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entitled 'Retirement Savings: Better Information and Sponsor Guidance 
Could Improve Oversight and Reduce Fees for Participants' which was 
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Report to the Chairman, Committee on Ways and Means, House of 
Representatives: 

United States Government Accountability Office: 
GAO: 

September 2009: 

Retirement Savings: 

Better Information and Sponsor Guidance Could Improve Oversight and 
Reduce Fees for Participants: 

GAO-09-641: 

GAO Highlights: 

Highlights of GAO-09-641, a report to the Chairman, Committee on Ways 
and Means, House of Representatives. 

Why GAO Did This Study: 

American workers increasingly rely on defined contribution (DC) plans 
like 401(k) plans and individual retirement accounts (IRA) for 
retirement income. Together with other DC plans—401(a), 403(b), and 457 
plans—these accounts hold about $7.1 trillion. As workers accrue 
earnings on their investments, they also pay a number of fees that may 
significantly decrease retirement savings over the course of a career. 

GAO examined: (1) the types of fees charged to participants and 
investments of various DC plans; (2) how DC plan sponsor actions affect 
participant fees; (3) how fee disclosure requirements vary; and (4) the 
effectiveness of DC plan oversight. GAO reviewed laws and regulations 
and consulted with experts, federal officials, service providers, and 
six plan sponsors. 

What GAO Found: 

Participants in DC plans and IRAs generally pay the same types of fees, 
regardless of the plan in which they are enrolled, such as investment 
management fees. However, participants in some plans are more likely to 
invest in products that may have higher fees. For example, we found 
that participants in 403(b) plans and individual IRAs are more likely 
to invest in products like individual variable annuities or retail 
mutual funds, which frequently charge more than other investments. 
According to experts, one reason for the different investments is that 
many 403(b) plan sponsors do not make group products available to 
participants. 

DC plan sponsors generally take certain actions that decrease 
participants’ fees. Sponsors can help reduce participants’ fees by, for 
example, offering cheaper investment products in which participants may 
choose to invest, like low-cost mutual funds. Sponsors may also pool 
assets to obtain pricing advantages. 401(k) and 401(a) plan sponsors 
frequently pool participants’ assets to realize lower fees in mutual 
funds, but sponsors of 403(b) plans often do not. Instead, many 403(b) 
plan sponsors keep sponsor involvement to a minimum, which limits the 
opportunities to pool assets and decrease fees. 

Fee disclosure requirements vary depending on plan regulations and 
investment regulations. Sponsors of plans subject to Title I of the 
Employee Retirement Income Security Act of 1974 (ERISA)—which was 
enacted in part to protect the interests of employee benefit plan 
participants—are required to disclose certain documents to 
participants, which may or may not describe fees. For plans not subject 
to these laws, such as state and local government plans, some states 
impose disclosure requirements, and some do not. Fee disclosure 
requirements also vary based on the type of investment product in which 
participants invest. The Securities and Exchange Commission regulates 
some investment products, like mutual funds, while others are regulated 
by states’ insurance agencies. Because different regulators require 
different disclosures, participants in DC plans and IRAs can invest in 
similar products but receive different information on fees.  

Labor oversees disclosure for participants of certain DC plans, while 
IRS oversees tax laws that underlie all DC plans, but both lack 
information that could strengthen oversight. Labor is responsible for 
enforcing requirements for disclosure—which may include fees—and the 
requirement that fiduciaries for some plans must ensure reasonable 
fees, and has proposed regulations to improve fee disclosure. However, 
Labor does not have the specific authority to collect information to 
help ensure that sponsors of certain 403(b) plans continue to protect 
participants’ interests. While IRS does not oversee fees or fee 
disclosure, IRS oversees DC plans’ compliance with the tax code. IRS 
does not collect information to easily enforce 457(b) plans’ 
contribution limits and detect violations that may reduce federal tax 
revenue. In addition, IRS and other regulators do not routinely share 
information with one another to use resources effectively and help 
enforce a rule requiring reasonable fees. 

What GAO Recommends: 

Congress should consider (1) amending ERISA to require sponsors to 
disclose fee information to facilitate comparisons, and (2) giving the 
Department of Labor (Labor) specific authority over certain plans. 
Also, GAO recommends that the Internal Revenue Service (IRS) develop 
guidance on sponsor involvement, collect additional data on 457(b) 
plans, and share more information with financial regulators. Labor and 
IRS agreed with our recommendations, although IRS stated that it will 
continue sharing information with regulators using its current methods. 

View [hyperlink, http://www.gao.gov/products/GAO-09-641] or key 
components. For more information, contact Barbara Bovbjerg at (202) 512-
7215 or bovbjergb@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

Participants in Different Plans and IRAs Pay the Same Types of Fees, 
but Investment Choices Can Affect Fee Amounts: 

Certain Sponsor Actions Decrease Participants' Fees, but Some Sponsors 
Take Fewer Actions than Others: 

Participants Receive Different Fee Information Depending on ERISA 
Coverage and Regulator, Limiting Participants' Ability to Compare 
Investment Options: 

Oversight of Fees and DC Plans Will Likely Improve with Recent 
Regulations, but IRS and Labor Still Lack Information That Could 
Strengthen Oversight: 

Conclusions: 

Matters for Congressional Consideration: 

Recommendations: 

Agency Comments and Our Evaluation: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Comments from the Internal Revenue Service: 

Appendix III: Comments from the Department of Labor: 

Appendix IV: Characteristics of DC Plans and IRAs: 

Appendix V: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Employers Eligible to Establish DC Plans and IRAs: 

Table 2: Estimated Number of DC Plans and Participants, 2007: 

Table 3: Tax-Deferred Contribution Limits for DC Plans, 2009: 

Table 4: Opportunities for Rollovers and Transfers of Assets among 
Plans and IRAs: 

Table 5: Regulators That Oversee DC Plans by Type of Employer: 

Table 6: Fees Associated with Three Common Investment Products: 

Table 7: Administrative Fees Associated with Plans: 

Table 8: Required Disclosure Documents to All Participants in Plans 
Subject to Title I of ERISA: 

Table 9: Required Fee Disclosure Information, by Regulator: 

Table 10: Estimated Total Assets for DC Plans and IRAs, 2008: 

Table 11: Estimated Contributions to DC Plans, 2007: 

Table 12: Estimated Contributions to Individual IRA Accounts, SEP, and 
SIMPLE Accounts, 2006: 

Table 13: Estimated Number of Individual IRA Account Owners and 
Individuals Contributing to Employer-Sponsored IRAs, 2006: 

Figures: 

Figure 1: Effect of a 1-Percentage Point in Higher Annual Fees on a 
$20,000 DC Plan Balance Invested over 20 Years: 

Figure 2: Oversight of Fee Information Disclosed to Retirement Plan 
Participants: 

Figure 3: IRS Form W-2, Wage and Tax Statement, with Emphasis on Box 
12, for Retirement Plan Contributions: 

Figure 4: Form W-2 Instructions: 

Abbreviations: 

CIF: collective investment funds: 

DB: defined benefit: 

DC: defined contribution: 

ERISA: Employee Retirement Income Security Act: 

ESOP: employee stock ownership plan: 

IRA: individual retirement account: 

I.R.C.: Internal Revenue Code: 

IRS: Internal Revenue Service: 

Labor: Department of Labor: 

MOU: memorandum of understanding: 

NAIC: National Association of Insurance Commissioners: 

OCC: Office of the Comptroller of the Currency: 

RFP: request for proposal: 

SEC: Securities and Exchange Commission: 

SIMPLE: Savings Incentive Match Plan: 

[End of section] 

United States Government Accountability Office: 
Washington, DC 20548: 

September 4, 2009: 

The Honorable Charles B. Rangel:
Chairman:
Committee on Ways and Means:
House of Representatives:
Dear Mr. Chairman: 

American workers increasingly rely on 401(k) plans and individual 
retirement accounts (IRA) for retirement income. Besides 401(k) plans, 
lesser-known defined contribution (DC) plans--plans in which retirement 
savings are based on contributions and the performance of the 
investments in individual accounts--can provide opportunities for 
employers and employees to make tax-deferred contributions to 
retirement savings accounts. These other DC plans include 401(a), 
[Footnote 1] 403(b), 457(b), and 457(f) plans. More than 49 million 
U.S. workers participate in employer-sponsored DC retirement plans, and 
50 million have IRAs. Together, these retirement savings accounts hold 
about $7.1 trillion in assets. 

In recent years, policymakers have focused on the oversight of 401(k) 
plans and the fees charged to 401(k) plan participants. Fees are one of 
many factors--such as the historical performance and investment risk 
for each plan option--participants should consider when investing in a 
retirement plan because fees can significantly decrease retirement 
savings over the course of a career. In 2006, we reported that even a 
small fee deducted from a worker's assets annually could represent a 
large amount of money years later had it remained in the account to be 
reinvested and that 401(k) plan participants do not always receive 
information on the fees they are being charged.[Footnote 2] Given the 
current economic environment, regulators, plan sponsors, and workers 
have reason to be increasingly worried about the performance of their 
retirement accounts. 

The types of fees charged to participants of 401(k) plans have led to 
questions about what types of fees are charged to participants in other 
types of DC plans and IRAs and whether participants across DC plans are 
getting the same information disclosed about fees to them. Similarly, 
questions have also been raised about how other types of DC plans are 
overseen. In light of the uncertainty about fees, disclosure to 
participants, and oversight of these plans and IRAs, the Chairman of 
the House Committee on Ways and Means asked GAO to examine other 401(a) 
plans, 403(b) plans, 457 plans, and IRAs to address the following 
questions: (1) How do the types of fees charged to participants and 
investments of various DC plans differ? (2) How do DC plan sponsor 
actions affect participants' fees? (3) How do fee disclosure 
requirements vary? and (4) How effective is the oversight of DC plans? 

To explain how the types of fees charged to participants and 
investments in various DC plans differ, we consulted with a number of 
academic, industry, and association experts and obtained fee 
information from selected service providers. To determine how DC plan 
sponsor actions affect participant fees, we consulted with industry 
experts, as well as 11 service providers and 6 plan sponsors. To 
outline how fee disclosure varies by plan, we interviewed staff from 
relevant federal agencies, state insurance regulators, and national 
experts. We also conducted structured interviews with 11 service 
providers. To describe the effectiveness of DC plan oversight, we 
interviewed regulators and reviewed documentation, laws, and 
regulations. 

We conducted this performance audit from June 2008 through September 
2009 in accordance with generally accepted government auditing 
standards. Those standards require that we plan and perform the audit 
to obtain sufficient, appropriate evidence to provide a reasonable 
basis for our findings and conclusions based on our audit objectives. 
We believe that the evidence obtained provides a reasonable basis for 
our findings and conclusions based on our audit objectives. 

Background: 

Pension plans are classified either as defined benefit (DB) or as 
defined contribution (DC) plans.[Footnote 3] The benefits participants 
receive from DC plans are based on the amount of money in their 
individual accounts. The funds in these accounts can fluctuate over 
time as participants and employers make contributions and as the value 
of the investments rises and falls. 

Role of Employer and Participants in DC Plans: 

Employers and participants both play roles in a DC plan. Employers 
generally establish a plan, becoming the plan's "sponsor." Sponsors' 
roles vary depending on how the sponsor chooses to operate the plan or 
the type of plan. Some sponsors activities include: 

* Contributing to participants' accounts; 

* Deciding upon the investment options from which participants may 
choose; 

* Processing participants' contributions to send to investment service 
providers; 

* Keeping track of participants' investment choices, contributions, and 
other record-keeping; and: 

* Paying for the costs associated with maintaining the plan. 

Participants' role in DC plans can also vary significantly depending on 
how the sponsor operates the plan, and the type of plan. Some 
participant activities include: 

* Contributing to individual accounts; 

* Choosing among investment options; 

* Transferring assets to a different plan; and: 

* Paying for costs associated with participating in the plan. 

Different types of DC plans: 

There are several types of DC plans, each one named for a section of 
the Internal Revenue Code (I.R.C.): 

* In "401(a) plans," participants qualify for an income tax deferral 
under section 401(a) of the I.R.C. One type of 401(a) plan is a money 
purchase plan. Sponsors of these plans are required to make specified 
contributions to participants' accounts. Profit sharing plans can also 
be created under section 401(a). These plans are similar to money 
purchase plans, but sponsors can decide each year whether or not to 
make a contribution.[Footnote 4] 

* 401(k) plans are a type of 401(a) plan, typically a profit-sharing 
plan. Both sponsors and participants are permitted pre-tax 
contributions in 401(k) plans. 

* 403(b) plans are similar to 401(k) plans, in that they typically 
permit both sponsors and participants to make pre-tax contributions, 
but are designed for public education entities and tax-exempt 
organizations that operate under I.R.C. §501(c)(3). Participants in 
these plans are generally limited to investing in annuity contracts 
issued by insurance companies and custodial accounts invested in mutual 
funds.[Footnote 5] 

* 457(b) plans are also like 401(k) and 403(b) plans in that they 
typically permit both sponsors and participants to make pre-tax 
contributions. 457(b) plans can be one of two types. 457(b) 
governmental plans are usually open to all employees at a state or 
local government, and are similar to some other DC plans in that 
contributions are set aside for the participants in a trust. In 
contrast, 457(b) tax-exempt plans usually limit participation to a 
group of managerial or highly compensated employees, and are unfunded. 
That is, the amounts deferred must remain the sole property of the tax- 
exempt sponsor, subject only to the claims of general creditors, until 
the amounts are made available to the participant or beneficiary. 

