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4.72.18 Nonbank Trustee Investigation Procedures
Manual Transmittal
April 05, 2016
Purpose
(1) This transmits revised IRM 4.72.18, Employee Plans Technical Guidance, Nonbank Trustee Investigation Procedures.
Material Changes
(1) The address for the Employee Plans Compliance Unit (EPCU) in IRM 4.72.18.4.1,IRM 4.72.18.4.2, IRM 4.72.18.4.3, and IRM 4.72.18.4.4has been revised.
(2) Other minor editorial changes, including revisions to reflect plain language requirements, were made throughout the document.
Effect on Other Documents
This supersedes IRM 4.72.18 dated October 9, 2014.
Audience
TE/GE, Employee Plans
Effective Date
(04-05-2016)
Robert S. Choi
Director, Employee Plans
Tax Exempt and Government Entities
4.72.18.1 (04-05-2016)
Overview of Nonbank Trustees
This IRM is designed primarily to help Employee Plans (EP) examination agents and their managers to identify relevant issues relating to nonbank trustee or nonbank custodian (NBTs).
A NBT is a financial entity that is neither entity below but is permitted to serve as a trustee or custodian for tax‑exempt retirement and savings accounts listed, if it demonstrates to the Commissioner’s satisfaction that it meets the requirements in 26 CFR 1.408-2(e)(2) through 26 CFR 1.408-2(e)(5)(viii):
A bank (per IRC 408(n))
An insurance company (per IRC 816)
The Director, Employee Plans has jurisdiction to approve an entity to serve as an NBT.
EP Exam investigates approved NBTs for their continued compliance with the NBT regulations.
EP Exam submits their NBT investigation reports to EP Rulings and Agreements (R&A).
4.72.18.1.1 (04-05-2016)
Legislation
This table lists the legislative and administrative history of impacted NBT laws and regulations:
4.72.18.1.2 (04-05-2016)
Definitions
The term "account" or "fiduciary account" includes:
A medical savings account established under IRC 220
A health savings account described in IRC 223
A trust described in IRC 401(a) (including a custodial account described in IRC 401(f))
A custodial account described in IRC 403(b)(7)
An individual retirement account (IRA) described in IRC 408 (including an account established by employers and certain employee associations per IRC 408(c))
A custodial account described in IRC 408(h)
A simplified employee pension plan described in IRC 408(k)
A simple retirement account described in IRC 408(p)
A deemed IRA under a qualified employer plan described in IRC 408(q)
A Roth IRA described in IRC 408A
A Coverdell education savings account described in IRC 530 (including a custodial account described IRC 530(g))
A custodial account of an eligible deferred compensation plan described in IRC 457(b)
The term account or fiduciary account under 26 CFR 1.408-2(e)(5)(viii)(A) means:
A trust described in IRC 401(a) (including a custodial account described in IRC 401(f))
A custodial account described in IRC 403(b)(7)
An individual retirement account described in IRC 408(a) (including a custodial account described in IRC 408(h))
Reminder:
This regulation was written before the accounts listed below existed or required its trustee or custodian to be: i) a bank (per IRC 408(n)), ii) a bank or an insurance company per IRC 816 (for Archer MSAs and health savings accounts), or iii) an approved NBT or custodian:
Medical savings accounts - IRC 220(d)(1)(B) and Notice 96-53
Health savings accounts - IRC 223
Deemed IRAs - IRC 408(q)
Roth IRAs - IRC 408A
Coverdell education savings accounts - IRC 530
Custodial accounts of eligible deferred compensation plans - IRC 457(b)
Note:
Therefore, the definition of "account" or "fiduciary account" in 26 CFR 1.408-2(e)(5)(viii)(A) is expanded to include these accounts. Not including these accounts in the definition of account or fiduciary account miscalculates the NBTs required net worth.
The term "plan administrator" means an administrator per 26 CFR 1.414(g)-1.
The term "common investment fund" means a trust that both:
Consists of all or part of the assets of several accounts that have been established with the applicant.
Is described in IRC 401(a) and exempt from tax under IRC 501(a), or is a trust that is created for the purpose of providing a satisfactory diversification of investments or a reduction of administrative expenses for the participating accounts and that satisfy the requirements of IRC 408(c).
The term "fiduciary records" means all matters which are written, transcribed, recorded, received, or otherwise come into the possession of the applicant and are necessary to preserve information concerning the acts and events relevant to the fiduciary activities of the applicant.
The term "qualified public accountant" means a qualified public accountant, as defined in the Employee Retirement Income Security Act of 1974, section 103(a)(3)(D) who is independent of the applicant.
The term "net worth" means the amount of the applicant's assets less the amount of its liabilities, as determined in accordance with generally accepted accounting principles.
