DOL and Treasury/IRS Release Fall 2022 Regulatory Agendas

[34825]

January 23, 2023

TO: ICI Members
Pension Committee
Pension Operations Advisory Committee SUBJECTS: Pension
Tax RE: DOL and Treasury/IRS Release Fall 2022 Regulatory Agendas

 

The Department of Labor (DOL) and the Treasury Department and Internal Revenue Service (IRS) recently issued their updated Fall 2022 Semi-Annual Regulatory Agendas (Agendas), which include projected dates for issuance of proposed and final regulations.[1] As described in more detail below, both DOL and Treasury/IRS expect to issue several proposed and final rules in the coming months. Several Agenda items likely will be affected by provisions in the SECURE 2.0 Act.[2]

Department of Labor Agenda

DOL includes the following regulatory projects for the Employee Benefits Security Administration (EBSA) on the current Agenda:

Definition of the Term "Fiduciary." The Agenda continues to indicate that DOL intends to propose an amendment to the regulation defining who is a fiduciary as a result of rendering investment advice for a fee (known as the five-part test).[3] The Agenda explains that "[t]he amendment would take into account practices of investment advisers, and the expectations of plan officials and participants, and IRA owners who receive investment advice, as well as developments in the investment marketplace, including in the ways advisers are compensated that can subject advisers to harmful conflicts of interest." DOL also will propose amendments to existing exemptions or propose "new exemptions to ensure consistent protection of employee benefit plan and IRA investors," in conjunction with the rulemaking. The Agenda continues to list December 2022 as the expected date of a proposal.

Prohibited Transaction Exemption Procedures. In March 2022, DOL proposed amendments to the procedures governing the filing and processing of prohibited transaction exemption (PTE) applications.[4] Unlike most administrative procedures, the proposal contains significant substantive provisions.[5] In the proposal, DOL proposes changes to its procedures that would significantly modify the process and formally codify new additional burdens on applicants and independent fiduciaries covered by an exemption. Of particular significance, the amendments would require incorporation of the "impartial conduct standards" (as formalized in PTE 2020-02)[6] as a baseline condition for approved exemptions. ICI submitted a comment letter on May 31, 2022, expressing concerns regarding the proposal and explaining that the changes will make it more difficult and expensive to apply for a PTE.[7] DOL held a hearing on the proposal on September 15, 2022 and reopened the comment period until October 28, 2022. The Agenda estimates a final rule by April 2023. Note that this project is related to a separate project that is not on the Agenda, proposed amendments to PTE 84-14 (Qualified Professional Asset Manager (QPAM) Exemption).[8]

SECURE Act Implementation and Related Revisions to Form 5500 Reporting. The Setting Every Community Up for Retirement Enhancement Act ("SECURE Act")[9] directs the IRS and DOL to work together to modify Form 5500, Annual Return/Report of Employee Benefit Plan, so that all members of a group of defined contribution plans meeting certain requirements (including having the same trustee, named fiduciary, and plan administrator) may file a single consolidated Form 5500. The SECURE Act required that the consolidated Form 5500 be implemented not later than January 1, 2022 and be effective for returns and reports for plan years beginning after December 31, 2021. On September 15, 2021, the agencies published proposed forms revisions and amendments to the associated regulations to implement the SECURE Act changes and to make other changes intended to collect more plan information and make that data more minable.[10] On December 28, 2021, DOL released a limited set of final revisions to the instructions for the Form 5500 for multiple employer plans (MEPs), including pooled employer plans (PEPs), effective for the 2021 reporting year.[11] This release did not include many of the changes proposed in September 2021, such as implementation of the consolidated filing framework for groups of similar defined contribution plans. On May 20, 2022, the agencies released another set of limited final revisions to the Form 5500 forms and instructions for the 2022 reporting year that included additional changes for reporting on MEPs (including PEPs), but again did not finalize many of the other changes proposed in September 2021.[12] The Agenda estimates the third final rule (listed on the Agenda as "Final Rule Phase III"), which presumably will include the consolidated filing framework for groups of similar plans, by December 2022 (the Spring 2022 agenda had estimated a Final Rule Phase III by March 2023).[13]