* 457(f) plans are typically designed for highly compensated employees. 
457(f) plans are generally "unfunded;" that is, sponsors do not have to 
set aside assets for participants. Instead, sponsors make a promise to 
pay participants some amount at a later date.[Footnote 6] 

In addition to DC plans, individuals can save for retirement in 
traditional IRAs, and employer-sponsored IRAs--Savings Incentive Match 
Plans for Employees (SIMPLE) and Simplified Employee Pension (SEP). 
Traditional IRAs allow eligible individuals to make tax-deductible 
contributions and accumulate tax-deferred investment earnings. 
Distributions from these accounts are generally subject to tax. 
[Footnote 7] Another type of individual IRA, the Roth IRA, allows 
eligible individuals to make after-tax contributions; distributions are 
then generally tax-free. SIMPLE IRAs allow small employers to either 
match participating employee contributions or to contribute a fixed 
percentage of all eligible employees' pay.[Footnote 8] SEP IRAs allow 
employers of any size to make voluntary tax deductible contributions 
into traditional IRAs for themselves and their employees. Contributions 
to all IRAs may not exceed certain limits. 

As shown in table 1, different types of employers are eligible to 
establish various types of DC plans and IRAs. For example, all types of 
employers can establish a 401(a) plan or an employer-sponsored IRA, but 
only state and local governments can establish a 457(b) governmental 
plan. 

Table 1: Employers Eligible to Establish DC Plans and IRAs: 

401(a): 
Private company: Yes; 
Tax-exempt organization: Yes; 
Church: Yes; 
Public education entity (school district): Yes; 
State and local governments: Yes. 

401(k): 
Private company: Yes; 
Tax-exempt organization: Yes; 
Church: Yes; 
Public education entity (school district): No; 
State and local governments: No[B]. 

403(b): 
Private company: No; 
Tax-exempt organization: Yes[A]; 
Church: Yes; 
Public education entity (school district): Yes; 
State and local governments: No, except public education entities. 

457(b) governmental: 
Private company: No; 
Tax-exempt organization: No; 
Church: No; 
Public education entity (school district): Yes; 
State and local governments: Yes. 

457(b) Tax-exempt: 
Private company: No; 
Tax-exempt organization: Yes; 
Church: No[C]; 
Public education entity (school district): No; 
State and local governments: No. 

457(f): 
Private company: No; 
Tax-exempt organization: Yes; 
Church: No; 
Public education entity (school district): Yes; 
State and local governments: Yes. 

Employer-sponsored IRA: 
Private company: Yes; 
Tax-exempt organization: Yes; 
Church: Yes; 
Public education entity (school district): Yes; 
State and local governments: Yes. 

Traditional IRA: 
Private company: N/A; 
Tax-exempt organization: N/A; 
Church: N/A; 
Public education entity (school district): N/A; 
State and local governments: N/A. 

Source: IRS, GAO analysis. 

[A] Only tax-exempt organizations that operate under I.R.C. §501(c)(3) 
are eligible to establish a 403(b) plan. 

[B] The Tax Reform Act of 1986 prohibited state and local governments 
from establishing new 401(k) plans. However, 401(k) plans established 
by state and local governments before May 6, 1986, were 
"grandfathered," and therefore permitted to maintain their plan as a 
401(k) plan and are not subject to Title I of ERISA. 

[C] Church plans that include employees may have 457(b) tax-exempt 
plans. 

[End of table] 

DC plans and IRAs are important vehicles for Americans' retirement 
savings. As shown in table 2, DC plans have about 47 million 
participants. Among DC plans, 401(k) plans have the most participants 
with approximately 37 million. Together, DC plans and IRAs held about 
$6.7 trillion in assets at the end of 2008. Participation in plans has 
increased over time; in 2005, the most recent year for which data is 
available, about 33 percent of workers participated in a DC plan and 
about 23 percent had an IRA account, while 12 percent participated in 
both. For more information on contributions and assets in DC plans and 
IRAs, as well as information on IRA account holders, see appendix IV. 

Table 2: Estimated Number of DC Plans and Participants, 2007: 

401(k); 
Number of plans (thousands): 624; 
Number of participants (thousands): 37,492. 

403(b); 
Number of plans (thousands): 88; 
Number of participants (thousands): 6,521. 

457(b) governmental and tax-exempt; 
Number of plans (thousands): 30; 
Number of participants (thousands): 3,476. 

Source: IRS. 

Note: Data on 401(a) plans and 457(f) plans are not available. The data 
in this table come from a database taken from annual Form W-2 filings. 
The data are estimated and should not be compared to the data in other 
tables. In addition, these estimates differ from estimates generated 
from annual filings compiled by Labor because the collection methods 
are different. 

[End of table] 

Contribution Limits: 

DC plans that permit participants to defer income have varying limits 
on the amount participants can defer annually. For example, in 2009, 
the contributions on which participants can defer income taxes are 
limited to $16,500 for 401(k) and 403(b) plans, as shown in table 3. 
Contributions from 401(k) plan and 403(b) plan participants and 
sponsors together may not exceed the lesser of 100 percent of 
compensation or $49,000. For 457(b) plans, deferrals cannot exceed 
$16,500 in 2009.[Footnote 9] 

Table 3: Tax-Deferred Contribution Limits for DC Plans, 2009: 

401(a): 
Individual contribution limit: N/A; 
Sponsor contribution limit: N/A; 
Sponsor and participant together contribution limit: The lesser of 100% 
of compensation or $49,000. 

401(k): 
Individual contribution limit: Up to $16,500; 
Sponsor contribution limit: N/A; 
Sponsor and participant together contribution limit: The lesser of 100% 
of compensation or $49,000. 

403(b): 
Individual contribution limit: Up to $16,500; 
Sponsor contribution limit: N/A; 
Sponsor and participant together contribution limit: The lesser of 100% 
of compensation or $49,000. 

457(b) Governmental: 
Individual contribution limit: N/A; 
Sponsor contribution limit: N/A; 
Sponsor and participant together contribution limit: The lesser 100% of 
compensation or $16,500. 

457(b) Tax-exempt: 
Individual contribution limit: N/A; 
Sponsor contribution limit: N/A; 
Sponsor and participant together contribution limit: The lesser 100% of 
compensation or of $16,500. 

457(f): 
Individual contribution limit: Unlimited; 
Sponsor contribution limit: Unlimited; 
Sponsor and participant together contribution limit: Unlimited. 

Employer-sponsored IRA; 
Individual contribution limit: SIMPLE: Up to $11,500; SEP: N/A; 
Sponsor contribution limit: SIMPLE: Either 100 percent match of 
employee contributions up to 3 percent of employee compensation; or 
contribute 2 percent of each eligible employee's compensation[A]; SEP: 
Up to 25% of employee's annual compensation, not to exceed $49,000; 
Sponsor and participant together contribution limit: SIMPLE: N/A; SEP: 
N/A. 

Traditional IRAs[B]; 
Individual contribution limit: Up to $5,000; 
Sponsor contribution limit: N/A; 
Sponsor and participant together contribution limit: N/A. 

Source: IRS. 

[A] SIMPLE sponsors must choose to meet either of the two contribution 
criteria. However, employers choosing the first option are permitted to 
reduce the match to as low as 1 percent of compensation in any 2 of 5 
years. 

[B] Yearly contribution amounts are subject to limits based on income, 
pension coverage, and filing status. 

[End of table] 

Rollover and Transfer Options: 

Most DC plans permit participants to move their assets out of their 
current plan under certain circumstances without being subject to 
income tax. Participants in most plans may "roll over" their assets 
into an IRA or into another type of plan without being subject to 
income taxes if they follow certain rules. Rollovers can occur when 
participants experience certain specified events--such as leaving their 
job or death--when their assets would otherwise be distributed. As 
shown in table 4, participants in 401(a), 401(k), 403(b), and 457(b) 
governmental plans may roll over their assets to any of these same 
types of plans or to IRAs. In contrast, participants in 457(b) tax- 
exempt and 457(f) plans may not roll over their assets into other plans 
or IRAs. 

Participants may also "transfer" their assets to other similar plans 
under certain conditions. Transferred assets are also not subject to 
income tax. For 403(b) and 457(b) governmental plans, participants may 
transfer their assets to another like plan, if the plan sponsor accepts 
such transfers, as shown in table 4. Participants in 457(b) tax-exempt 
and 457(f) plans generally have no assets.[Footnote 10] 

Table 4: Opportunities for Rollovers and Transfers of Assets among 
Plans and IRAs: 

401(a): 
Rollovers: 401(a), 403(b) annuities, 401(k), 457(b) governmental, and 
IRAs; 
Plan-to-Plan Transfers: Other 401(a) or 401(k) plans. 

401(k): 
Rollovers: 401(a), 403(b) annuities, 401(k), 457(b) governmental, and 
IRAs; 
Plan-to-Plan Transfers: Other 401(a) or 401(k) plans. 

403(b): 
Rollovers: 401(a), 403(b) annuities, 401(k), 457(b) governmental, and 
IRAs; 
Plan-to-Plan Transfers: Other 403(b) plans. 

457(b) governmental: 
Rollovers: 401(a), 403(b) annuities, 401(k), 457(b) governmental, and 
IRAs; 
Plan-to-Plan Transfers: Other 457(b) governmental plans. 

457(b) tax-exempt: 
Rollovers: No; 
Plan-to-Plan Transfers: N/A[A]. 

457(f): 
Rollovers: No; 
Plan-to-Plan Transfers: N/A. 

Traditional IRA: 
Rollovers: 401(a), 403(b) annuities, 401(k), 457(b) governmental, and 
IRAs; 
Plan-to-Plan Transfers: Other IRAs. 

Source: IRS. 

[A] Participants in 457(b) tax-exempt plans may transfer their assets 
to other 457(b) tax-exempt plans. However, these plans are generally 
unfunded; therefore, they have no assets to transfer. 

[End of table] 

Oversight of DC plans and IRAs: 

All DC plans and IRAs are subject to various provisions of the Employee 
Retirement Income Security Act of 1974 (ERISA), which was generally 
enacted to protect the interests of employee benefit plan participants 
and their beneficiaries. ERISA sets minimum standards for most pension 
plans in private industry to protect participants. 

Title I of ERISA, which is generally enforced by the Department of 
Labor (Labor), establishes guidelines that help protect participants. 
For example, Title I of ERISA requires sponsors to disclose to 
participants certain information concerning the plan. Title I also 
establishes standards of conduct for plan fiduciaries, which are 
usually plan sponsors but can also include other service 
providers.[Footnote 11] Fiduciaries must act for the exclusive benefit 
of plan participants and beneficiaries, rather than for their own or 
another party's gain. This means that fiduciaries must avoid conflicts 
of interest and act prudently. 

Some DC plans are not subject to Title I of ERISA and thus are not 
overseen by Labor. 

* Plans that are sponsored by state and local governments are not 
subject to Title I of ERISA. 

* Labor defined a "safe harbor" for 403(b) plans sponsored by tax-
exempt organizations. Sponsors that follow the safe harbor guidelines 
are not considered subject to Title I of ERISA because the plan is 
considered not to have been "established or maintained by an employer." 
Sponsors of these plans must restrict their involvement in the plan to 
certain actions, or they will become subject to Title I of ERISA. 

* Plans that are designed for highly compensated executives are 
generally excluded from certain parts of Title I of ERISA. 

* Certain religious organizations may establish different kinds of 
retirement plans, but they are generally exempt from Title I of ERISA. 
[Footnote 12] 

Regardless of whether or not plans are subject to Title I of ERISA, all 
DC plans are subject to the I.R.C. and are overseen by IRS. The I.R.C. 
contains rules to qualify plans for tax deferrals and deductions, such 
as generally requiring plans to cover rank-and-file workers, not only 
highly-compensated employees.[Footnote 13] The IRS enforces these 
provisions. 

State and local governments can also play a role in overseeing DC 
plans. State and local governments may establish ERISA-like laws for 
state and local government plans. For example, some state governments 
require that certain plan sponsors adhere to standards of conduct for 
fiduciaries. 5 outlines how different DC plans are overseen by Labor, 
IRS, and state and local governments. 

IRS and Labor share responsibility for overseeing IRAs. IRS has primary 
responsibility for tax rules governing how to establish and maintain 
any IRA. Labor has sole responsibility for overseeing ERISA's fiduciary 
standards for employer-sponsored IRAs. Unlike employer-sponsored IRAs, 
individual IRAs are not subject to Title I of ERISA and are generally 
not overseen by Labor.[Footnote 14] 

Table 5: Regulators That Oversee DC Plans by Type of Employer: 

IRS: 
Subject to Title I of ERISA: Private companies: Yes; 
Subject to Title I of ERISA: Tax-exempt organizations: Yes; 
Not subject to Title I of ERISA: State and local governments: Yes; 
Not subject to Title I of ERISA: Churches: Yes; 
Not subject to Title I of ERISA: Tax-exempt organizations under Labor's 
403(b) safe harbor: Yes. 

Labor: 
Subject to Title I of ERISA: Private companies: Yes; 
Subject to Title I of ERISA: Tax-exempt organizations: Yes[A]; 
Not subject to Title I of ERISA: State and local governments: No; 
Not subject to Title I of ERISA: Churches: No; 
Not subject to Title I of ERISA: Tax-exempt organizations under Labor's 
403(b) safe harbor: No. 