4.72.18.2 (04-05-2016)
Technical Overview
The trustee or custodian for any of these accounts/plans must be: i) a bank, ii) a health savings account, a bank or an insurance company (per IRC 816) for an Archer MSA, or iii) another person (not an individual) approved by the IRS to serve as an NBT. See 26 CFR 1.408-2(e).
An Archer MSA established under IRC 220
A health savings account established under IRC 223
An IRA established under IRC 408IRC 408A or IRC 530
A plan qualified or established under IRC 401(a), IRC 403(b)(7), or IRC 457(b)
To serve as an NBT, an entity must demonstrate in writing, to the Commissioner’s satisfaction, that the requirements of 26 CFR 1.408-2(e)(2) through 26 CFR 1.408-2(e)(5)(viii)(F) will be met. See 26 CFR 1.408-2(e)(1).
If the requirements are met, the NBT receives a written Notice of Approval (NOA) that specifies the approval’s effective day. The NBT isn’t authorized to accept any fiduciary account before the NOA is effective. See 26 CFR 1.408-2(e)(7)(i).
A NBT’s continued approval is contingent upon its continued satisfaction of the criteria under 26 CFR 1.408-2(e).
The NBT must notify the Commissioner, in writing via a "Notice of Change," (NOC) of any change that affects the continuing accuracy of any representations it made in its application. See 26 CFR 1.408-2(e)(6)(iv).
If the Commissioner determines that the NBT is unwilling or unable to administer fiduciary accounts in a manner consistent with these requirements, the NOA is revoked. See 26 CFR 1.408-2(e)(7)(iv).
NBT applications are submitted under Rev. Proc. 2014-4 to:
Internal Revenue Service
Commissioner, TE/GE
Attention: SE:T:EP:RA
P.O. Box 27063
McPherson Station
Washington, DC 20038
4.72.18.2.1 (04-05-2016)
Selection for Investigation
EP Rulings & Agreements (R&A) and EP Exam employees involved with the NBT program access a database that contains information on each NBT. The database:
Includes prior NBT applications.
Can only be updated by assigned employees in EP R&A, EP Exam, and Employee Plans Compliance Unit (EPCU).
Continually tracks approvals, withdrawals, suspensions, revocations, and the type and frequency of contact we made to each NBT.
Is used to produce the periodically published list of approved NBTs.
Each fiscal year, EP Classification selects a minimum of four approved NBTs from the approved list for each Area to investigate for the NBT’s continued compliance with the NBT regulations (We may select additional approved NBTs for investigation based on operating priorities and available resources.)
The goal is to conduct 20 NBT investigations each fiscal year, and each NBT investigated at least once every five years.
The actual number of NBTs investigated depends on how many NBTs we haven’t investigated in the prior five years.
There may be years when there aren’t 20 NBTs on the list to investigate.
If the IRS receives information that a specific approved NBT may not be in compliance with the NBT regulations, we submit a request or recommendation to EP Classification for investigation of the approved NBT.
4.72.18.3 (04-05-2016)
Establishing the NBT Investigation Case
EP Classification: establish the NBT investigation on RCCMS and Non-Master File (NMF) AIMS as:
EP Classification: include these IDRS research documents in the case file:
INOLES/T - to verify entity information
BMFOLI - to verify return filings, balances due, freeze codes
PMFOLS - to identify entity-issued information return filings (i.e., Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc. or Form 5498, IRA Contribution Information)
Note:
If you need specific data for Forms 1099-R or 5498, request an IRPTR(R) print.
AMDIS - to verify the entity is not under current audit
EP Classification: obtain the NBT electronic folder that contains all of the approved NBT’s being investigated available closed case files from EP R&A. Find the electronic information on the shared drive database that contains all of the NBT historical information. SeeIRM 4.72.18.2.1 (1).
EP Classification: forward to the manager of the EP Exam group that will perform the NBT investigation, the:
NBT electronic folder which contains the NBT application
EP R&A Technical contact assigned to the NBT investigation name and contact information
Any other pertinent information
Note:
The EP R&A Technical employee is assigned by the Manager, EP R&A Technical Group 1.
The group manager will assign the NBT investigation to an agent.
The EP agent will:
Consult with the EP R & A Technical contact (SE:T:EP:RA:T1) monthly to report on the investigation’s status and to discuss any concerns.
Contact the EP R &A contact at any time if you have questions about:
4.72.18.3.1 (04-05-2016)
Full Investigation Determination
Determine if an investigation is necessary based on the following criteria:
4.72.18.3.2 (04-05-2016)
Prepare for the NBT Investigation
Prepare for the NBT investigation by following these steps:
Request the NBT provide the following information or documents to demonstrate its continued compliance with the NBT regulations:
Ask for separate meetings (one immediately after the other) at the on-site meeting with:
The head of the Trust Department and the supervisors/managers of the trust employees to better understand the internal controls and the systems used for accounting for the fiduciary account assets. The meeting shouldn’t take longer than two hours.