Improvement of the Form 5500 Series and Implementing Related Regulations Under ERISA. In addition to implementing the SECURE Act changes to Form 5500 as described above, a separate item on the Agenda relates back to a 2016 proposal to more broadly revise and modernize the Form 5500.[14] The finalization of the 2016 proposal had been removed from the DOL's long-term agenda in 2019, but a new modernization project was added back to the Spring 2021 agenda. The project is described as "part of a strategic project with the [IRS and PBGC] to improve the Form 5500 . . . [by] [m]odernizing the financial and other annual reporting requirements on the Form 5500, making the investment and other information on the Form 5500 more data mineable . . . [and] enhancing the agencies' ability to collect employee benefit plan data that best meets the needs of changing compliance projects, programs, and activities." The Agenda estimates a proposal by June 2023.

Pension Benefit Statements—Lifetime Income Illustrations. The SECURE Act requires defined contribution plans to include an annual lifetime income stream estimate on participant benefit statements, setting forth the lifetime income stream equivalent of the participant's total account balance under the plan, based on an annuity payout.[15] The SECURE Act requires DOL to provide a model lifetime income disclosure, issue rules, and prescribe assumptions. In August 2020, DOL issued an interim final rule, which became effective on September 18, 2021.[16] Though a final rule was expected in advance of the effective date of the interim final rule, the updated Agenda estimates release of the final rule by May 2023.[17]

Adoption of Amended and Restated Voluntary Fiduciary Correction Program. After appearing on DOL's regulatory agenda for several years (since 2014), on November 18, 2022, DOL finally released proposed updates to its Voluntary Fiduciary Correction Program (VFCP), which is designed to encourage the voluntary correction of fiduciary violations by allowing plan fiduciaries to avoid civil penalties and excise taxes by voluntarily disclosing and correcting certain violations of ERISA.[18] The amendments would make several improvements to the program, the most significant being the addition of a new self-correction feature. The package includes proposed updates to the VFCP and proposed amendments to the related prohibited transaction exemption (PTE 2002-51). Comments on both documents were due on January 20, 2023. The Agenda does not list dates for any further actions.

Amendment of Abandoned Plan Program. In December 2012, DOL issued proposed amendments to the abandoned plan regulations, which focused primarily on the ability of a chapter 7 bankruptcy trustee to act as a Qualified Termination Administrator and utilize the existing abandoned plan program to terminate abandoned plans and distribute benefits.[19] The Agenda estimates an interim final rule by January 2023.

Improving Participant Engagement and Effectiveness of ERISA Retirement Plan Disclosures. In an item on the Agenda first added in the Fall 2021 Agenda, listed in the pre-rule stage, DOL intends "to explore ways to improve the effectiveness of retirement plan disclosures required under [ERISA], balanced with the cost to plans and plan participants and beneficiaries of providing such disclosures."[20] DOL "intends to start by consulting with a diverse set of stakeholders, including participant representatives, employers sponsoring ERISA retirement plans, and retirement plan service and investment providers, to explore alternatives for improving the understandability and effectiveness of such disclosures." Further, this review will "explore whether, and how, the content, design, and delivery of such disclosures may be reimagined, improved, consolidated, standardized, and simplified to enhance participants' disclosure experiences, promote greater participant engagement, and improve outcomes." The Agenda lists "stakeholders meetings" for March 2023 but does not identify any specific meetings. Three provisions in the SECURE 2.0 Act likely will impact this project, by requiring DOL and the other agencies to study, and in some cases modify, retirement plan notice and disclosure requirements.[21]

Pooled Employer Plans. Another Agenda item in the pre-rule stage relates to PEPs, created by section 101 of the SECURE Act as a new type of multiple employer pension benefit plan. Section 101 granted DOL authority to issue guidance appropriate to carry out the purposes of the new provisions. In November 2020, DOL established registration requirements for providers of PEPs, including creating new Form PR (Pooled Plan Provider Registration).[22] The Agenda describes this new action as exploring "the need for regulatory or other guidance regarding implementation of the" PEP provisions in the SECURE Act. DOL "intends to start by consulting with a diverse set of stakeholders, including employers and employees and their representatives and retirement plan service and investment providers, to explore areas where regulatory or other guidance would facilitate establishment and operation of pooled employer plans."[23] The Agenda lists "stakeholder meetings" for March 2023 but does not identify any specific meetings. Section 344 of the SECURE 2.0 Act likely will impact this project, as it requires DOL to conduct a study on PEPs, including their impact on coverage, and provide a report to Congress within 5 years of enactment and every 5 years thereafter.[24]