State and local governments: 
Subject to Title I of ERISA: Private companies: No; 
Subject to Title I of ERISA: Tax-exempt organizations: No; 
Not subject to Title I of ERISA: State and local governments: Yes; 
Not subject to Title I of ERISA: Churches: No[B]; 
Not subject to Title I of ERISA: Tax-exempt organizations under Labor's 
403(b) safe harbor: No[B]. 

Source: GAO analysis. 

[A] Tax-exempt sponsors of 457(b) plans and 457(f) plans designed for 
highly-compensated employees are exempt from most of ERISA's 
requirements such as participation and fiduciary responsibility. These 
plans are subject to a few provisions of Title I of ERISA relating to 
reporting, disclosure, administration, and enforcement. 

[B] Some states may have laws that affect aspects of these plans, such 
as contract remedies. 

[End of table] 

Different regulators oversee different investment options available to 
DC plans and IRAs: 

DC plans and IRAs hold assets in a range of investments, which, in 
turn, are regulated by different entities. 

* Mutual Funds. A mutual fund is a pooled investment in a portfolio of 
securities, managed by a professional investment advisor. Investors buy 
shares in the fund, which represents an indirect ownership interest in 
the fund's securities. Types of mutual funds include: stock or equity, 
bond or fixed-income, and money market. Mutual funds are sold in 
different "share classes" that each offer the same gross returns, but 
with different fee structures that result in different net returns. For 
example, in one share class, mutual fund shareholders may pay a "sales 
charge" when they purchase shares, while in another share class, they 
may pay a recurring charge deducted from fund assets to cover marketing 
costs. Mutual funds are generally regulated by the Securities and 
Exchange Commission (SEC), which requires funds to disclose fees and to 
inform investors of products' potential risks. 

* Annuities. An annuity is a contract between a plan participant or 
sponsor and an insurance company, under which the participant makes a 
lump-sum payment or a series of payments and the insurance company 
provides a payout for an agreed-upon span of time. Annuities may be 
purchased for groups or for individuals and can be fixed or variable. 
Fixed annuities guarantee a minimum interest rate on assets while the 
account is growing and also guarantee periodic payments after the 
annuity is claimed. Variable annuities are also insurance products and 
also guarantee periodic payments to participants. However, the amount 
of those payments depends in part on the value of the investments that 
underlie the account, which are typically mutual funds. States regulate 
insurance companies that provide fixed annuities. State regulators 
generally supervise insurance sales and marketing practices and policy 
terms and conditions to ensure that consumers are treated fairly when 
they purchase insurance products and file claims. For variable 
annuities, state agencies generally regulate the insurance contract 
that "wraps" around the investment options. If the underlying 
investment options are registered securities, the investments are 
regulated by SEC. Also, if variable annuities are sold to participants 
within certain retirement plans, the contracts are also regulated by 
SEC.[Footnote 15] 

* Collective investment funds (CIF). CIFs are trusts managed by a bank 
or trust company that pool investments of retirement plans or other 
large institutional investors. These products are typically not 
available to individual investors. The federal agencies charged with 
oversight of banks regulate CIFs and other bank investment products, 
primarily the Federal Reserve Board, Office of the Comptroller of the 
Currency, and the Federal Deposit Insurance Corporation. 

Fees charged to participants in DC plans and IRAs: 

As participants in DC plans and IRAs accrue earnings on their 
investments, they also pay a number of fees, including expenses, 
commissions, or other charges associated with investments and plan 
operation. Fees are one of many factors participants should consider 
when choosing among the investment options a plan offers because fees 
can significantly decrease retirement savings over the course of a 
career. Even a small fee deducted from a participant's assets annually 
could represent a large amount of money years later had it remained in 
the account to be reinvested. 

Participants and sponsors pay investment fees charged by companies that 
manage mutual funds or other investment products for all services 
related to operating the fund. For example, a management fee covers the 
cost of selecting a mutual fund's portfolio of securities and managing 
the fund. After investment fees, administrative fees generally account 
for the next largest portion of plan fees. These fees cover the cost of 
operating the plan, such as keeping records of all participants' 
contributions and transactions. 

The amount of fees charged to participants for investments may depend 
on whether the plan invests in products that are "institutional" or 
"retail." Generally, "institutional" investments are only sold to 
investors with large pools of assets and charge lower fees than retail 
products sold by the same service provider. "Retail" investments are 
available to any individual, and typically have higher fees. For 
example, individual investors typically purchase retail mutual funds, 
whereas large groups of investors, like certain DC plans, can pool 
their assets to purchase the same mutual funds with a volume discount 
depending on the size of the asset pool. 

Service providers charge fees for administering investment and 
administrative services to plans in two ways. Under a "bundled" 
arrangement, the sponsor hires one company that provides the full range 
of services directly or through subcontracts. A bundled service 
provider may, for example, provide all record-keeping and investment 
services, as well as communications with participants. Under an 
"unbundled" arrangement, the sponsor uses a combination of service 
providers. Sponsors can also provide some of the administrative 
services themselves, such as record-keeping, but can only charge fees 
for charges the sponsor incurred directly. 

Participants in Different Plans and IRAs Pay the Same Types of Fees, 
but Investment Choices Can Affect Fee Amounts: 

Participants Generally Pay the Same Types of Fees, Regardless of the DC 
Plan: 

Service providers told us that plan participants generally pay the same 
types of fees regardless of the DC plan in which they are enrolled. 
Several of the service providers we interviewed, who serve all types of 
DC plans, reported that they charge the same types of fees to 
participants of all different DC plans. For example, representatives of 
a company that services both 401(a) plans and 403(b) plans told us that 
participants in both plans pay investment management and record-keeping 
fees, as shown in table 6 and table 7.[Footnote 16] 

Table 6: Fees Associated with Three Common Investment Products: 

Fee description: All-inclusive annual fee imposed on the value of total 
assets in an account; 
Fixed annuity: N/A; 
Variable annuity: Wrap fee; 
Mutual fund: N/A. 

Fee description: Fee charged upon investing that reduces the initial 
investment; 
Fixed annuity: N/A; 
Variable annuity: Sales load; 
Mutual fund: Sales charge or sales load. 

Fee description: Fee charged upon redemption or when the product is 
sold, or when the contract is ended; 
Fixed annuity: Surrender or withdrawal charges; 
Variable annuity: Deferred sales load or surrender fee; 
Mutual fund: Deferred sales charge or deferred sales load or redemption 
fee. 

Fee description: Fee charged for any exchange or transfer of interest 
from the fund to another fund or to another investment company; 
Fixed annuity: N/A; 
Variable annuity: Exchange fee; 
Mutual fund: Exchange fee. 

Fee description: Flat dollar amount that includes any contract, 
account, or similar fee imposed on contract-owner accounts on any 
recurring basis; 
Fixed annuity: Contract fee; 
Variable annuity: Contract fee; 
Mutual fund: Account fee. 

Fee description: Fee to compensate the insurance company for various 
risks it assumes under the annuity contract; 
Fixed annuity: N/A; 
Variable annuity: Mortality and expense risk fee; 
Mutual fund: N/A. 

Fee description: A fee that is charged by an advisor, often a pension 
consultant, hired to help the plan sponsor select funds for the plan 
and to monitor investments; 
Fixed annuity: N/A; 
Variable annuity: Investment consulting fee; 
Mutual fund: Investment consulting fee. 

Fee description: A fee to cover the cost of selecting a mutual fund's 
portfolio of securities and managing the fund; 
Fixed annuity: N/A; 
Variable annuity: Management fee; 
Mutual fund: Management fee. 

Fee description: Fee for servicing of the accounts, such as providing 
statements, reports, dispersing dividends, as well as custodial 
services; 
Fixed annuity: N/A; 
Variable annuity: Administrative fee; 
Mutual fund: Administrative fee. 

Fee description: Fee related to marketing and compensating brokers to 
sell the fund; 
Fixed annuity: N/A; 
Variable annuity: Distribution (12b-1 fee); 
Mutual fund: Distribution (12b-1 fee). 

Fee description: A charge deducted from each premium paid; 
Fixed annuity: Percentage of premium charge; 
Variable annuity: N/A; 
Mutual fund: N/A. 

Source: GAO analysis. 

[End of table] 

Arrangements between DC plan sponsors and service providers may affect 
the types of fees charged. Sponsors can choose different service 
arrangements that may carry different types of fees, particularly 
bundled or unbundled services. Sponsors that choose a bundled 
arrangement may pay a smaller number of separate fees because service 
providers charge a consolidated fee for all services. For example, 
sponsors that hire a single service provider for all administrative 
services may pay a single fee for record-keeping, legal services, and 
accounting, while sponsors that have unbundled arrangements may be 
charged separate fees for each service. As shown in table 7, a range of 
administrative fees can be charged in unbundled arrangements. 

Table 7: Administrative Fees Associated with Plans: 

Fee type: Record-keeping fee; 
Fee description: A fee that is usually charged by a service provider to 
set up and maintain the plan. This fee can cover a variety of 
activities such as enrolling plan participants, processing participant 
fund selections, preparing and mailing account statements, and other 
related administration activities. 

Fee type: Communication fee; 
Fee description: A fee to cover the cost of educating participants 
about the plan such as providing participants with access to toll-free 
phone services, Internet service, and ongoing educational seminars. 

Fee type: Custodial or trustee fee; 
Fee description: A fee that is charged by an individual, bank, or trust 
company to securely maintain plan assets. 

Fee type: Audit fee; 
Fee description: A fee that is imposed by a service provider in 
connection with the annual audit that is required of ERISA-covered 
plans with more than 100 participants. 

Fee type: Legal fee; 
Fee description: A fee that is charged by an attorney or law firm to 
provide legal support for administrative activities, such as ensuring 
the plan is in compliance with ERISA (by preparing forms like the Form 
5500 or nondiscrimination testing) or representing the plan in a 
divorce settlement. 

Fee type: Transactional fees; 
Fee description: Fees charged on an individual basis such as loan 
origination, loan maintenance, and distribution fees. 

Source: GAO analysis. 

[End of table] 

Service providers also told us that traditional IRA account owners 
generally pay the same types of investment fees as DC plan 
participants. IRA account owners pay the same fees for investment 
products that any individual investor would pay, like sales loads or 
surrender charges. Investment service providers can charge IRA account 
owners a trustee fee to cover the administrative costs of managing the 
account, similar to a record-keeping fee or a custodial fee. Individual 
IRA account owners are not generally charged fees associated with plan 
compliance, like fees to cover the costs of ERISA-required annual 
reports. 

Participants in 403(b) Plans and IRAs More Often Invest in Products 
That Can Have Higher Fees Than Participants in Other DC Plans: 

403(b) plan participants and IRA account owners are more likely than 
participants in other DC plans to invest in products that can have 
higher fees than other products, such as variable annuities. Experts we 
interviewed said that variable annuities generally have higher fees 
than other products such as mutual funds because variable annuities 
charge investment fees as well as fees associated with the insurance 
portion of the product to cover the risk associated with providing 
certain guarantees, such as annuity rights or death benefits. As shown 
in table 6, variable annuity service providers typically charge fees 
for the underlying mutual funds, and they also often charge "mortality 
and expense" fees to cover the risk associated with providing 
guaranteed payments and minimum death benefits. In contrast, equities, 
and mutual funds have no such insurance guarantees; therefore, 
investing in these products can result in lower fees. 

In addition, 403(b) plan participants invest in individual investment 
products and mutual funds more often than participants in other plans, 
according to industry experts; these individual products generally have 
higher fees than group products. Employers may choose to have their 
403(b) plans invest in group or individual annuities. Individual 
annuities represent a contract between a single participant and the 
service provider. The terms, fees, and record-keeping for each contract 
are established separately for each participant. In contrast, when 
participants enter the group annuity, they enter into the prearranged 
contract established by the plan sponsor. The sponsor can negotiate 
with the annuity service provider for lower fees and choose the options 
to be made available to participants. Similarly, retail mutual funds 
are available to investors with relatively low assets and usually have 
higher fees, whereas institutional mutual funds under the same service 
provider often have lower fees because investors with large pools of 
assets can obtain pricing advantages. 

Experts told us that 403(b) plan participants may invest in individual 
annuities and mutual funds more often than participants in other plans 
for several reasons. First, according to Labor, 403(b) plans are 
different from other types of DC plans because individuals often have a 
more central role in choosing investment options. Like IRAs, many 
403(b) plans operate with a one-to-one relationship between each 
participant and service provider. For example, the sponsors of some 
403(b) plans simply send participants' contributions to the designated 
financial service provider. 

Participants in 403(b) plans also tend to invest in individual variable 
annuities because more annuity providers market directly to 403(b) plan 
participants than mutual fund providers. Experts we interviewed told us 
that annuity sales staff commonly visit school districts and market 
directly to participants, while mutual fund sales staff rarely do so. 

Furthermore, 403(b) plan participants may choose annuities more often 
than other investment options because some states have laws in place 
that facilitate the marketing of annuity products. According to 
experts, states with certain laws generally require sponsors of public 
school 403(b) plans to permit any service provider that meets certain 
criteria the opportunity to receive contributions. According to one 
expert, there are at least a handful of such states, including 
California and Texas. Sponsors of public school 403(b) plans in 
California and Texas generally cannot limit the number of options 
available to participants, but instead must permit qualified service 
providers to be included as an option to participants. According to 
experts we interviewed, annuity service providers tend to be the most 
frequently listed among the plan options. 