A few (not more than seven) randomly selected employees who handle the fiduciary accounts to verify that the controls are working and to learn of their experiences handling fiduciary accounts.
4.72.18.3.3 (04-05-2016)
Verify Compliance with the NBT Requirements
Interview the approved NBT to verify compliance with the below listed NBT requirements. See IRM 4.72.18.3.5, Post Interview, to link to the Checksheet/Workpaper that you must complete to document the NBT investigation.
Continuity. The NBT must assure the uninterrupted performance of its fiduciary duties notwithstanding the death or change of its owners. 26 CFR 1.408-2(e)(i)(B) and (C) give safe harbors (diversity of ownership) for meeting the continuity requirement. EP R&A has approved some NBTs applications or accepted some NBTs during the NOC process (26 CFR 1.408-2(e)(6)(iv)) who fell outside of the safe harbors based on a "facts and circumstances test." The facts and circumstances test factors are:
Rules of Fiduciary Conduct. The NBT must demonstrate, during the application process, that it meets the provisions of the rules of fiduciary conduct listed in 26 CFR 1.408-2(e)(5)(i) through (viii) via:
Applicable regulatory requirements
Corporate or other governing instruments
Its established operating procedures
The NBT may demonstrate compliance with the rules of fiduciary conduct by:
The NBT’s board of directors (or its equivalent) resolution adopting the rules of fiduciary conduct and a copy of the document or its appropriate section containing the rules of fiduciary conduct as adopted by the board of directors. The resolution may notincorporate rules of fiduciary conduct by reference.
Providing evidence it’s operating under applicable statutory requirements either under state or federal law, which mirror the rules of fiduciary conduct.
Verify that the NBT’s owners or directors are responsible for:
Determining the NBT’s fiduciary policies
Investing and disposing property held by the NBT in a fiduciary capacity
Directing and reviewing that the actions of all employees (hire-fire relationship) the NBT uses in exercising its fiduciary powers are the NBT’s owners or directors or designated employees who are assigned, by action duly recorded, by the owners or directors responsibility (26 CFR 1.408-2(e)(5)(i)(A)(1)).
Note:
In carrying out this responsibility, the owners or directors, may assign the administration of the NBT’s fiduciary powers (as may be proper to assign) to designated employees, by action duly recorded.
Verify that the NBT, in operation, made a written record of accepting, relinquishing or closing out all fiduciary accounts, and the assets held for each account. 26 CFR 1.408-2(e)(5)(i)(A)(2).
Verify that in operation, if the NBT (or a member of a controlled group of corporations (per IRC 1563(a)) to which the NBT belongs) has the authority or the responsibility to render any investment advice for the assets held in or for each fiduciary account, it determines if it’s advisable to retain or dispose the assets at least once every 12 months. See 26 CFR 1.408-2(e)(5)(i)(A)(3).
Obtain a copy of the bond or insurance policy, per 26 CFR 1.408-2(e)(5)(i)(B), in which the NBT is the named insured, that is properly endorsed by the insurer and includes all conditions, limitations, addendum, and riders and include it in the Investigation case file to verify in operation that both:
All employees taking part in the performance of the NBT’s fiduciary duties are bonded in a current, properly endorsed bond or insurance policy that is similar to a standard fidelity, stock broker, or financial institution bond where the NBT is named as the insured.
The insurer’s bond or insurance policy liability limit is at least $250,000 after all deductibles.
Verify that in operation the NBT employs or retains legal counsel who is readily available to pass upon fiduciary matters and to advise the NBT. See 26 CFR 1.408-2(e)(5)(i)(C).
If the NBT (or a member of a controlled group of corporations per IRC 1563(a) to which the NBT belongs), has the authority or the responsibility to render investment advice for the assets held in or for each fiduciary account, verify that in operation the NBT segregates the performance of its fiduciary duties from other business activities by maintaining a separate trust or custodial division under the immediate supervision of an individual designated for that purpose. The trust or custodial division may use the NBT’s other division’s employees and facilities and NBT’s other divisions may use the employees and facilities of the trust or custodial division, as long as they preserve the separate identity of the trust or custodial division. See 26 CFR 1.408-2(e)(5)(i)(D).
Verify that the NBT’s net worth (as defined in 26 CFR 1.408-2(e)(5)(viii)(F)) is adequate.
Note:
A governmental unit that seeks to qualify as a nonbank trustee of a deemed IRA that is part of a plan qualified under IRC 401(a), IRC 403(a), IRC 403(b), or IRC 457 doesn’t need to demonstrate that it satisfies the net worth requirements in 26 CFR 1.408-2(e)(5)(ii) or this section if it demonstrates instead that it possesses taxing authority under applicable law. 26 CFR 1.408-2(e)(8)(i).