Not on Agenda: ESG investing. The Agenda does not include any projects on ESG investments or proxy voting, although in February 2022, DOL released a Request for Information (RFI) seeking public comment on what actions, if any, DOL should take under federal law to protect retirement savings and pensions from risks associated with changes in climate.[25] ICI commented that the most effective action DOL can take is to finalize its proposed rule to clarify the way ERISA fiduciaries may consider ESG factors—such as climate-related risk factors—in evaluating plan investments.[26] On November 22, 2022, DOL released its final rule on Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights, clarifying that a fiduciary's determination with respect to an investment or investment course of action must be based on factors that the fiduciary reasonably determines are relevant to a risk and return analysis and that such factors may include the economic effects of climate change and other ESG factors on the particular investment or investment course of action.[27]

Treasury Department and IRS Agenda

The Treasury/IRS Agenda includes several retirement savings items, including:

Guidance on 401(a)(9) Required Minimum Distributions (RMDs). The SECURE Act made a number of changes to the RMD rules for IRAs, qualified plans, 403(b) plans and 457(b) plans, as set forth in section 401(a)(9) of the Internal Revenue Code ("Code").[28] The IRS published proposed regulations on February 24, 2022 to implement these changes and address other statutory changes to the rollover rules of Code section 402(c) that have been made since regulations were first issued.[29] ICI submitted a comment letter on May 25, 2022.[30] On October 7, 2022, the IRS released Notice 2022-53, providing limited interim guidance in advance of issuing final regulations.[31] The Agenda continues to list December 2022 as the expected date of final regulations. The SECURE 2.0 Act makes several changes to the RMD rules and it is unclear what impact the new changes will have on the release of final regulations.[32]

MEPs and the Unified Plan Rule. The SECURE Act created an exception to the unified plan rule for multiple employer plans (MEPs) under Code section 413(e), allowing pooled employer plans (PEPs) (as well as other MEPs consisting of related employers) to continue to be treated as satisfying the tax qualification requirements despite the violation of those requirements with respect to one or more participating employers. In the case of a violation of the tax qualification requirements by a participating employer, the SECURE Act allows the plan to spin off the portion of the plan's assets attributable to that participating employer, into a separate plan maintained by that employer. The IRS published proposed regulations to implement the SECURE Act exception on March 28, 2022.[33] ICI submitted a comment letter on May 27, 2022.[34] According to the Agenda, the IRS expects to issue final regulations by May 2023.

Rules Relating to the Use of Electronic Media to Make Participant Elections and Spousal Consents. On December 30, 2022, IRS published proposed regulations to provide rules relating to the use of electronic media to make participant elections and spousal consents.[35] Comments on the proposal are due by March 30, 2023. The Agenda lists this item with no further action listed beyond issuance of the proposal.

SECURE Act Modifications to Certain Rules Governing 401(k) Plans. The SECURE Act included several modifications to the 401(k) plan rules, including to: increase the auto-enrollment safe harbor cap on auto-escalation (section 102); ease rules for safe harbor 401(k) plans (section 103); permit distributions upon elimination of certain lifetime income investment options (section 109); allow 401(k) plan participation by long-term part-time workers (section 112); and exempt from the early withdrawal penalty certain distributions for birth or adoption of a child (section 113).[36] The Agenda continues to list December 2022 as the expected date of proposed regulations to implement these provisions. The SECURE 2.0 Act includes changes to some of these provisions (including the participation rule for part-time workers and the penalty relief for birth/adoption distributions), which could impact the issuance of the proposal.[37]

Guidance on Rules Applicable to IRAs and Roth IRAs. The IRS intends to update the regulations for IRAs and Roth IRAs to incorporate the statutory changes that have been enacted since the regulations were issued. The Agenda estimates proposed regulations by November 2023. The SECURE 2.0 Act includes several changes affecting IRAs, which could impact the issuance of the proposal.[38]