Like 403(b) plan participants, individual IRA account owners are more 
likely to invest in "retail" products than participants in other DC 
plans. IRA account assets are usually too low to be eligible for 
products typically reserved for high-volume clients, like collective 
investment funds, which generally have lower fees. In fact, one expert 
explained that it is common for individuals rolling over their assets 
from a DC plan into an IRA to see an increase in investment fees. This 
change occurs because individuals no longer have the group's bargaining 
power to obtain lower-cost investment products. 

In contrast to participants in 403(b) plans and IRAs, participants in 
401(a), 401(k), and 457(b) governmental plans are more likely to invest 
in institutional mutual funds or group annuity products than retail 
mutual funds or individual annuities. Sponsors of 401(a), 401(k), and 
457(b) governmental plans often pool assets and are able to purchase 
institutional products. Sponsors of 457(b) governmental plans also more 
frequently pool assets to invest in group annuity products, which can 
have lower fees than individual annuity products.[Footnote 17] 

Certain Sponsor Actions Decrease Participants' Fees, but Some Sponsors 
Take Fewer Actions than Others: 

Certain Sponsors' Actions Decrease DC Plan Participants' Fees: 

A plan sponsor can take several actions to decrease DC plan 
participants' fees. One way sponsors can help reduce participants' fees 
is by offering relatively low-cost investment products in which to 
invest. For example, sponsors can offer low-cost mutual funds in 
addition to offering other products. Sponsors can also decrease 
participants' fees by offering them the mutual fund share class that 
gives participants an opportunity to pay lower fees. Because each share 
class has the same gross return but different fee structures, sponsors 
of certain plans can evaluate the options to offer the share class most 
likely to reduce participants' fees. For example, owners of A class 
shares may pay fees when participants purchase shares, whereas owners 
of B class shares may pay fees when participants sell shares. Unlike 
owners of A and B class shares, owners of institutional class shares 
may pay very low or no fees when participants buy or sell 
shares.[Footnote 18] 

Sponsors may also decrease fees charged to participants by combining or 
pooling assets to access certain investment products, reduce fees, or 
negotiate with service providers. For example: 

* Some investment products are available only to large-size investors, 
like collective investment funds. These "institutional" products often 
have lower fees than other "retail" investments. 

* Other investment products are available to all types of investors, 
but offer lower fees for higher volume investments. For example, mutual 
funds often provide "breakpoints"--the designated dollar amounts at 
which management fees are reduced--for investors with higher volume. 

* For annuity products, sponsors with pooled assets can negotiate terms 
and fees for group variable annuities that individuals typically 
cannot. 

* Record-keeping service providers are likely to charge less per 
participant for a group of participants than for individual 
participants because pooling assets results in "economies of scale," or 
efficiencies gained through higher volume. 

Sponsors can also issue a request for proposal (RFP) to lower costs and 
decrease fees charged to participants. In response to an RFP, vendors 
submit bids describing their services and fees to the sponsor. Sponsors 
may then choose vendors who meet their participants' needs and may 
choose vendors with lower fees. For example, one expert told us that a 
statewide plan reduced total participant fees significantly because 
they issued an RFP and chose service providers with lower fees. 

Some sponsors may take actions that increase fees, such as offering 
optional features. For example, to provide participants with the option 
of taking out a loan against plan assets, sponsors may incur compliance 
and administrative costs associated with making sure loan amounts do 
not exceed limits set by IRS. These costs can be passed on to 
participants. Sponsors may also pass on higher investment costs to 
participants if an investment option has additional features. For 
example, service providers may charge an additional fee to give 
participants the option to convert a 401(k) plan account balance into a 
retirement annuity. 

Lower fees benefit plan participants because they can significantly 
increase long-term retirement savings. As shown in figure 1, even a 
relatively small annual fee taken from a worker's assets represents a 
large amount of money had it been reinvested over time. Fees are one of 
many factors--such as the historical performance and risk for each 
investment option--participants should consider in making their 
investment decisions. 

Figure 1: Effect of a 1-Percentage Point in Higher Annual Fees on a 
$20,000 DC Plan Balance Invested over 20 Years: 

[Refer to PDF for image: multiple line graph] 

Year: 1; 
Accumulated account balance with 0.5 percent charge for fees: $21,300; 
Accumulated account balance with 1.5 percent charge for fees: $21,000. 

Year: 2; 
Accumulated account balance with 0.5 percent charge for fees: $22,685; 
Accumulated account balance with 1.5 percent charge for fees: $22,261. 

Year: 3; 
Accumulated account balance with 0.5 percent charge for fees: $24,159; 
Accumulated account balance with 1.5 percent charge for fees: $23,485. 

Year: 4; 
Accumulated account balance with 0.5 percent charge for fees: $25,729; 
Accumulated account balance with 1.5 percent charge for fees: $24,776. 

Year: 5; 
Accumulated account balance with 0.5 percent charge for fees: $27,402; 
Accumulated account balance with 1.5 percent charge for fees: $26,139. 

Year: 6; 
Accumulated account balance with 0.5 percent charge for fees: $29,183; 
Accumulated account balance with 1.5 percent charge for fees: $27,577. 

Year: 7; 
Accumulated account balance with 0.5 percent charge for fees: $31,080; 
Accumulated account balance with 1.5 percent charge for fees: $29,094. 

Year: 8; 
Accumulated account balance with 0.5 percent charge for fees: $33,100; 
Accumulated account balance with 1.5 percent charge for fees: $30,694. 

Year: 9; 
Accumulated account balance with 0.5 percent charge for fees: $35,251; 
Accumulated account balance with 1.5 percent charge for fees: $32,382. 

Year: 10; 
Accumulated account balance with 0.5 percent charge for fees: $37,543; 
Accumulated account balance with 1.5 percent charge for fees: $34,163. 

Year: 11; 
Accumulated account balance with 0.5 percent charge for fees: $39,983; 
Accumulated account balance with 1.5 percent charge for fees: $36,042. 

Year: 12; 
Accumulated account balance with 0.5 percent charge for fees: $42,582; 
Accumulated account balance with 1.5 percent charge for fees: $38,024. 

Year: 13; 
Accumulated account balance with 0.5 percent charge for fees: $45,350; 
Accumulated account balance with 1.5 percent charge for fees: $40,115. 

Year: 14; 
Accumulated account balance with 0.5 percent charge for fees: $48,297; 
Accumulated account balance with 1.5 percent charge for fees: $42,322. 

Year: 15; 
Accumulated account balance with 0.5 percent charge for fees: $51,437; 
Accumulated account balance with 1.5 percent charge for fees: $44,650. 

Year: 16; 
Accumulated account balance with 0.5 percent charge for fees: $54,780; 
Accumulated account balance with 1.5 percent charge for fees: $47,105. 

Year: 17; 
Accumulated account balance with 0.5 percent charge for fees: $58,341; 
Accumulated account balance with 1.5 percent charge for fees: $49,696. 

Year: 18; 
Accumulated account balance with 0.5 percent charge for fees: $62,133; 
Accumulated account balance with 1.5 percent charge for fees: $52,429. 

Year: 19; 
Accumulated account balance with 0.5 percent charge for fees: $66,172; 
Accumulated account balance with 1.5 percent charge for fees: $55,313. 

Year: 20; 
Accumulated account balance with 0.5 percent charge for fees: $70,473; 
Accumulated account balance with 1.5 percent charge for fees: $58,355. 

Source: GAO analysis. 

[End of figure] 

Some Plan Sponsors Take Fewer Actions to Decrease Fees Than Sponsors of 
Other DC Plans: 

DC plan experts told us that compared to 401(a), 401(k), and 457(b) 
governmental plans, sponsors of 403(b) plans generally take fewer 
actions to decrease fees for participants. The 403(b) plan sponsors 
often establish a direct one-on-one relationship between the service 
provider and the participant, which means sponsors' main responsibility 
is to send contributions from employees' paychecks to investment 
service providers. This one-on-one relationship between participant and 
service provider keeps sponsors' involvement to a minimum, limiting the 
ability to reduce fees. 

Sponsors of some 403(b) plans often take fewer actions to decrease 
participants' fees for at least two reasons, according to experts we 
interviewed. First, many sponsors of 403(b) plans are public schools 
and tax-exempt organizations, and experts told us they may not have the 
resources to hire plan administrators who are retirement plan 
specialists. Instead, the staff who administer these plans are often 
responsible for payroll or other administration and may lack guidance 
on ways sponsors can reduce participants' fees. Second, for many state 
and local governments, 403(b) plans are a secondary retirement benefit 
to a DB plan. Experts told us that sponsors may not feel as motivated 
to play an active role in these plans since the 403(b) plan is 
supplemental. 

For some governmental 403(b) plans, sponsors' ability to decrease fees 
for participants is limited by certain state laws. As we noted earlier, 
one expert told us that a handful of states, including California and 
Texas, have laws that limit state and local government 403(b) plan 
sponsors' ability to narrow the list of service providers offered to 
participants. Instead, sponsors must generally give any qualified 
service provider a "payroll slot," or an opportunity for participants 
to choose that service provider to receive contributions withdrawn from 
their paycheck. These requirements limit sponsors' ability to pool 
assets, negotiate with service providers, or conduct RFPs. 

In contrast to 403(b) plans, other plans are often structured to 
require more sponsor actions. First, with some exceptions, sponsors of 
401(a), 401(k), and 457(b) governmental plans are generally required by 
law to set participants' assets aside in a trust or other type of 
entity established to hold participants assets. As a result, sponsors 
are generally responsible for seeing to it that participants' funds are 
accounted for, and the trust provides a pool of assets that facilitates 
negotiating with service providers. Second, plans subject to Title I of 
ERISA (including some 403(b) plans) are required to name fiduciaries 
for their plans, and this role is often filled by plan sponsors or 
service providers. The law requires fiduciaries to act in the sole 
interest of participants and beneficiaries. In addition, Labor has 
interpreted the law as requiring fiduciaries to assess the 
reasonableness of fees charged to participants. Sponsors of plans not 
subject to Title I of ERISA--like plans sponsored by state and local 
governments--are not required to do so, unless state laws impose such 
duties. 

IRS's New 403(b) Regulations May Encourage Sponsor Action, but Its 
Effect on Fees Is Unclear: 

Some 403(b) plan sponsors may take more action as a result of the IRS's 
403(b) regulations that generally became applicable in January 2009, 
but the effect of this regulation on fees is unclear. Before these 
regulations, many sponsors established a one-on-one relationship 
between participants and service providers. IRS held participants 
responsible for qualification requirements such as certifying that they 
had not exceeded loan limitations. According to IRS officials, sponsors 
often did not track all participants' assets. Instead, experts told us 
that sponsors' main responsibility was sending contributions from 
participants' paychecks to investment service providers. However, under 
the new regulations, when participants want to exchange one 403(b) 
contract for another 403(b) contract under the same plan, sponsors must 
agree to share information about the participants with the service 
provider of the new 403(b) contract.[Footnote 19] Plan sponsors have 
other duties under the new regulations as well, such as maintaining a 
plan document that outlines all the material provisions of the plan. 

Given these changes, 403(b) plan experts disagree about the new 
regulations' effect on fees charged to participants. Some experts 
believe fees will increase because of additional compliance costs to 
cover the expense of services like creating a plan document. To create 
a plan document, sponsors may need more administrative and legal 
assistance, the costs of which could be passed on to participants. 
Other experts said the new requirements will lead to lower fees for 
participants because they give sponsors an incentive to narrow the 
range of investment options. One expert noted that the administrative 
burdens of keeping track of all of participants' funds has induced 
sponsors to reduce the number of investment service providers available 
to participants to limit record-keeping activities.[Footnote 20] To 
limit the number of service providers, sponsors are likely to conduct 
RFPs and to consider costs in their decisions. Also, limiting service 
providers may reduce the number of times participants transfer their 
funds, reducing sales loads, surrender charges, or other fees 
associated with buying and selling investment options. 

Participants Receive Different Fee Information Depending on ERISA 
Coverage and Regulator, Limiting Participants' Ability to Compare 
Investment Options: 

Participants Receive Different Fee Information Depending on ERISA 
Coverage: 

Participants in DC plans subject to Title I of ERISA receive different 
fee disclosure documents than participants in non-Title I plans. ERISA 
requires sponsors, including employers who sponsor SEP or SIMPLE IRAs, 
to disclose certain documents to participants that may contain fee 
information. Sponsors must provide all participants with a summary plan 
description, account statements, and the summary annual report. As we 
previously reported, these documents may, but are not required to, 
disclose information on fees borne by individual participants, as shown 
in table 8.[Footnote 21] 

Table 8: Required Disclosure Documents to All Participants in Plans 
Subject to Title I of ERISA: 

Disclosure document: Summary plan description; 
Document purpose: To explain to participants how the plan operates; 
Information on fees: May contain information on how various fees such 
as investment, record-keeping, and loan fees are charged to 
participants, but not required by ERISA to do so. 

Disclosure document: Account statement; 
Document purpose: To show the account balance due to a participant; 
Information on fees: Typically identifies fees, such as for loans, 
which are directly attributable to an account during a specific period. 
Also, may show investment and record-keeping fees, but not required by 
ERISA to do so. 

Disclosure document: Summary annual report; 
Document purpose: To disclose the financial condition of the plan to 
participants; 
Information on fees: Contains total plan costs incurred by plan 
participants during the year. 

Source: GAO analysis. 