For purposes of this IRM section, the term governmental unit means a state, political subdivision of a state, and any agency or instrumentality of a state or political subdivision of a state. 26 CFR 1.408-2(e)(8)(ii).
Verify that the NBT determines the value of the assets held by it in fiduciary accounts at least once each calendar year and no more than 18 months after the preceding valuation. The assets must be valued at their fair market value, except that for employee pension benefit plans to which section 103(b)(3)(A) of the Employee Retirement Income Security Act of 1974 (29 USC 1023(b)(3)(A)) applies, assets are considered to have the value stated in the plan’s most recent annual report. 26 CFR 1.408-2(e)(5)(ii)(E).
The value of all assets the NBT holds in fiduciary accounts is an important element of the formulas used to determine the adequacy of the NBT’s net worth. Therefore, it’s important to ensure that the NBT’s fiduciary accounts value is accurate.
The NBT can’t declare the value of certain assets (such as limited partnerships and stock of closed corporations that aren’t publicly traded) as indeterminable or consistently report a value of $0.00, $1.00, or cost. If it were allowed to do so, the adequacy of its net worth will become indeterminable. In addition, Forms 1099R and 5498 will be under or over stated and result the account holder’s loss of tax revenue or over taxation. Therefore, the NBT must value all assets in its fiduciary accounts. For those assets whose value isn’t easily determinable, the NBT must develop a method for valuing them and give a description of the method.
If the NBT is unwilling or unable to value all the assets it holds in fiduciary accounts, close the case recommending revocation per the closing procedures inIRM 4.72.18.4 because the adequacy of the NBT’s net worth can’t be determined.
Calculate the adequacy of the NBT’s net worth using the following equations:
Verify for the audit requirement in 26 CFR 1.408-2(e)(5)(iii), that:
At least once during each 12-month period, the NBT gets a detailed audit of its fiduciary books and records by a qualified public accountant.
During the audit, the NBT determined whether the fiduciary accounts were administered: according to the law, the NBT’s rules of fiduciary conduct, and sound fiduciary principles.
The audits were conducted according to generally accepted auditing standards and involve whatever tests the qualified public accountant thinks are needed of the fiduciary books and records.
Note:
If the NBT is regulated, supervised, and subject to periodic examination by a state or federal agency, the NBT may adopt an adequate continuous audit system in lieu of the periodic audits required by 26 CFR 1.408-2(e)(5)(iii)(A) as long as the continuous audit system includes determining whether the fiduciary accounts have been administered in accordance with law, these rules of fiduciary conduct, and sound fiduciary principles. The continuous audit system must be conducted according to generally accepted auditing standards and involve whatever tests of the NBT’s fiduciary books and records the auditor considers necessary.
Verify that the report of the audits and examinations required by 26 CFR 1.408-2(e)(5)(iii) and the actions taken on them is noted in the NBT’s fiduciary records.
Verify that funds held in a fiduciary capacity, by the NBT, awaiting investment or distribution are not held uninvested or undistributed any longer than is reasonable for the proper management of the account. 26 CFR 1.408-2(e)(5)(iv).
Verify that except for investments pooled in a common investment fund (per CFR 1.408-2(e)(5)(viii)(C) according to 26CFR 1.408-2(e)(5)(vi)) the investments of each account won’t be commingled with any other property. 26 CFR 1.408-2(e)(5)(v)(A).
Verify that the assets of accounts requiring safekeeping are deposited in an adequate vault and the NBT keeps a permanent record of assets deposited in or withdrawn from the vault. ( 26 CFR 1.408-2(e)(5)(v)(B).
If the NBT maintains a common investment fund (per 26 CFR 1.408-2(e)(5)(viii)(C)), verify that:
The NBT is authorized under applicable law to administer a common investment fund. 26 CFR 1.408-2(e)(5)(vi).
The pooling of the assets in a common investment fund doesn’t violate the plan documents or applicable law. 26 CFR 1.408-2(e)(5)(vi).
The common investment fund is administered according to 26 CFR 1.408-2(e)(5)(vi)(A) through (F). 26 CFR 1.408-2(e)(5)(vi).
The NBT’s rules of fiduciary conduct doesn’t contain and isn’t operating under any provisions that apply only to passive NBTs.
Verify that the NBT keeps its fiduciary records separate and distinct from other records and retains them for as long as their contents may become material in administering any internal revenue law. 26 CFR 1.408-2(e)(5)(vii).
Verify that the fiduciary records contain full information for each account. 26 CFR 1.408-2(e)(5)(vii)(A).