Section 72(t) 10 Percent Additional Tax Regulations. The IRS intends to issue proposed regulations under Code section 72(t), regarding the application of the 10 percent early withdrawal penalty to that portion of a retirement plan distribution includible in gross income and received by a taxpayer before attaining the age of 59-1/2. The Agenda estimates a proposed rule by October 2023. The SECURE 2.0 Act includes several changes to Code section 72(t), which could impact the issuance of the proposal.[39]

Reporting and Notice Requirements for Deferred Vested Benefits Under Section 6057. In June 2012, the IRS issued proposed regulations regarding the filing of Form 8955-SSA, "Annual Registration Statement Identifying Separated Participants with Deferred Vested Benefits." In prior regulatory agendas, the IRS indicated an intent to finalize those regulations. The current Agenda indicates that the IRS will issue a new proposed regulation to provide guidance on furnishing an individual statement to participants who separate from service with a deferred vested benefit. The Agenda estimates a proposal by December 2022.

Guidance on Timing of Use or Allocation of Forfeitures in Qualified Retirement Plans. The IRS plans to propose regulations describing when forfeitures may be used or allocated in a qualified retirement plan. The Agenda estimates a proposal by March 2023.

Withholding on Certain Retirement Plan Distributions Under Section 3405(a) and (b). In 2019, the IRS proposed regulations regarding withholding on certain retirement plan distributions, including payments to be delivered outside the US.[40] The Agenda estimates final regulations by November 2023.

 

Elena Barone Chism
Deputy General Counsel - Retirement Policy

Shannon Salinas
Associate General Counsel - Retirement Policy
 

Notes

[1] DOL's Fall 2022 Agency Rule List is available at https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST&currentPubId=202210&showStage=active&agencyCd=1200. The Treasury Fall 2022 Agency Rule List is available at https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST&currentPubId=202210&showStage=active&agencyCd=1500.

[2] On December 29, 2022, the President signed the Consolidated Appropriations Act, 2023 (H.R. 2617), which includes the SECURE 2.0 Act of 2022. See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[3] Following the Fifth Circuit's vacatur of the Obama era fiduciary rulemaking package, DOL reinstated the five-part test in 2020. See ICI Memorandum No. 32581, dated July 6, 2020, available at https://www.ici.org/memo32581. In the preamble to the prohibited transaction exemption (PTE 2020-02) finalized in December 2020, DOL provided additional commentary regarding its interpretation of the five-part test. See ICI Memorandum No. 32999, dated December 18, 2020, available at https://www.ici.org/memo32999. DOL provided additional guidance regarding the application of the five-part test in the form of FAQs issued in April 2021. See ICI Memorandum No. 33485, dated April 19, 2021, available at https://www.ici.org/memo33485. In October 2021, DOL extended its temporary enforcement policy relating to PTE 2020-02. See ICI Memorandum No. 33873, dated October 28, 2021, available at https://www.ici.org/memo33873.

[4] For a summary of the proposal, see ICI Memorandum No. 34068, dated March 9, 2022, available at https://www.ici.org/memo34068.

[5] ICI joined several other trade organizations in requesting that DOL (1) extend the comment period to from 30 to 60 days; and (2) reevaluate whether the proposal is significant and therefore not subject to OMB review. See ICI Memorandum No. 34087, dated March 25, 2022, available at https://www.ici.org/memo34087. In response to the request, DOL announced an extension of the comment period but did not address the second request of the letter—requesting that there be a reevaluation of whether the proposal constitutes "significant" rulemaking. See ICI Memorandum No. 34108, dated April 12, 2022, available at https://www.ici.org/memo34108.

[6] See ICI Memorandum No. 32999, dated December 18, 2020, available at https://www.ici.org/memo32999.

[7] See ICI Memorandum No. 34166, dated June 1, 2022, available at https://www.ici.org/memo34166.

[8] ICI submitted a comment letter on October 11, 2022, expressing significant concerns regarding the proposed QPAM amendments and explaining that the changes, if finalized, will make it more difficult and expensive to use the exemption, put the scope of its coverage in doubt, and in some instances actually harm the very interests of those parties it seeks to protect. See ICI Memorandum No. 34308, dated October 12, 2022, available at https://www.ici.org/memo34308. DOL held a hearing on the QPAM proposed amendments on November 17, 2022 and reopened the comment period until January 6, 2023.