[End of table] 

As we found in our report on 401(k) plan fees, the fee information that 
ERISA requires sponsors to disclose is limited and does not provide 
participants with an easy comparison of fees for different investment 
options.[Footnote 22] Disclosure documents may contain information on 
the total fees charged to participants, but may not clearly list all 
types of fees in a manner that facilitates comparison of investment 
options. As a result, participants may pay more than they would if they 
had clearer information. 

For those plans not subject to Title I of ERISA, sponsors are not 
federally required to disclose fee information at all, although state 
laws may require them to do so. Experts told us that some, but not all, 
states established ERISA-like laws that include fee disclosure 
requirements. For example, Florida does not require all local 
government sponsors to disclose fee information to participants. Also, 
a retirement official in Minnesota told us that state law requires the 
sponsor of a state 457(b) governmental plan to make participants aware 
of fees that they pay, but statutes do not require similar fee 
disclosure for school districts' 403(b) plans. Similarly, Florida 
requires fee disclosure for state and local government 401(a) plans but 
not for 403(b) plans. As a result, participants in different state and 
local government plans within Florida may receive different information 
about the fees they pay. 

Experts and sponsors also told us that sponsors of plans not subject to 
Title I of ERISA sometimes provide participants with information on 
fees, even though they are not required to do so. For example, sponsors 
may distribute prospectuses or fund profiles when employees become 
eligible for the plan even though they are not required by ERISA or 
state law to do so. DC plan experts told us that state and local 
government sponsors do this because they are accustomed to 
transparency, and because they feel responsible for helping their 
participants understand fees. 

Participants also Receive Different Fee Information Depending on the 
Regulator: 

Participants receive different fee information based on the regulator 
of the product in which they invest. SEC regulates fee disclosure for 
some retirement plan investment options, such as mutual funds, and 
variable annuity products, and requires investment service providers to 
disclose fees in a prospectus, a document that details investment 
strategy and fees.[Footnote 23] SEC requires require that a prospectus 
be provided to the purchaser of a security, such as a mutual fund. When 
the sponsor of a DC plan purchases shares of a mutual fund for 
participant accounts, the sponsor receives the prospectus. SEC 
regulations do not govern plan sponsors and, therefore, do not require 
sponsors to provide a prospectus to retirement plan participants. 

We found that some service providers that are regulated by SEC give the 
prospectus to both the sponsor and the participant when the purchaser 
is the sponsor. Service providers also said they disclose fees in 
various other documents because they feel it is the right thing to do. 
For example, several service providers told us that their company makes 
fee information available to participants on their Web site and on fact 
sheets because they felt that transparency was constructive. 

State insurance agencies also regulate fee disclosure for insurance 
products and may require disclosures that list the fees that 
participants pay. The National Association of Insurance Commissioners 
(NAIC) developed model disclosure regulations, which each state can 
choose to adopt. The regulations require that fixed annuity providers 
list the specific dollar amounts or percentage charges with 
explanations, as well as total amounts charged. According to NAIC, 27 
states have adopted the NAIC Annuity Disclosure Model Regulation or 
have related state activity.[Footnote 24] For example, one state 
specifically requires insurers to give prospective purchasers a buyer's 
guide to annuities and a contract summary as provided in the NAIC model 
regulation.[Footnote 25] 

However, other states have different fee disclosure requirements; 
therefore participants in different states may receive different 
information on fees. For example, while service providers must be 
licensed by each state where it sells insurance products, at least one 
state does not require specific fee disclosures to some participants. 
[Footnote 26] 

California and Texas have more stringent disclosure requirements than 
the federal government. These states require specific disclosure of all 
fees for service providers licensed to sell products to participants in 
public 403(b) plans. California and Texas established online registries 
with fees disclosed in a consistent format to facilitate comparison of 
403(b) service providers' fees. Licensed service providers must submit 
fees and other information to the registry to sell investment products 
to participants in the states' school systems. Both states organize the 
information from service providers to provide fee information in a 
standardized format. 

Service providers listed in California's registry must disclose all 
direct and indirect fees charged to participants such as surrender 
fees, management fees, and annual fees. For example, in California, 
participants may compare fees of up to three similar investment 
products at one time. California's Web site, [hyperlink, 
www.403bcompare.com], allows any user to view and compare fees of 
selected products from multiple vendors side by side. Similarly, 
licensed service providers in Texas must disclose all fees they charge 
in the online registry, including both investment and administrative 
fees. These registries help sponsors and participants of 403(b) plans 
compare service providers' fees and other characteristics, which may 
facilitate choosing products with lower fees. 

As shown in table 9, different regulators require different information 
to be disclosed. As a result, DC plan participants and IRA account 
owners may receive different information because of the entity that 
regulates the plan or the investment product.[Footnote 27] 

Table 9: Required Fee Disclosure Information, by Regulator: 

Regulator: ERISA; 
Required fee disclosure information: ERISA requires sponsors to provide 
participants with summary plan description, account statement, summary 
annual report, which may include information about fees such as 
investment fees, record-keeping fees, and total plan costs. 

Regulator: State and local governments; 
Required fee disclosure information: For sponsors of public DC plans, 
state and local government requirements vary. For example, one state 
requires certain sponsors to provide a quarterly statement that lists 
out all fees, while another state requires no fee disclosures for 
certain plans. 

Regulator: SEC; 
Required fee disclosure information: The prospectus contains a fee 
table with general fee information associated with the product, such as 
the expense ratio, which explains total fees reported as a percentage 
of the fund's assets. The prospectus does not contain certain fees 
charged by the plan such as transactional fees. 

Regulator: State insurance regulators; 
Required fee disclosure information: States' insurance department 
requirements vary. According to NAIC, some states have adopted NAIC's 
model disclosure regulations, which requires specific dollar amounts or 
percentage charges and fees listed with an explanation of how they 
apply. States who have not adopted NAIC's model regulations may have 
different disclosure requirements. 

Source: GAO analysis. 

[End of table] 

Moreover, because of the different disclosure requirements, 
participants in DC plans and IRAs can invest in similar products but 
receive different information on fees. This may be confusing to 
participants who want to compare fees of different investment products 
to make an investment choice. For example, as shown in figure 2, under 
ERISA, participants must receive a summary plan description, an account 
statement, and a summary annual report, regardless of the product in 
which they are invested. But a participant who is invested in the same 
type of product in a plan not subject to Title I of ERISA may not 
receive any information from either the service provider or the 
sponsor. On the other hand, the participant may receive information 
from both the service provider and the sponsor, but the fee information 
may be in different formats, making it difficult for the participant to 
compare investment products. 

Figure 2: Oversight of Fee Information Disclosed to Retirement Plan 
Participants: 

[Refer to PDF for image: illustration] 

SEC: 
Service provider: Mutual fund or variable annuity for an individual: 
Prospectus provided to IRA participant; 
DC plan or employer-sponsored IRA sponsor: ERISA sponsor; 
Provides the following to the IRA participant: 
Summary plan description; 
Account statement; 
Summary annual report. 

SEC: 
Service provider: Mutual fund or variable annuity for a group: 
Prospectus provided to IRA participant; 
DC plan or employer-sponsored IRA sponsor: Non-ERISA sponsor: 
Unclear what participants receive. 

States: 
Service provider: Fixed annuity; 
Information required by states varies; 
DC plan or employer-sponsored IRA sponsor: ERISA sponsor; 
Provides the following to the IRA participant: 
Summary plan description; 
Account statement; 
Summary annual report. 

States: 
Service provider: Fixed annuity; 
Information required by states varies; 
DC plan or employer-sponsored IRA sponsor: Non-ERISA sponsor: 
Unclear what participants receive. 

Sources: GAO; images, Art Explosion. 

[End of figure] 

Oversight of Fees and DC Plans Will Likely Improve with Recent 
Regulations, but IRS and Labor Still Lack Information That Could 
Strengthen Oversight: 

Labor and IRS Oversee Fee Disclosure and DC Plans, and Recent 
Regulations on Fee Disclosure and 403(b) Plans Are Likely to Improve 
Oversight: 

Labor is charged with overseeing the statutorily required disclosures--
which may include fee information--to participants of certain DC plans, 
while IRS oversees tax laws that apply to all DC plans. Both have 
recently issued or proposed regulations that are likely to improve 
oversight. Under ERISA, Labor is responsible for enforcing the 
requirements that plan fiduciaries ensure that fees paid with plan 
assets are reasonable and for necessary services. Labor does this in a 
number of ways, including collecting information on fees from plan 
sponsors, investigating participants' complaints or referrals from 
other agencies on questionable plan practices, and conducting outreach 
to educate plan sponsors about their responsibilities. In addition, 
Labor makes available a checklist with its annual filing instructions 
to help plan sponsors follow ERISA requirements, such as providing 
participants with certain documents like the summary plan description. 
While the checklist is not submitted to Labor, agency officials stated 
that it selects plans for investigation because of some indication that 
an ERISA violation may have occurred or may be about to occur, a 
process Labor calls "targeting." For example, we reported that Labor 
targeted 3,400 cases for review in 2005 as a result of various source 
leads, such as participant complaints, computer targeting, and other 
agency referrals.[Footnote 28] 

Labor proposed regulations in July 2008 to improve oversight of DC 
plans subject to Title I of ERISA. These regulations are designed to 
improve fee disclosure to participants by requiring sponsors to provide 
participants with the actual amounts individuals were charged for 
administrative services, on a quarterly basis.[Footnote 29] Sponsors 
would be required to disclose investment fees at least annually to 
participants in a chart or similar format to facilitate comparison of 
fees among investment options. These regulations apply only to plans 
subject to Title I of ERISA disclosure provisions, such as many 401(a), 
401(k), some 403(b) plans, and some employer-sponsored IRAs. We have 
previously suggested that Congress amend ERISA to require all sponsors 
to disclose fees in a way that facilitates comparison among investment 
options.[Footnote 30] 

While IRS generally does not have responsibility for enforcing laws 
regarding fees and fee disclosure for DC plans, IRS oversees DC plans' 
compliance with the tax code. All DC plans allow a tax deduction or 
deferral for plan sponsors or participants. IRS makes sure that 
contributions are eligible for a tax deferral or deduction by analyzing 
features of retirement plans. IRS issued final regulations in 2007 that 
made significant changes to improve IRS oversight of all 403(b) plans. 
The regulations require sponsors to maintain a plan document that 
outlines the provisions of the plan, and manage the plan in accordance 
with the document. While previously sponsors had to provide certain 
information in writing, they were not generally required to maintain a 
formal plan document. 

Labor Lacks Specific Authority to Collect Information to Help Ensure 
That Safe Harbor 403(b) Plans Protect Participants' Interests: 

Labor lacks the specific authority to require sponsors of safe harbor 
403(b) plans to submit information that would help ensure that 
participants' interests are protected. Labor oversees many DC plans 
sponsored by tax-exempt organizations that are subject to Title I of 
ERISA. However, Labor has defined a safe harbor for certain 403(b) 
plans that may operate outside of Title I. Under Labor's safe harbor 
regulations, 403(b) plans are defined as not having been "established 
or maintained by an employer" under ERISA if certain conditions are 
met. For example, in order to remain under the safe harbor, sponsors 
must generally limit their involvement in the plan.[Footnote 31] Plan 
sponsors make the decision to operate their 403(b) plans under the safe 
harbor, independent of Labor. 

We found that Labor cannot identify safe harbor plans and therefore has 
no assurance that it is able to systematically enforce laws for 403(b) 
plans that may be operating outside of the safe harbor. Under ERISA, DC 
plans are required to file an annual report with Labor.[Footnote 32] 
However, Labor currently does not have the authority to require that 
safe harbor plans provide similar information. Labor does have the 
authority to investigate any 403(b) plan of a tax-exempt employer to 
determine if the plan is covered by Title I of ERISA and may have 
reason to target safe harbor 403(b) plans for enforcement actions 
because sponsors may engage in activities that take them out from under 
the safe harbor and make them subject to Title I. For example, sponsors 
that act as fiduciaries are required to follow requirements that 
protect participants' interests, such as seeking reasonable fees for 
plan participants and avoiding conflicts of interest. However, Labor 
has no way to systematically assess whether or not sponsors of 403(b) 
safe harbor plans are acting as plan fiduciaries. As a result, Labor 
cannot ensure that participants' interests are protected. Because Labor 
is unable to identify safe harbor plans, it has no assurance that it is 
able to include all 403(b) plans subject to Title I of ERISA in its 
enforcement efforts. 

Lack of Information Sharing between IRS and Financial Regulators Limits 
Oversight of Service Providers: 

IRS and financial regulators have not always shared information with 
one another to use resources effectively and help enforce a rule 
requiring reasonable fees. In our discussions with IRS officials, they 
said that IRS agents who find evidence of legal violations are not 
obligated to share information with financial regulators.[Footnote 33] 
However, providing such information would help in overseeing service 
providers of DC plans. Various service providers such as investment 
companies and record-keepers work with DC plans and participants and 
IRS agents are in a position to potentially find that some service 
providers have violated financial regulations. 

Currently, IRS is under no obligation to report service providers' 
conduct to the proper financial regulators. No formal agreement is in 
place--such as a memorandum of understanding (MOU)--to guide 
coordination efforts, a practice we have identified as effective in 
prior work.[Footnote 34] Financial regulators, such as the Federal 
Reserve Board and SEC, have established an MOU to facilitate their 
oversight of financial services firms. Without MOUs, IRS agents have no 
obligation to report violations, and without such reporting the 
potential for service providers withholding information from plan 
participants increases. An MOU--and corresponding changes to agents' 
guidance--could provide a means for agents to report violations, and 
such reporting could reduce the likelihood of service providers 
withholding information from plan participants. Such reporting could 
also provide an additional means by which to enforce a rule requiring 
reasonable fees. 