Verify that the NBT keeps an adequate record of all pending litigation to which it is a party in connection with exercising its fiduciary powers. 26 CFR 1.408-2(e)(5)(vii)(B).
4.72.18.3.4 (04-05-2016)
Changes Experienced by the NBT Revealed During the Interview
If the approved NBT has experienced any changes that affect the continuing accuracy of any representation made in its application, ask the NBT to prepare a NOC per 26 CFR 1.408-2(e)(6)(iv) addressed to the IRS at the address in IRM 4.72.18.2 (7).
Include the NOC in the NBT investigation case file.
Report in the Transmittal Sheet to the Director, EP that a NOC is included in the NBT investigation case file. See Exhibit 4.72.18-7.
The NOC must include the following:
A description of the change
The reason for the change (cosmetic or business)
A statement that no other representation made in its original application has materially changed
Examples of changes include:
A name change
A change in Employer Identification Number (EIN). (The EIN is different from the EIN on the NBT’s application or the NBT’s NOA issued by EP R&A.)
An address change
An applicant who was approved to serve as a passive trustee is now accepting non-passive accounts
An applicant will start handling accounts that are not described in the NOA
An applicant has experienced an acquisition, merger, consolidation, or some other type of reorganization
4.72.18.3.5 (04-05-2016)
Post Interview
After interviewing the NBT, complete the NBT Investigation Checksheet / Workpaper by detailing, documenting, and commenting on your findings of each aspect in the IDR and interview questions. The NBT Investigation Checksheet/Workpaper replaces the Forms 5772/5773.
If needed, request and/or research for additional information to cross-reference information you receive from the NBT by using:
Number information narratives and documents the NBT submitted which aren’t included in the Checksheet/Workpaper. Reference them to the Checksheet/Workpaper.
4.72.18.4 (04-05-2016)
Closing Procedures
Notify the NBT by letter of the results of any investigation conducted on their continued qualification as an NBT.
If you don’t discover issues during the examination:
Prepare a favorable closing letter (see Exhibit 4.72.18-5) and enclose it in the investigation case file. Mandatory Review forwards the letter to the NBT after they review the case file.
Include this statement: "Based upon the results of the nonbank trustee/custodian investigation we recently conducted, we have determined that [NBT’s Name] is operating within the requirements applicable to nonbank trustees/custodians under Treas. Reg. 1.408-2(e) of the Income Tax Regulations."
If you discover minor problems (deficiencies) during the examination which don’t require revocation of the NOA:
Prepare a favorable closing letter that has an enclosure listing minor deficiencies that the NBT must correct. See Exhibit 4.72.18-6.
Enclose the closing letter and list of deficiencies in the investigation case file. Mandatory Review sends the letter to the NBT after they review the case file.
Include this statement:
"Based upon the results of the nonbank trustee/custodian investigation we recently conducted, we have determined that generally [ NBT’s NAME] is operating within the requirements applicable to nonbank trustees/custodians under section 1.408-2(e) of the regulations. However, we noted certain minor deficiencies. Enclosed is an explanation of the deficiencies that must be corrected."
The letter must also include the following:
A statement indicating the investigation is not an examination under section 7605(b) of the Internal Revenue Code.
The name and telephone number of a person to contact.
Signature/stamp of the Director, EP Examinations (or delegate).
Note:
Mandatory Review sends the letter to the NBT after they review the case.
Prepare the Nonbank Trustee Transmittal Sheet (see Exhibit 4.72.18-7) addressed to the Director, EP. Include in the Transmittal Sheet the following:
The NBT’s name
A statement that the NBT was investigated per to IRM 4.72.18
A recommendation as to whether the NBT should be issued a favorable closing letter (see Exhibit 4.72.18-5), a favorable closing letter listing minor deficiencies (see Exhibit 4.72.18-6), or a proposed revocation letter (EP R&A prepares the proposed revocation letter)
The rational for the recommendation
Any other relevant or pertinent information (such as "a NOC or a withdrawal request is included in the NBT investigation case file" )
Note:
Find the Nonbank Trustee Transmittal Sheet under the "JOBS" tab on the "Examination" link under Nonbank Trustees and Custodians.
4.72.18.4.1 (04-05-2016)
Case Closing Steps - "No Change" or "No Change with Deficiencies"
For "no change" or "no change with deficiencies," prepare a favorable closing letter from the template.
Stamp the closing letter with the Director, EP Examinations signature.
Don’t issue the closing letter.
Note:
Mandatory Review mails the closing letter after they review the case.
Print all information to send to Mandatory Review.
Case File Assembly (top to bottom):
Outside-front: Staple Form 10329 Transmittal Sheet-Related Cases to the outside-front of each case file.
Note:
List the case being investigated and all related cases.