[9] For an overview of the SECURE Act, see ICI Memorandum No. 32118, dated December 20, 2019, available at https://www.ici.org/memo32118.

[10] For a description of the proposal, see ICI Memorandum No. 33783, dated September 22, 2021, available at https://www.ici.org/memo33783. ICI submitted a comment letter on October 29, 2021 urging the agencies to postpone aspects of the proposal not related to implementing the SECURE Act and, with respect to the new consolidated filing framework for groups of similar defined contribution plans, to (1) permit large plans within the filing group to have a consolidated plan audit, (2) expand the consolidated filing framework to cover 403(b) plans, and (3) clarify the requirement that participating plans have the same investments. See ICI Memorandum No. 33877, dated November 2, 2022, available at https://www.ici.org/memo33877.

[11] See ICI Memorandum No. 33975, dated December 29, 2021, available at https://www.ici.org/memo33975.

[12] See ICI Memorandum No. 34161, dated May 25, 2022, available at https://www.ici.org/memo34161.

[13] Section 245 of the SECURE 2.0 Act of 2022 (enacted on December 29, 2022) amends section 202 of the SECURE Act, relating to the consolidated filing group, to provide that any independent audit required by section 103(a)(3) of ERISA shall relate only to each individual plan that is otherwise subject to the audit requirement. This should allow small plans (fewer than 100 participants) within the consolidated filing group to continue to be exempted from the independent audit requirement. See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[14] For a summary of the 2016 proposal, which would have significantly increased plans' reporting burden, see ICI Memorandum No. 30071, dated July 25, 2016, available at https://www.ici.org/memo30071.

[15] For an overview of the SECURE Act, see ICI Memorandum No. 32118, dated December 20, 2019, available at https://www.ici.org/memo32118.

[16] See ICI Memorandum No. 32686, dated August 19, 2020, available at https://www.ici.org/memo32686. ICI submitted comments on the interim final rule in November 2020. See ICI Memorandum No. 32915, dated November 17, 2020, available at https://www.ici.org/memo32915.

[17] This project is listed as a continuation of the Pension Benefit Statements project that appeared on the EBSA's long-term agenda in Fall 2019. Previously, the project related to DOL's Advance Notice of Proposed Rulemaking (ANPRM) regarding lifetime income stream illustrations in May 2013. For a description of the ANPRM, see ICI Memorandum No. 27228, dated May 8, 2013, available at https://www.ici.org/memo27228. For a description of ICI's comment letter responding to the ANPRM, see ICI Memorandum No. 27446, dated August 7, 2013, available at https://www.ici.org/memo27446.

[18] For a summary of the proposed amendments, see ICI Memorandum No. 34401, dated November 23, 2022, available at https://www.ici.org/memo34401.

[19] For a description of the proposed amendments, see ICI Memorandum No. 26799 dated December 20, 2012, available at https://www.ici.org/memo26799. ICI submitted a comment letter in response to the proposed amendments. See ICI Memorandum No. 27050, dated February 26, 2013, available at https://www.ici.org/memo27050.

[20] In 2019, in conjunction with its proposed safe harbor for e-delivery of ERISA disclosures, DOL issued an RFI "that explores whether and how any additional changes to ERISA's general disclosure framework, focusing on design, delivery, and content, may be made to further improve the effectiveness of ERISA disclosures." 84 Fed. Reg. 56894, 56894 (October 23, 2019). See ICI Memorandum No. 32022, dated October 24, 2019, available at https://www.ici.org/memo32022. As indicated in this memorandum, ICI also provided input to the ERISA Advisory Council on its related topic of study in 2017. While the Agenda does not refer to this prior RFI, the RFI may provide insight into the types of questions that DOL may be considering. ICI included responses to the RFI in its 2019 comment letter. See ICI Memorandum No. 32062, dated November 25, 2019, available at https://www.ici.org/memo32062.