IRS Does Not Collect Enough Information to Easily Enforce 457(b) Plans' 
Contribution Limits: 

IRS's does not collect enough information to easily enforce certain 
limits on participants' contributions to 457(b) plans, which could lead 
to excessive income tax deferrals. Some, but not all, DC plans have 
"catch-up" provisions that allow older participants to defer additional 
income. Older participants may wish to set aside more money than 
younger participants as they near retirement. In 2009, participants age 
50 and over in 401(k), 403(b), and 457(b) governmental plans are 
permitted to contribute an additional $5,500 over the normal 
contribution limit of $16,500. Participants age 50 and over in 457(b) 
tax-exempt plans are not permitted to make additional catch-up 
contributions.[Footnote 35] 

Although there are two distinct types of 457(b) plans--governmental 
plans and tax-exempt plans--IRS cannot easily differentiate between 
participants in these plans to evaluate whether or not they are 
appropriately complying with catch-up contribution limits. IRS 
identifies plan participants in various retirement plans from 
information provided on the W-2 form that reports income tax deferrals. 
To identify a participant's contributions to a specific plan: 

* Employers submit a Form W-2 for each participant in the plan, 
reporting annual contributions to the retirement plan, among other 
things. 

* Form W-2 asks employers to identify the type of plan in which the 
participant is enrolled by listing the code representing the plan in 
box 12, along with the amount deferred, as shown in 3. 

Figure 3: IRS Form W-2, Wage and Tax Statement, with Emphasis on Box 
12, for Retirement Plan Contributions: 

[Refer to PDF for image: illustration] 

Box 12 indicates "See instructions for Box 12." 

Source: IRS. 

[End of figure] 

The instructions for the W-2 form list a single letter code ("G"), to 
represent deferrals to a 457(b) plan, as shown in figure 4. 

Figure 4: Form W-2 Instructions: 

[Refer to PDF for image: illustration] 

G: Elective deferrals and employer contributions (including nonelective 
deferrals) to a section 457(b) deferred compensation plan. 

Source: IRS. 

[End of figure] 

We found that the W-2 code identifying 457(b) plans has not been 
changed for several years, and therefore the IRS does not have enough 
information to easily determine whether catch-up contributions are made 
appropriately. In 2002, section 457 was amended, allowing 457(b) 
governmental plan participants age 50 and over the opportunity to 
contribute $5,500 in catch-up contributions. These contributions are 
not permitted for participants of 457(b) tax-exempt plans. However, the 
code on the W-2 form for these two plans remained the same. 

Instead of relying on the W-2 form to systematically differentiate 
between participants in the two types of 457(b) plans, IRS agents rely 
on experience gained on the job to make distinctions. IRS agents 
seeking to enforce the different 457(b) catch-up contributions rules 
have to make a judgment to decide if the catch-up contributions are 
permitted. IRS officials explained that efforts to link the participant 
information to the type of sponsor is burdensome. IRS agents have to 
confirm the type of organization that sponsored the plan and then 
determine if the participant could make the extra contribution. For 
example, one IRS agent told us that the agent could contact the plan 
sponsor and ask for documentation of its tax-exempt or government 
status.[Footnote 36] 

As a result of IRS's inability to easily differentiate between 457(b) 
plan participants, the federal government may be losing tax revenue. 
For example, a 457(b) tax-exempt plan participant could erroneously 
make a catch-up contribution. Normally, the participant's contributions 
over the normal limit ($16,500) would be subject to income tax, for 
which the highest income tax bracket was 35 percent in 2008. However, 
if a participant made the maximum catch-up contribution of $5,500 and 
did not pay income taxes, he or she would avoid paying 35 percent of 
$5,500. The federal government would lose $1,925 in tax revenue for 
that year. 

Conclusions: 

American workers participating in DC plans may not receive clear 
information on the fees that they pay, even though relatively small 
fees imposed annually can significantly affect retirement savings over 
the course of a career. In our previous work, we suggested that 
Congress consider amending the law to require fees to be disclosed to 
participants in 401(k) plans in a way that facilitates comparison of 
investment options, and our current work suggests that participants in 
all types of plans could benefit from enhanced disclosure. Labor has 
proposed regulations that address this concern, but we continue to 
believe that a change in the law is necessary to ensure that improved 
fee disclosure will be broadly available to all participants. 

Although ERISA requires sponsors to disclose some fee information to 
participants, disclosure requirements for plans not subject to Title I 
of ERISA are less consistent. Depending on the service provider, the 
sponsor, and the state, participants in these plans may receive fee 
information from different entities, in different formats, or may 
receive no fee information at all. Some states have taken approaches to 
fee disclosures that are already helping participants to compare fees 
across investments. These approaches may provide a model not only for 
federal oversight, but also for other states as both works to enhance 
disclosure of DC plan fees. 

While sponsors of some plans often take actions such as pooling assets 
to obtain pricing advantages, sponsors of 403(b) plans often do not. As 
a result, participants in 403(b) plans can end up paying higher fees 
than participants in other DC plans. If guidance were provided to all 
sponsors of DC plans about what role they can have in reducing fees, 
sponsors would be more likely to understand the actions they can take 
to help participants ensure they have adequate retirement savings. 
Given its responsibility to oversee plan fiduciaries, Labor has the 
expertise to develop such guidance, but it does not have authority over 
plans not subject to Title I of ERISA. IRS is in a better position to 
reach out to all sponsors. Collaboration between IRS and Labor can 
ensure that DC plans subject to Title I of ERISA and other plans are 
reached. 

Both Labor and IRS have particular responsibilities for overseeing DC 
plans, and in Labor's case, making sure that plan sponsors ensure the 
reasonableness of fees charged is an especially important 
responsibility. However, steps must be taken to improve each agency's 
oversight of DC plans to ensure that not only are DC plan participants' 
retirement savings adequately safeguarded, but also that there is no 
absence of oversight for entities involved in the DC plan market. 
Therefore, while Labor is responsible for administering the statutory 
provisions that safeguard the interests of participants, these 
interests may be vulnerable if Labor does not have the specific 
authority to require that all 403(b) plan sponsors that fall outside of 
safe harbor rules systematically identify themselves. Without such 
authority, Labor cannot easily identify sponsors who may be covered by 
Title I of ERISA, which is designed in part to protect workers' 
retirement savings. In addition, IRS has a role to play in ensuring 
that the government receives the appropriate tax revenue. However, if 
IRS cannot easily determine whether participants in certain plans are 
improperly deferring income, then the federal government could be 
missing tax revenue if participants exceed deferral limits. Finally, 
encouraging regulators to share information on service providers' 
violations they have found in the normal course of reviewing plans with 
other regulators is likely to help ensure that all DC plan 
participants' retirement savings are protected. With a formal 
mechanism, such as an MOU, to share information with other regulators 
when potential violations are found, regulators are less likely to miss 
opportunities to enforce financial regulations designed to protect 
investors. Such an MOU would be appropriate for limited occasions when 
information on service providers can be shared without revealing 
protected taxpayer information. 

Matters for Congressional Consideration: 

Congress should consider amending ERISA to require sponsors to disclose 
fee information on each investment option in the plan to participants 
in a consistent way that facilitates comparisons among the options not 
only for 401(k) plans, as we have previously suggested, but for all DC 
plans subject to Title I of ERISA. In addition, to help ensure 
participants in all DC plans receive consistent fee disclosure, 
Congress may wish to consider state approaches for fee disclosure to 
participants in non-Title I plans as models for federal requirements 
for ERISA plans. 

Given the absence of direct oversight of safe harbor 403(b) plans, 
Congress may wish to consider giving Labor the specific authority to 
collect information to systematically monitor safe harbor plans, which 
will allow Labor to determine whether any safe harbor 403(b) plans are 
operating outside the safe harbor guidelines and are subject to Title I 
of ERISA. 

Recommendations: 

To encourage plan sponsors to take actions that result in participants 
paying lower fees, we recommend that the Commissioner of Internal 
Revenue, together with the Secretary of Labor, provide guidance 
designed for sponsors of all types of DC plans to suggest ways sponsors 
can cost-effectively decrease participants' fees. 

To be able to provide improved oversight and ensure participants are 
not violating tax deferral limits, the Commissioner of the Internal 
Revenue Service should collect information to allow them to easily 
differentiate between types of 457 plans. 

To help ensure that information about service providers' violations is 
shared with financial regulators, we recommend that the Commissioner of 
the Internal Revenue Service work with financial regulators to 
establish a formal memorandum of understanding. Such a memorandum would 
help instruct agents and would be appropriate for limited occasions 
when information on service providers can be shared without revealing 
protected taxpayer information. In addition, the agencies should 
periodically review and update the memorandum, as appropriate. 

Agency Comments and Our Evaluation: 

We provided a draft of this report to the Secretary of Labor, the 
Secretary of the Treasury, and the Chairman of the Securities and 
Exchange Commission. We obtained written comments from the Assistant 
Secretary of Labor and from the Deputy Commissioner of the Internal 
Revenue Service, which are reproduced in appendixes II and III. 
Treasury, IRS, SEC, and Labor also provided technical comments, which 
were incorporated in the report where appropriate. 

Labor agreed with our recommendations. They noted that excessive fees 
can undermine long-term retirement savings for plan participants and 
described how two proposed regulations would give plan fiduciaries more 
responsibility for understanding plan fees and improve fee disclosure 
for participants. We agree that Labor's proposed regulations will 
assist plans sponsors in understanding their responsibilities for plan 
fees, but note that neither regulation has been made final. Labor also 
noted that it has produced guidance for plan sponsors on a variety of 
issues to help them understand their responsibilities under ERISA. 
However, this guidance is often focused on 401(k) plans, whereas all 
plans are likely to benefit from it. 

IRS agreed with our recommendations to work with Labor to provide 
guidance to sponsors of all types of plans to help reduce participants' 
fees, as well as to collect enough information to distinguish between 
different types of 457 plans. With regard to establishing an MOU to 
facilitate information-sharing with financial regulators, IRS said that 
it will cooperate in situations we described. However, IRS also said 
that its method of doing so is sufficient. IRS described sharing 
information with another federal regulator without the use of an MOU, 
while complying with rules that protect the confidentiality of taxpayer 
and tax return information. As noted, IRS has been diligent in 
observing regulations protecting taxpayer information, and we agree 
that carefully structured cooperation is important. However, we 
continue to believe that an MOU is the best means for formally 
articulating such cooperation especially given the variety of entities 
involved in DC plan administration that cross regulatory boundaries. 
Just as IRS has established MOUs with other federal agencies such as 
Labor to share information, we believe that an MOU would be useful to 
guide coordination efforts with financial regulators to ensure that IRS 
agents know what is expected of them. 

Unless you publicly announce its contents earlier, we plan no further 
distribution until 30 days after the date of this report. At that time, 
we will send copies of this report to the Secretary of the Treasury, 
Commissioner of Internal Revenue, the Secretary of Labor, the Chairman 
of the Securities and Exchange Commission; appropriate congressional 
committees; and other interested parties. In addition, the report will 
be available at no charge on GAO's Web site at [hyperlink, 
http://www.gao.gov]. 

If you have any questions concerning this report, please contact me at 
(202) 512-7215 or bovbjergb@gao.gov. Contact points for our Offices of 
Congressional Relations and Public Affairs may be found on the last 
page of this report. GAO staff who made significant contributions to 
this report are listed in appendix V. 

Sincerely yours, 

Signed by: 

Barbara D. Bovbjerg: 
Director, Education, Workforce, and Income Security Issues: 

[End of section] 

Appendix I: Objectives, Scope, and Methodology: 

The objectives of this report were to examine: (1) how the types of 
fees charged to participants and investments of various defined 
contribution (DC) plans differ; (2) how DC plan sponsor actions affect 
participant fees; (3) how fee disclosure requirements vary; and (4) how 
effective is the oversight of DC plans. 

To identify total assets for DC plans and IRAs, we reviewed a report 
that analyzed data from federal and private sources. We reviewed "The 
U.S. Retirement Market, 2008," Research Fundamentals, vol. 18, no. 5 
(Washington, D.C.: Investment Company Institute, June 2009). Total IRA 
market assets are derived from tabulations of total IRA assets provided 
by the IRS Statistics of Income (SOI) Division for tax years 1989, 
1993, 1996-2002, and 2004. These tabulations are based on a sample of 
IRS returns. Total assets for 401(k) plans, 403(b) plans, and 457 plans 
are based on data from the Federal Reserve Board, the National 
Association of Government Defined Contribution Administrators, and 
American Council of Life Insurers. The Investment Company Institute 
(ICI) is a national association of U.S. investment companies, including 
mutual funds, closed-end funds, exchange-trade funds, and unit 
investment trusts. Its research department collects and disseminates 
industry statistics, and conducts research studies relating to issues 
of public policy, economic and market developments, and shareholder 
demographics. 

We obtained different sets of data from the Internal Revenue Service 
(IRS) on the general characteristics of DC plans, such as number of 
plans. 