Inside-right: Assemble on the inside-right of the paper case file:
1. Closing letter (if applicable)
2. Checksheet/workpapers/interview notes
3. Form 2848
4. Case chronology record (CCR)
5. Investigation correspondence between the IRS and the NBT, in chronological order (most recent on top)
6. All documents secured during the investigation, such as financial statements, auditors’ reports, net worth computations, fidelity bond, etc.
7. NBT application file
8. IDRS research
Close the case with one of the following disposal codes:
Use issue code 36z for all NBT cases, regardless of the disposal code.
Update the case to status 20 on RCCMS and AIMS.
Note:
All NBT cases are subject to mandatory review.
Mail the case file to Mandatory Review:
IRS - EP Mandatory Review
801 Broadway, Room 397
MDP 13
Nashville, TN 37203
Mandatory Review:
Mail the closing letter after you review the case file.
Fax a copy of the Form 5599, TE/GE Examined Closing Record, and request a closure in RCCMS/NMF AIMS to Examinations Special Support and Processing (ESSP) to notify them that the case is ready for closing. The ESSP fax number is (718)488-2332.
Ship the closed investigation case file to the following address for scanning and uploading to the NBT shared drive:
IRS EPCU TEGE – Employee Plans
Attn: Group Manager, EPCU MS 1113
324 25th St Rm 6025
Ogden, UT 84401-2344
4.72.18.4.2 (04-05-2016)
Case Closing Steps – Withdrawal of Notice of Approval Letter
If you determine that the NBT is no longer acting in the capacity of an NBT, secure a letter from the NBT explicitly stating this fact. Notify EP R&A of the withdrawal request so they can remove the NBT from the list of approved NBTs.
Agent/manager: send a copy of the letter from the NBT to IRS EP R&A, along with a Transmittal Sheet and other documents or correspondence you received from the NBT:
Internal Revenue Service
c/o Manager SE:T:EP:RA:T1
1111 Constitution Avenue, NW PE
Washington, DC 20224
Close the case disposal code 01 (RCCMS code 210) - Regulatory/Revenue Protection.
Use Issue Code 36z.
Close case to ESSP. These cases aren’t subject to mandatory review.
Fax a copy of the Form 5599, TE/GE Examined Closing Record, to ESSP to notify them that the case is ready for closing. ESSP's fax number is 718-488-2332.
Print the case file and ship it to the following address for scanning and uploading to the NBT shared drive:
IRS EPCU TEGE – Employee Plans
Attn: Group Manager, EPCU MS 1113
324 25th St Rm 6025
Ogden, UT 84401-2344
4.72.18.4.3 (04-05-2016)
Case Closing Steps – Proposed Revocation
If after you complete the investigation, you determine the NBT’s NOA letter should be revoked, send the case to EP R&A for second level review. Print all the case information for EP R&A.
Case File Assembly (top to bottom):
Outside-front:Staple Form 10329, Transmittal Sheet-Related Cases, to the outside-front of each paper case file.
Note:
List the case being investigated and all related cases.
Inside-right: Assemble the following items on the inside-right of the paper case file:
1. Checksheet/workpapers/interview notes
2. Form 2848
3. Case chronology record (CCR)
4. Investigation correspondence between the IRS and the NBT, in chronological order (most recent on top)
5. All documents secured during the investigation, such as financial statements, auditors’ reports, net worth computations, fidelity bond, etc.
6. NBT application file
7. IDRS research
Use disposal code 09 (RCCMS code 211) - proposed revocation to close the case.
Use issue code 36z.
Update the case on RCCMS/NMF AIMS to Status 38, Suspense, All Other.
Note:
Don’t close the case.
Send the entire case file to EP R&A via your group manager:
Internal Revenue Service
c/o Manager SE:T:EP:RA:T1
1111 Constitution Avenue, NW PE
Washington, DC 20224
EP R&A will:
Review the case file and follow procedures in 26 CFR 1.408-2(e)(7)(v) for revoking the NOA letter.
Sent the case to the group manager if you need to return it to the agent for further development.
Note:
Agent: If the case then results in a "no change" or "no change with deficiencies," follow the steps in IRM 4.72.18.4.1, Case Closing Steps - "No Change" or "No Change with Deficiencies."
Send a secure email to: the agent, the agent's group manager, and EP Classification informing them that the case can be closed from RCCMS and NMF AIMS after you review the file and send the revocation letter. Include the NBT disposition memo in the email.
Send the closed investigation case file to the following address for scanning and uploading to the NBT shared drive:
IRS EPCU TEGE – Employee Plans
Attn: Group Manager, EPCU MS 1113
324 25th St Rm 6025
Ogden, UT 84401-2344
The agent will:
Name the closing letter and the NBT Disposition Memo using the RCCMS Naming Convention and save them in the RCCMS Office Documents folder.
