announced it had stopped processing all new coronavirus-era Employee Retention Tax Credit (ERTC) claims, and that claims submitted prior to September 14 will be subject to enhanced examination and considerable delay before payment of those claims it determines to be valid. The IRS actions are in light of reports of rampant fraud among those seeking to claim the ERTC.

On September 28, the Department of Labor’s (DOL’s) Wage and Hour Division (WHD) sent to the White House’s Office of Management and Budget (OMB) for pre-release review (and authorization to release) its final new rules on worker classification.

There is a slew of pending regulations on such issues as the fiduciary rule, retirement savings, and health insurance nearing release. Below is a summary of some of the ones that will have the most impact.

A Texas judge has ruled against a challenge to Biden Administration environmental, social, and governance (ESG) rules that allow fiduciaries to consider ESG factors in selecting retirement plan investment choices. House action to roll back the rules is pending.

On September 29, the U.S. Securities and Exchange Commission issued a proposed rule to implement the Registration for Index-Linked Annuities (RILA) Act, which directed the SEC to devise a new form for annuity issuers to use when filing registered index-linked annuities (RILAs). That legislation was enacted in December 2022 as part of the Consolidated Appropriations Act, 2023 which also included the Secure 2.0 Act.

In Notice 2023-62, the IRS and Treasury clarified that many catch-up contributions for 2024-2025 will not have to be Roth contributions for taxpayers earning $145,00/year or more.

On September 8, the Department of Labor’s (DOL’s) Employee Benefits Security Administration (EBSA) sent to the White House’s Office of Information and Regulatory Affairs (OIRA) a notice of proposed rulemaking (NPRM) on new fiduciary duty rules applicable to advisors on retirement savings. Details of what the agency is proposing are as yet unknown, but speculation suggests its focus is on insurance-related advice, and on rollovers from retirement plans to individual IRAs.

Lawmakers returned to Washington after a six-week August recess with just two weeks in which to provide funding for the entirety of the discretionary spending available to the federal government. Other must-pass legislation, also due by October 1, further complicates September. And the politics are extremely difficult for all of this must-do legislation. A number of issues of concern to NAIFA could be caught up in what looks like will be a brutal month (or four).

On September 11, NAIFA submitted comments on the tri-agency (Departments of Health & Human Services (HHS), Labor (DOL) and Treasury) proposed regulations on short-term limited duration (STLD) health insurance, and on fixed payment (indemnity) health insurance.

On August 30, the Department of Labor (DOL) released a new proposed regulation on the white-collar exception to the Fair Labor Standards Act’s (FLSA’s) overtime rules. Generally, DOL proposes that the salary threshold rise to $55,068/year (and suggests the number could go higher by the time the proposal is finalized), and that it be updated automatically every three years.