* First, we obtained one set of data from IRS's Tax Exempt and 
Government Entities Division (TEGE). The 401(k), 403(b), and 457(b) 
plan and participant information was taken from a database that 
compiles information from all W-2 documents submitted to IRS. The data 
have some limitations. For 2007, this database collected W-2 forms from 
92 percent all taxpayers who filed a W-2 that year. The other 8 percent 
represent taxpayers who file their forms late or amend returns. IRS 
also explained that some plans in which no individual made a 
contribution in a single year may not be represented in the count, but 
it is likely that few such plans exist. In addition, no data was 
available for 401(a) plans, or 457(f) plans. Because we used the data 
to illustrate the relative assets and contributions of DC plans, we 
found it reliable for our purposes. 

* We reviewed the IRS's Compliance Data Warehouse (CDW) Information 
Returns Master File (IRMF) for tax year 2006. CDW is a widely used 
database consisting of sensitive but unclassified taxpayer data from 
various data sources. The IRMF we received was extracted on May 15, 
2009. We assessed these data and determined that they were sufficiently 
reliable for the purposes of this report. 

* We also reviewed data from IRS's Statistics of Income (SOI) 
individual files for tax year 2006. SOI is also a widely used database 
consisting of a sample selected before audit of the income tax returns. 
Since the estimates we provide using these data sources are based on 
samples, they involve margins of error. Unless otherwise noted, 
population estimates' margins of error do not exceed 3.54 percentage 
points; contributions estimates' margins of error are a maximum of plus 
or minus 4.1 percent. We assessed these data and determined that they 
were sufficiently reliable for the purposes of this report. 

To explain how the types of fees charged to participants and 
investments of various DC plans differ, we interviewed 6 plan sponsors 
and 11 investment service providers who interact with different DC 
plans to understand how fees may vary among plans. We also consulted 
with four legal experts on the differences among plans, as well as 
associations representing different types of plan sponsors, and service 
providers, and one union representing participants and sponsors. We 
obtained guidance from IRS and Department of Labor (Labor) explaining 
the features of each type of plan. We conducted a search of the 
literature, including academic and industry sources. We compared plan 
differences and similarities, and reviewed tax law and regulations on 
deferred compensation plans. 

To determine how DC plan sponsor actions affect participant fees, we 
conducted a search of the literature, including GAO's prior work, and 
consulted with several industry experts on retirement plans, as well as 
associations representing different types of plan sponsors, and service 
providers, and experts on investment products, such as regulators, and 
researchers. We also consulted with representatives from 11 different 
investment service providers and 6 plan sponsors. 

To outline how fee disclosure requirements vary by plan, we conducted a 
search of the literature, and reviewed the Employee Retirement Income 
Security Act of 1974 (ERISA), other laws, and the Internal Revenue 
Code. We reviewed disclosure laws in Florida and Minnesota to examine 
if state laws outlined disclosure requirements for plans not subject to 
ERISA. We also reviewed the requirements for California and Texas's Web 
sites that provide fee disclosure information to certain participants. 
We reviewed disclosure regulations related to retirement plans as well 
as investment products to compare information required to be disclosed 
across various DC plans and investment products. 

We interviewed officials from the Securities and Exchange Commission 
(SEC), Financial Industry Regulatory Authority, National Association of 
Insurance Commissioners and state insurance regulators. We reviewed 
model disclosure for annuity products and SEC requirements for product 
disclosure. In addition, we interviewed and sought information from 
investment services providers, such as insurance companies and mutual 
funds providers, who interact with retirement plans to describe plan 
fees and disclosure practices. We analyzed 11 service providers' 
responses to structured questions on fees and disclosure. We consulted 
with national experts, such as industry associations and experts. 

To describe the effectiveness of DC plan oversight, we interviewed 
officials from IRS and Labor to discuss plan oversight and topics 
related to reporting and compliance. We reviewed Title I and II of 
ERISA and reporting requirements associated with various DC plans. We 
examined Form 5500 with selected schedules and reviewed secondary legal 
documents such as W-2 forms, instructions, as well as guidance provided 
by Labor on 403(b) plans and 457 plans. 

We conducted this performance audit from June 2008 through September 
2009 in accordance with generally accepted government auditing 
standards. Those standards require that we plan and perform the audit 
to obtain sufficient, appropriate evidence to provide a reasonable 
basis for our findings and conclusions based on our audit objectives. 
We believe that the evidence obtained provides a reasonable basis for 
our findings and conclusions based on our audit objectives. 

[End of section] 

Appendix II: Comments from the Internal Revenue Service: 

Department of the Treasury: 
Internal Revenue Service: 
Washington, DC 20224: 

August 19, 2009: 

Ms. Barbara D. Bovbjerg: 
Director, Education, Workforce and Income Security Issues: 
U S. Government Accountability Office: 
441 G Street, N.W. 
Washington, D.C. 20548: 

Dear Ms. Bovbjerg, 

I reviewed your draft Government Accountability Office (GAO) report 
titled "Better Information and Sponsor Guidance Could Improve Oversight 
and Reduce Fees for Participants" (GAO-09-641). 

The report makes an important contribution to the retirement 
community's understanding of the types of fees charged to defined 
contribution retirement plans and how those fees may vary depending on 
factors such as plan size. As you have pointed out in earlier reports, 
and reiterate in this one, fees have a direct impact on the account 
balances of participants in defined contribution plans, and a resulting 
impact on these individuals' retirement income. We agree that plan 
sponsors, administrators, and advisors can benefit from clear 
information about fees. 

As you point out, the Department of Labor (DOL) has primary 
responsibility for issues relating to fees charged by firms that 
provide services to defined contribution plans The DOL, in its response 
to this report, has outlined a program of regulation that it has 
undertaken to address this issue. 

The Employee Plans function of our Tax Exempt and Government Entities 
Division has a wide-ranging customer education and outreach program 
which communicates with plan participants, sponsors, administrators and 
professional practitioners on matters of importance to the retirement 
community. As part of this program, Employee Plans publishes two 
quarterly electronic newsletters. "Employee Plan News" goes to 68,000 
attorneys, accountants and actuaries who practice in the employee plans 
area. "Retirement News for Employers," aimed at small businesses (that 
tend to sponsor smaller-size defined contribution plans), goes to 
50,000 subscribers. In each of these publications we feature a "DOL 
Corner" which contains news and direct communications from the DOL. 
Readers of our newsletters may link directly to DOL sources. These 
resources are available to provide our retirement community audiences 
with current information not only on tax-related matters, but also on 
important DOL issues such as fees. 

We look forward to working with the DOL on initiatives that will 
advance the goal of educating the retirement community about fees, and 
finding effective ways to reduce fees in order to boost retirees' 
income. 

Responses to your specific recommendations are enclosed. We appreciate 
the continued and valuable support from you and your staff on this 
issue. If you have any questions or would like to discuss this response 
in more detail, please contact Sarah H. Ingram, Commissioner, Tax 
Exempt and Government Entities Division, at (202) 283-2500. 

Sincerely, 

Signed by: 

Linda E. Stiff: 

Enclosure: 

[End of letter] 

Recommendation for the Commissioner: 

Together with the Secretary of Labor, provide guidance designed for 
sponsors of all types of defined contribution plans to suggest ways 
sponsors can cost-effectively decrease participants' fees. 

Response: 

We would be pleased to consult with the Department of Labor (DOL) on 
ways the sponsors can reduce participants' fee. As the DOL notes in its 
letter to Government Accountability Office in response to this report, 
it has undertaken the development of several regulatory projects 
intended to provide "useful and straightforward fee disclosure guidance 
in the near future." As the Secretary of Labor releases such guidance 
we will use our customer education and outreach tools to help 
disseminate it, including posting the guidance or advice, or links to 
it, on the Internal Revenue Service's Employee Plans page. 

Recommendation for the Commissioner: 

To provide improved insight and ensure participants are not violating 
tax-deferral limits, the Commissioner of Internal Revenue should 
collect information to allow the Internal Revenue Service to easily 
differentiate between 457 plans sponsored by governments and 457 plans 
sponsored by tax-exempt entities. 

Response: 

The concern underlying this recommendation arises because participants 
age 50 and above in 457(b) plans sponsored by a governmental unit may 
make annual "catch-up" contributions in addition to the standard annual 
contribution. However participants in 457(b) plans sponsored by tax-
exempt organizations may not make such "catch-up" contributions. 

The Tax Exempt and Government Entities Division will explore ways to 
effectively differentiate between the two kinds of section 457(b) 
plans, including the possibility and amending the instructions for the 
Form W-2 to add a letter code or codes that will distinguish between 
governmental and tax-exempt section 457(b) plans. 

Recommendation for the Commissioner: 

To help ensure that information about service providers' violations is 
shared with financial regulators, we recommend that the Commissioner of 
Internal Revenue work with financial regulators to establish 
a formal MOU. Such a MOU would help instruct agents and would be 
appropriate for limited occasions when information on service providers 
can be shared without revealing protected taxpayer information. In 
addition, the agencies should periodically and update the MOU as 
appropriate. 

Response: 

In our work with other federal agencies, we comply with section 6103 of 
the Internal Revenue Code. This is an important provision that 
addresses both the confidentially and the disclosure of tax returns and 
return information. Acting carefully, we have been able to cooperate 
with federal agencies in highly effective enforcement efforts while 
fully respecting section 6103. A recent example is our partnership with 
the Department of Justice and the Federal Trade Commission. In that 
instance, we collectively moved against entities posing as tax-exempt 
credit counseling organizations without using a memorandum of 
understanding. We believe that the recommendation for a memorandum of 
understanding with financial regulators is not a substitute for 
carefully structured cooperation with these agencies, tailored to the 
characteristics of the situation. We have found that such cooperation 
is both effective and consistent with section 6203, and will engage in 
that cooperation in the situations you described. 

[End of section] 

Appendix III: Comments from the Department of Labor: 

U.S. Department of Labor: 
Employee Benefits Security Administration: 
Washington, DC 20210: 

August 13, 2009: 

Ms. Barbara D. Bovbjerg: 
Director, Education, Workforce, and Income Security Issues: 
United States Government Accountability Office: 
Washington, DC 20548: 

Dear Ms. Bovbjerg: 

We base reviewed the Government Accountability Office's (GAO) draft 
report entitled "Retirement Savings - Better Information and Sponsor 
Guidance Could Improve Oversight and Reduce Fees for Participants" (GAO-
09-641) and the recommendation contained therein as it relates to the 
Secretary of Labor. 

Specifically, the GAO is recommending that the Secretary, together with 
the Commissioner of the Internal Revenue Service, provide guidance 
designed for sponsors of all types of defined contribution plans to 
suggest ways sponsors can cost-effectively decrease participant fees. 

The Department agrees with the GAO that excessive fees can undermine 
the retirement security of plan participants. ERISA requires plan 
fiduciaries, when selecting or monitoring service providers, to act 
prudently and solely in the interest of the plan's participants and 
beneficiaries. Fundamental to a plan fiduciary's ability to discharge 
these obligations is the availability of information sufficient to 
enable the plan fiduciary to make informed decisions about the services 
and the reasonableness of the costs for those services. Similarly, 
understanding what and how expenses affect participant accounts is of 
critical importance to plan participants and beneficiaries in choosing 
among investment choices. 

While these principles may appear straight forward, the Department 
recognizes that understanding and obtaining the information necessary 
to make informed decisions about plan service providers, including 
their compensation arrangements, may he challenging for many plan 
sponsors. In recognition of this challenge, and consistent with the 
recommendations of the GAO, the Department has undertaken the 
development of a regulation that will not only assist plan sponsors in 
understanding what information they need to make informed decisions 
about their service providers, but will help assure that plan 
fiduciaries are provided the needed information by their service 
providers. Specifically, the Department proposed a regulation amending 
the rule under section 408(h)(2) of ERISA to establish an affirmative 
obligation on plan fiduciaries to obtain enumerated disclosures from 
service providers and on plan service provider to furnish such 
disclosures to plan fiduciaries. This information will enable plan 
fiduciaries to understand the nature and scope of the services to he 
provided, the cost of those services, taking into account revenue 
sharing and other arrangements that may affect the cost of such 
services, and potential conflicts of interest on the part of service 
providers that may affect the quality of the services to be furnished 
to the plan. This regulation was published in proposed form on December 
13, 2007 (72 FR 70988) and a public hearing was held regarding the 
proposal on March 31 and April 1, 2008. The Department currently is in 
the process of reviewing the regulatory record, including public 
comments, and plans to move forward in providing useful and 
straightforward fee disclosure guidance in the near future. 

We also wish to note that, independent of the regulation under section 
408(b)(2) of ERISA focusing on fiduciary-level disclosures, the 
Department is taking steps to improve the disclosure of fee and related 
plan information to pension plan participants and beneficiaries. A 
proposed rule was published in the Federal Register on July 23, 2008 
(73 FR 43014). A component of the Department's proposal was a 
requirement that participants and beneficiaries he furnished a chart or 
similar document that would facilitate informed investment decisions by 
the plan's participants and beneficiaries. The Department currently is 
reviewing this regulation for purposes of adopting a final rule and 
model disclosure chart. 

In addition, and also consistent with the GAO's recommendation, the 
Department maintains both educational materials and outreach events 
designed to assist plan sponsors in understanding their 
responsibilities under ERISA, including the selection and monitoring of 
service providers. Examples of materials available on our website 
include: "Meeting Your Fiduciary Responsibilities", "Understanding 
Retirement Plan Fees And Expenses" and guides for selecting and 
monitoring pension consultants, service providers and plan auditors. 
Information concerning our educational programs also is available on 
our website. The Department conducts numerous education and outreach 
events each year. Both our educational materials and our educational 
programs will be updated to reflect the new requirements of the section 
408(b)(2) regulation. following its publication in the Federal 
Register. 