Fax a copy of the Form 5599, TE/GE Examined Closing Record, to ESSP to notify them that the case is ready for closing. ESSP's fax number is 718-488-2332.
4.72.18.4.4 (04-05-2016)
Case Closing Steps – Survey Before or After Assignment
If you’re assigned a case for investigation and you and your group manager determine that the case shouldn’t be investigated since there has been recent compliance activity involving the NBT, contact EP Classification and secure their concurrence to survey the case.
EP Classification may assign another NBT for investigation to replace the one that was surveyed.
Close the case using one of the following disposal codes:
Disposal code 31 (RCCMS code 910) – Survey Before Assignment
Disposal Code 32 (RCCMS code 908) – Survey After Assignment
Use issue code 36z for all NBT cases, regardless of the disposal code.
Complete Form 5596, TE/GE Non-Examined Closings and Form 1900, Income Tax Survey After Assignment per IRM 4.71.7, Survey Returns.
Fax a copy of the Form 5596 or Form 1900 to ESSP to notify them that the case is being closed through survey. ESSP's fax number is 718-488-2332.
Send the Transmittal Sheet, Form 1900 and any documents associated with the file to the following address for scanning and uploading to the NBT shared drive:
IRS EPCU TEGE – Employee Plans
Attn: Group Manager, EPCU MS 1113
324 25th St Rm 6025
Ogden, UT 84401-2344
4.72.18.4.5 (04-05-2016)
EPCU Scanning of Closed Investigation Files and Upload to NBT Shared Drive
When NBT Investigation cases are closed, the groups send printed copies of the entire case file to the EPCU Unit in Ogden, UT.
EPCU will:
Scan the entire case into an electronic format.
Upload the electronic case file to the NBT shared drive to a separate folder for that NBT that includes all its historical documents.
Enter the NBT investigations closing date on the NBT inventory tracking system.
4.72.18.5 (04-05-2016)
Recertification
Each year, October 1 through December 31, the EPCU contacts each approved NBT that was not selected for investigation during that year and certifies that the NBT wishes to retain its NOA letter.
EPCU issues a letter on or about October 1 to all NBTs that were not selected for investigation during that year.
The letter should request the NBT to:
Verify it wants to retain its NOA
Verify the NBT’s current address
Identify the names of individuals and/or points of contact for the NBT to whom we can send future correspondence
The following table provides actions the EPCU should take based on the NTB’s response to the letter.
4.72.18.5.1 (04-05-2016)
NTB Status Changes - Coordination Between EP Rulings & Agreements (R&A) and Employee Plans Compliance Unit (EPCU)
If the NBT indicates that they no longer operate as an NBT, the EPCU will:
Secure a written statement from the NBT specifically stating this.
Update the NBT database to reflect the change.
Scan the EPCU case file, including the statement from the NBT, and uploads these documents to the shared NBT drive.
Send the letter from the NBT to R&A.
R&A will:
Remove the NBT from the published list.
Send a letter to the NBT confirming that they’re no longer operating as an NBT and that they’re removed from the list of approved NBT’s.
If the NBT indicates that there’s a major change to the NBT (e.g., NBT changed its organization structure from corporation to partnership), the EPCU will:
Secure written statement from the NBT specifically stating this.
Update the NBT database to reflect the change.
Scan the EPCU case file, including the statement from the NBT, and uploads these documents to the shared NBT drive.
Send the letter from the NBT to R &A.
R&A will:
Update the published list and determines if any additional information or actions are necessary.
Send a letter to the NBT acknowledging the change
If the NBT indicates that there’s minor changes to the entity information (e.g., address change or change in the name of the point of contact), the EPCU will:
Secure a written statement from the NBT specifically stating the nature of the change.
Update the NBT database to reflect the change.
Scan the EPCU case file, including the statement from the NBT, and upload these documents to the shared NBT drive.
Send the letter from the NBT to R&A.
R&A will:
Update the published list and determines if any additional information or actions are necessary.
Send a letter to the NBT acknowledging the change.
If R&A determines that any changes in IRM 4.72.18.5.1 (1), IRM 4.72.18.5.1 (3),IRM 4.72.18.5.1 (5) above are different than initially provided, they’ll:
Update the NBT database to reflect the change.
Scan the case file, including the statement from the NBT, and upload these documents to the shared NBT drive.