[21] See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795. Section 319 of the SECURE 2.0 Act directs DOL, Treasury, and the PBGC to review the reporting and disclosure requirements in ERISA and the Internal Revenue Code applicable to pension and retirement plans and, within three years, to provide a joint report to Congress with recommendations to "consolidate, simplify, standardize, and improve" the requirements. The agencies are to consult with a balanced group of participant and employer representatives and to collect data, as needed, to assess the effectiveness of disclosure requirements. Section 340 requires (within three years of enactment) DOL to review its fee disclosure regulation for participant-directed individual account plans (see 29 CFR 2550.404a-5) and explore how the disclosures could be improved to enhance participants' understanding of fees. The Act requires DOL to report to Congress on the findings and recommendations for legislative changes to address the findings. Finally, section 341 requires (not later than two years after enactment) DOL and Treasury to adopt regulations permitting a DC plan to consolidate two or more of the following notices required under ERISA and the Internal Revenue Code: qualified default investment alternative (QDIA) notice, automatic contribution arrangement notice, 401(k) safe harbor plan notice, qualified automatic contribution arrangement notice, and permissive withdrawal notice.

[22] See ICI Memorandum No. 32921, dated November 18, 2020, available at https://www.ici.org/memo32921.

[23] Note that DOL previously issued an RFI on prohibited transactions involving PEPs in 2020, but has not taken further action on the topic. See ICI Memorandum No. 32539, dated June 18, 2020, available at https://www.ici.org/my_ici/memorandum/memo32539. The RFI indicated that DOL is considering whether to propose a class exemption to cover prohibited transactions involving PEPs and MEPs. It asked questions about the possible parties, business models, conflicts of interest, and prohibited transactions that might exist in connection with PEPs (or other MEPs that are not PEPs), for purposes of assessing the need for new prohibited transaction exemptions or amendments to existing exemptions. ICI filed a comment letter responding to the RFI. See ICI Memorandum No. 32622, dated July 20, 2020, available at https://www.ici.org/my_ici/memorandum/memo32622. In that letter, we urged DOL to provide guidance needed to implement the SECURE Act's PEP provision and to ensure that no barriers will stand in the way of financial services firms participating in the PEP market.

[24] See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795. The report should make recommendations on how PEPs can be improved to serve and protect participants.

[25] See ICI Memorandum No. 34033, dated February 14, 2022, available at https://www.ici.org/memo34033.

[26] For an overview of ICI's response to the RFI, see ICI Memorandum No. 34138, dated May 12, 2022, available at  https://www.ici.org/memo34138.

[27] For an overview of the final rule, see ICI Memorandum No. 34506, dated December 5, 2022, available at https://www.ici.org/memo34506.

[28] For an overview of the SECURE Act, see ICI Memorandum No. 32118, dated December 20, 2019, available at https://www.ici.org/memo32118.

[29] For a description of the proposed regulations, see ICI Memorandum No. 34057, dated March 4, 2022, available at https://www.ici.org/memo34057-0.

[30] For an overview of ICI's comment letter, see ICI Memorandum No. 34160, dated May 25, 2022, available at https://www.ici.org/memo34160.

[31] For an overview of Notice 2022-53, see ICI Memorandum No. 34307, dated October 10, 2022, available at https://www.ici.org/memo34307.

[32] See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[33] For a description of the proposed regulations, see ICI Memorandum No. 34109, dated April 12, 2022, available at https://www.ici.org/memo34109. For ICI's comment letter on the proposed regulations, see ICI Memorandum No. 34164, dated May 27, 2022, available at https://www.ici.org/memo34164.

[34] For an overview of ICI's comment letter, see ICI Memorandum No. 34164, dated May 27, 2022, available at https://www.ici.org/memo34164.

[35] For a summary of the proposal, see ICI Memorandum No. 34806, dated January 13, 2023, available at https://www.ici.org/memo34806.

[36] For more information on these SECURE Act provisions, see ICI Memorandum No. 32118, dated December 20, 2019, available at https://www.ici.org/memo32118. Note that in 2020, IRS issued Notice 2020-68, which provided initial guidance relating to sections 112 and 113. See ICI Memorandum No. 32741, dated September 4, 2020, available at https://www.ici.org/memo32741. IRS also issued Notice 2020-86, which provided initial guidance relating to sections 102 and 103. See ICI Memorandum No. 32978, dated December 11, 2020, available at https://www.ici.org/memo32978.

[37] See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[38] See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[39] See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[40] See ICI Memorandum No. 31818, dated June 21, 2019, available at https://www.ici.org/memo31818.