Finally, we note that the Department coordinates with the Department of 
Treasury and the Internal Revenue Service on a wide variety of issues 
of mutual interest, including the formulation of regulatory standards 
and the delivery of public education programs. We believe plan sponsors 
and other members of the regulated community benefit significantly from 
such cooperative efforts. 

As evidenced by the foregoing, the Department has been sensitive to 
plan cost and related issues for sonic time. EBSA is committed to 
protecting the employer-sponsored benefits of American workers, 
retirees, and their families. We appreciate having had the opportunity 
to review and comment on the draft report. Please do not hesitate to 
contact us if you have questions concerning this response or if we can 
be of further assistance. 

Sincerely, 

Signed by: 

Phyllis C. Borzi: 
Assistant Secretary: 

[End of section] 

Appendix IV: Characteristics of DC Plans and IRAs: 

DC plans together have about the same amount of estimated assets as all 
types of IRA accounts, as shown in table 10. At the end of 2008, assets 
for DC plans were estimated at $3 billion, while for IRAs, total 
estimated assets were about $3.6 billion. 401(k) plans have 
significantly more assets than 403(b) plans or 457 plans. 

Table 10: Estimated Total Assets for DC Plans and IRAs, 2008 (Dollars 
in billions): 

401(k): 
Total assets: $2,350. 

403(b): 
Total assets: $572. 

457(b) governmental and tax-exempt: 
Total assets: $140. 

Traditional IRAs: 
Total assets: $3,221. 

Roth IRAs: 
Total assets: $165. 

SEP[A]: 
Total assets: $180. 

SIMPLE: 
Total assets: $44. 

Source: ICI. 

Note: Data on 401(a) and 457(f) plans are not available. Data in this 
table are estimated and should not be compared to the data in other 
tables. 

[A] Asset estimates for SEP plans include figures for Salary Reduction- 
SEP (SAR-SEP) plans. The Small Business Job Protection Act of 1996 
prohibited the formation of new SAR-SEP IRAs after December 31, 1996. 

[End of table] 

Table 11 shows estimated contributions to different types of DC plans 
in 2007. Participants and sponsors made significantly more 
contributions to 401(k) plans than other types of DC plans. 

Table 11: Estimated Contributions to DC Plans, 2007 (Dollars in 
billions): 

401(k): 
Contributions: $165. 

403(b): 
Contributions: $28. 

457(b) governmental and tax-exempt: 
Contributions: $13. 

Source: IRS. 

Note: Data on 401(a) and 457(f) plans are not available. The data in 
this table were provided by IRS and come from a database that contains 
data taken from annual Form W-2 filings. The data are estimated and 
should not be compared to the data in other tables. See appendix I for 
further discussion of this issue. 

[End of table] 

Although table 10 shows that total assets for traditional IRAs are 
significantly greater than assets for other types of IRAs, estimated 
contributions for 2006 are less disparate, as shown in table 12. 
Traditional IRAs often receive rollovers from DC plans; therefore their 
assets are greater. 

Table 12: Estimated Contributions to Individual IRA Accounts, SEP, and 
SIMPLE Accounts, 2006 (Dollars in billions): 

Traditional IRA; 
Contributions: $18. 

Roth IRA; 
Contributions: $19. 

SEP; 
Contributions: $15. 

SIMPLE; 
Contributions: $9. 

Source: IRS. 

Note: This data came from IRS's Compliance Data Warehouse and IRS's 
Statistics of Income. The data are estimated, and should not be 
compared to the data in other tables. See appendix I for further 
discussion of this issue. 

[End of table] 

Table 13 shows the estimated number of individuals who own IRA accounts 
and contribute to employer-sponsored IRAs. Individual traditional and 
Roth IRAs have significantly more account owners than participants in 
employer-sponsored IRAs. 

Table 13: Estimated Number of Individual IRA Account Owners and 
Individuals Contributing to Employer-Sponsored IRAs, 2006: 

Traditional IRA: 
Number of account owners (thousands): 5,414. 

Roth IRA: 
Number of account owners (thousands): 6,843. 

SEP: 
Number of account owners (thousands): 1,559. 

SIMPLE: 
Number of account owners (thousands): 2,088. 

Source: IRS. 

Note: This data came from IRS's Compliance Data Warehouse and IRS's 
Statistics of Income. The data are estimated and should not be compared 
to the data in other tables. See appendix I for further discussion of 
this issue. 

[End of table] 

[End of section] 

Appendix V: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Barbara D. Bovbjerg (202) 512-7215 or bovbjergb@gao.gov: 

Staff Acknowledgments: 

In addition to the contact named above, Tamara Cross, Assistant 
Director; Anna Bonelli; Kenrick Isaac; William King; Jillena Roberts; 
John W. Wheeler, Jr.; Jaime Allentuck; Susan Baker; Alex Galuten; Mimi 
Nguyen; Jessica Orr; Walter Vance; and Najeema Washington made 
important contributions to this report. 

[End of section] 

Footnotes: 

[1] In this report, we refer to DC plans, besides 401(k) plans, that 
qualify for a tax deferral under Internal Revenue Code section 401(a) 
as "401(a) plans." 

[2] GAO, Private Pensions: Changes Needed to Provide 401(k) Plan 
Participants and the Department of Labor Better Information on Fees, 
[hyperlink, http://www.gao.gov/products/GAO-07-21] (Washington, D.C.: 
Nov. 16, 2006). 

[3] Generally, DB plans promise to provide a fixed level of monthly 
retirement income that is based on salary, years of service, and age at 
retirement regardless of how the plan's investments perform. 

[4] Stock bonus plans, which are similar to profit sharing plans except 
that sponsors' contributions generally take the form of stock in the 
sponsors' company, also qualify under I.R.C. section 401(a). Employee 
stock ownership plans (ESOP) can be a type of stock bonus plan. 

[5] Churches may also establish 403(b) plans. Participants in church 
plans have additional investment options. 

[6] Both 457(f) and 457(b) plans of tax-exempt organizations are 
sometimes referred to as "top hat" plans. 

[7] Taxpayers ineligible for the deduction can make nondeductible 
contributions to take advantage of the deferral on investment earnings. 
Distributions are partially taxable. Distributions received before age 
59½ are subject to an additional 10-percent income tax unless they meet 
certain requirements or are used for specific purposes, including the 
purchase of a first home or for higher education expenses. 

[8] Employers must have 100 or fewer employees who earned $5,000 or 
more during the preceding calendar year. 

[9] 457(f) plans are generally different from other plans in that they 
are unfunded and have no deferral limits. Unlike most plans, deferrals 
are generally not required to be set in a retirement account or a 
trust. Thus, the plan is "unfunded." Instead, participants and sponsors 
can agree in advance how much individuals will receive from the sponsor 
pending the fulfillment of certain terms, such as 5 years of service. 
Until the terms are met, the assets must remain in the possession of 
the employer and must be subject to a "substantial risk of forfeiture." 
Otherwise, the assets generally become taxable in the year in which 
there is no substantial risk of forfeiture. 

[10] The ability to transfer or rollover assets is not affected by the 
product in which assets are invested. For example, participants who are 
invested in annuities and participants who are invested in mutual funds 
will be subject to the same transfer and rollover rules and 
limitations. 

[11] Under ERISA, a person is generally a fiduciary with respect to a 
plan, to the extent they exercise any discretionary authority or 
control over plan management or any authority or control over the 
management or disposition of plan assets, render investment advice 
respecting plan money or property for a fee or other compensation (or 
has the authority or responsibility to do so), or have discretionary 
authority or responsibility for plan administration. 29 U.S.C. § 
1002(21)(A). 

[12] These "church plans" can be 401(a), 401(k), or 403(b) plans. 

[13] State and local government plans are exempt from some of these 
requirements. 

[14] Labor and IRS also work together to oversee rules regarding IRA 
prohibited transactions; generally, Labor has interpretive jurisdiction 
and IRS has certain enforcement authority. 

[15] This report does not discuss annuities that are purchased to pay 
benefits when a pension plan is terminated or when an annuity is 
purchased for a terminating participant as a distribution from the 
plan. 

[16] 401(a), 401(k), and 457(b) governmental plans generally require 
that contributions to participants' accounts be set aside in a trust or 
held in an insurance contract. Service providers establishing and 
maintaining a trust to hold plan assets sometimes charge a trustee fee, 
usually a relatively small fee to maintain the trust. Sponsors of 
403(b) plans are not required to hold assets in a trust, but 
participants investing in mutual funds must have custodial accounts. 
Sponsors or participants are sometimes charged for these custodial 
services, which are similar to charges for trustee services. 

[17] Assets in 457(b) tax-exempt and 457(f) plans for highly 
compensated executives do not have to be invested. These plans are 
"unfunded;" that is, they are not set aside in an account for the 
participant, so in some cases, assets may not be invested at all. 

[18] Institutional shares are only sold to larger investors, including 
401(k) plans. 

[19] This includes information necessary for the contract to satisfy 
various legal provisions, such as whether participant loans from plan 
assets exceed certain limits. 

[20] States with "any willing provider" laws are generally unable to 
reduce the number of service providers available to participants. 

[21] [hyperlink, http://www.gao.gov/products/GAO-07-21]. 

[22] [hyperlink, http://www.gao.gov/products/GAO-07-21]. 

[23] The prospectus also contains fund information such as the 
investment objectives or goals, strategies for achieving those goals, 
risks of investing in the fund, expenses, and past performance. 

[24] According to NAIC, states can adopt the model in its entirety in a 
uniform and substantially similar manner with minor variations in style 
and format. Examples of related state activity include: an older 
version of the NAIC model, portions of the NAIC model, legislation or 
regulation derived from other sources, bulletins, and administrative 
rulings. 

[25] The buyers' guide describes fees that purchasers may or may not 
pay and the disclosure document must list products' specific charges 
and fees with an explanation of how they apply. 

[26] Participants in some plans may invest in products not registered 
with SEC or state insurance regulators, such as collective investment 
funds (CIF), which are overseen by bank regulators. The Office of the 
Comptroller of the Currency (OCC), for example, requires banks 
administering a CIF to disclose fees and expenses in a written plan and 
an annual financial report, in addition to other applicable state 
requirements. 

[27] For individual IRA account owners who invest in products for which 
an amount is not guaranteed over a period of time, and the growth rate 
cannot be reasonably projected, IRS generally requires the trustee of 
an individual IRA to disclose each type of fee, and the amount of each 
fee (based on hypothetical assumptions) to the account owner--including 
trustee fees and other administrative fees--before the account is 
opened. 

[28] GAO, Employee Benefits Security Administration: Enforcement 
Improvements Made but Additional Actions Could Further Enhance Pension 
Plan Oversight, [hyperlink, http://www.gao.gov/products/GAO-07-22] 
(Washington, D.C.: Jan. 18, 2007). 

[29] These regulations are currently being reviewed by the new 
administration. 

[30] [hyperlink, http://www.gao.gov/products/GAO-07-21], p. 29. 

[31] Sponsor involvement must be limited to certain activities that 
facilitate the operation of the plan. Other safe harbor conditions are: 
plan participation must be "completely voluntary" for employees; rights 
under the plan are enforceable solely by employees (or a beneficiary of 
an employee); and the sponsor must not receive compensation or 
consideration for offering the plan, other than reasonable compensation 
to cover certain expenses. 

[32] On this form--Form 5500 Annual Return/Report of Employee Benefit 
Plan--most sponsors report information like the number of participants, 
as well as details on the plan's financial condition and investments. 

[33] I.R.C. § 6103 prohibits IRS from disclosing returns and return 
information unless a specific exception applies. However, there may be 
instances in which information, not considered a "return or return 
information" under §6103, could be disclosed without violating that 
statute. 

[34] We have reported that agencies can strengthen their commitment to 
work collaboratively by articulating their agreements in formal 
documents, such as a memorandum of understanding, interagency guidance, 
or an interagency planning document, signed by senior officials in the 
respective agencies. See GAO, Results-Oriented Government: Practices 
That Can Help Enhance and Sustain Collaboration among Federal Agencies, 
[hyperlink, http://www.gao.gov/products/GAO-06-15] (Washington, D.C.: 
Oct. 21, 2005), p. 11. 

[35] In addition to these age 50 catch-up provisions, "special" catch- 
up provisions apply to both 457(b) tax-exempt and 457(b) governmental 
plans. For both governmental and tax-exempt 457(b) plans, for 
participants who are 3 years or less away from the year of normal 
retirement age, the plan ceiling is limited to the lesser of $33,000 or 
$16,500 plus the sum of any amounts in which the participant did not 
contribute up to the annual limit in prior years. 

[36] We have reported that IRS can efficiently resolve errors of this 
sort on taxpayer submissions using math error authority (MEA). Where 
possible, IRS uses MEA to correct certain errors before interest is 
owed by the taxpayer. IRS is granted MEA in 26 U.S.C. § 6213(b). It can 
only be used for certain purposes specified by Congress in 26 U.S.C. § 
6213(g)(2). For more information, see GAO, Tax Administration: IRS's 
2008 Filing Season Generally Successful Despite Challenges, although 
IRS Could Expand Enforcement during Returns Processing, [hyperlink, 
http://www.gao.gov/products/GAO-09-146] (Washington, D.C.: Dec. 12, 
2008). 

[End of section] 

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