Andrew S. Williams
We’ve all read about the lawsuits questioning an employer’s 401(k) investment fund selections and related claims of excessive fund costs. And typically a plan’s professional investment advisor (yes – you should have one unless you have an investment professional on staff) meets with company representatives periodically to discuss a detailed report on fund investment performance and any recommended changes in the plan’s investment fund selections. So, your 401(k) plan files bulge with investment-related materials (and they should!). But what about the rest of an employer’s 401(k) responsibilities?
As posed by the moderator of the 401(k) panel at the Illinois CPA Society’s recent annual Summit that I had the pleasure of appearing on, what should plan sponsors be paying attention to in addition to monitoring plan investment results?
Good question – so what can you do to get a leg up on the rest of the 401(k) universe?
Consider online IRS compliance guides like “A Plan Sponsor’s Responsibilities”. This material covers plan documentation, monitoring plan service providers, internal controls, law changes, payroll data you need to share with plan providers, hardship distributions, participant loans, ERISA fiduciary bonds, as well as eligibility, vesting and benefit payment matters. It also provides links to other IRS compliance resources and is a good starting point to find more detailed information on specific plan administrative requirements such as government filings, participant notices and fiduciary requirements. Also consider articles such as “Your Fiduciary Duty – And What to Do About It”.
There’s more to an employer’s 401(k) responsibilities than selecting and reviewing plan investment funds. Remember, as the “Plan Administrator,” the buck stops with the employer when it comes to all compliance matters. So, consider IRS guidance as a starting point, but do not hesitate to address any resulting concerns with your plan’s investment advisor, third party administrator, accountant or ERISA lawyer.
Property Tax Insights
James W. Chipman
By James W. Chipman
Any corporate taxpayer contemplating an appeal should call a property tax attorney sooner rather than later.
A corporation is considered a person under the law, albeit an artificial one. It sounds like an odd concept, but it’s been around for a while. Odder yet is that corporate personal rights exist and are expanding. Pro se or self-representation is a right that’s as old as our Constitution. In the property tax appeal process, an individual can always represent themselves, but does the same rule apply to a corporation? It depends.
Illinois has a multilevel property tax appeal system. The taxpayer must file locally with the county board of review. They also have the option to go the state Property Tax Appeal Board (PTAB). These two administrative bodies decide most of the appeals that are filed statewide each year. Because administrative agencies are considered quasi-judicial bodies and not courts, they aren’t bound by strict rules of procedure. They can write their own rules of practice and enforce them as long as they comply with the law.
The PTAB hears appeals from the boards of review and is the final arbitrator in the administrative process before court. The PTAB bans corporations, limited liability companies (LLCs) and other similar entities from appearing on their own behalf at any stage of a board appeal.* That rule was put into effect based on the assertion that the representation of anyone other than themselves constitutes the practice of law that can only be done by a licensed attorney. There’s also the matter of conflicting interests—attorney representation of a corporation ensures that a company’s legal interests come first and don’t conflict with the interests of a director, officer or agent.
While many boards of review have taken the PTAB’s lead and required a corporate taxpayer to be represented by an attorney, the rules vary from county to county. Some boards allow a corporation to be represented by other parties but may require the company to sign an authorization form. Other boards don’t even address representation in their rules.
The question of whether corporate representation by an attorney is required in an administrative hearing was considered by the Illinois Supreme Court just last year. The case involved a limited liability corporation represented by a non-attorney in the City of Chicago’s department of hearings over what constitutes due process in an administrative hearing. The court declined to answer the representation question, finding it wasn’t necessary for a resolution of the case.**
THE SAFE HARBOR APPROACH
Deciding to appeal your company’s property tax assessment can be a complicated undertaking that requires a great deal of time and expertise. Companies shouldn’t attempt to represent themselves at any board of review hearing, even if the practice is allowed.
It’s always wise to engage the services of a property tax attorney, whether or not it’s required, because while some mistakes can be fixed, others can’t. Proceeding on your own could mean missing a deadline, not knowing what evidence to submit or lacking a detailed understanding of the rules of practice and procedure. These elements are often challenging for any person—natural or artificial—to navigate, thus having an experienced property tax attorney on your side is the way to go.
*ILL. ADMIN. CODE tit. 86, §1910.70 (c)
**Stone Street Partners, LLC, v. The City of Chicago Department of Administrative Hearings, 2017 IL 117720