4.72.18.6 (04-05-2016)
Abbreviated Compliance Checks
Instead of a doing a complete NBT investigation, EP Exam (coordinated by EPCU) may conduct a short check for compliance with the NBT regulations at 26 CFR 1.408-2(e). EPCU, through a compliance check, sends a short questionnaire to select NBTs for the following key items in the regulations that they evaluate to determine if a full NBT investigation is needed:
Continuity
Capacity to Account
Bonding
Adequacy of Net Worth
Court Action/Bankruptcy
Passive or Non-Passive (Active)
Exhibit 4.72.18-1
Sample Appointment Letter
Sample Appointment Letter
NOTE: Use Letterhead
As a Non-bank trustee, you have been selected for an investigation to test compliance with the requirements of Treas. Reg. 1.408-2(e)(2) through 1.408-2(e)(5)(viii)(F). To help make the investigation as brief as possible, please have the items available that I have requested at the end of this letter.
If you have any questions or cannot keep the scheduled appointment, please contact me at the telephone number shown above.
Thank you for your cooperation.
Exhibit 4.72.18-2
Sample Information Document Request
Sample Information Document Request
Please have the following items available for inspection:
(1) A list of owners with their percentage of ownership.
(2) The Corporate Charter and Articles of Incorporation.
(3) The by-laws, operating procedures, or some other document containing the rules of fiduciary conduct.
(4) A copy of the Organizational Chart.
(5) A copy of the fidelity bond (or some other type of insurance) for all employees handling fiduciary accounts.
(6) Provide your adequacy of net worth calculations as of the end of the most recent taxable year for purposes of Treas. Reg. 1.408-2(e)(5)(ii)(B) and (C) or (D), if applicable.
Make sure the valuation date being used is specified in the calculation and ties to the supporting documentation.
Provide documentation to support:
1. The valuation report of the fiduciary accounts.
2. The value of all other accounts.
3. The audited financial statements that were prepared in accordance with Generally Accepted Accounting Principles (GAAP), which include the auditor's comments. Please tie the net worth used in the calculation back to the net worth reflected in these financial statements.
7. Provide:
The audit of your fiduciary books and records as required by Treas. Reg. 1.408-2(e)(5)(iii)(A) or (B).
If applicable, a copy of your Sarbanes-Oxley compliance report.
8. The report/records generated under Treas. Reg. 1.408-2(e)(5)(iii)(C) relating to the audit required by Treas. Reg. 1.408-2(e)(5)(iii)(A) or (B) together with the action taken thereon.
9. Be prepared to provide a sample of the reports required by Treas. Regs. 1.408-5, 1.408-6, and 1.408-7, dealing with annual reports by trustees, disclosure statements, and reports on distributions, respectively, issued to fiduciary account owners during the most recent tax year.
10. A copy of the aging report of accounts payable as of the latest period available.
11. Personnel folders of the employees specified in the next item below handling the fiduciary accounts.
12. Please arrange separate meetings (one immediately after the other) at the time of the on-site meeting, with:
The head of the Trust Department and the supervisor/manager of the trust personnel to gain an understanding of the internal controls and the systems utilized for accounting for the assets of the fiduciary accounts. The meeting should not take longer than two hours.
A few (not more than 7) randomly selected employees who handle the fiduciary accounts to verify that the controls are working and to gain an understanding of their experience with handling fiduciary accounts.
Exhibit 4.72.18-3
Disclosure Statement
All submissions by an NBT and information gathered by the Service during an NBT investigation are subject to requests under the Freedom of Information Act (FOIA). The FOIA, however, does not require the IRS to release all documents that are subject to FOIA requests. The IRS may withhold information pursuant to nine exemptions and three exclusions contained in the FOIA statute.
The two most likely FOIA exemptions potentially applicable to information contained in NBT investigation files are FOIA exemptions (b)(3) and (b)(4). 5 USC sections 552(b)(3) and (b)(4).
FOIA exemption (b)((3) requires agencies to withhold information specifically exempted from disclosure by statue Section 6103 of the Internal Revenue Code specifically exempts from disclosure returns and return information and may be employed with FOIA exemption (b)(3) to withhold such information otherwise responsive to a FOIA request.
FOIA exemption (b)(4) protects from disclosure commercial or financial information obtained from a person and privileged or confidential information. Courts have interpreted this exemption to mean that commercial and financial information other than trade secrets can be withheld from disclosure only if it meets the following criteria: it must be privileged or confidential, and it must be obtained from a person by the government. Information has been found by the courts to be confidential if its disclosure would be likely to: (1) impair the government's ability to obtain similar information in the future, or (2) harm the competitive position of the person who supplied it. In response to a FOIA request, the Service will make deletions pursuant to FOIA exemption (b)(3) in connection with section 6103 of the Code and FOIA subsection (b)(4) before information is made available to the public in order to protect the confidentiality of return information and the privacy of privileged or confidential information of the NBT as appropriate. To help the Service make the necessary deletions of privileged or confidential information under FOIA exemption (b)(4), the NBT must provide during the investigation a statement indicating the deletions desired (deletions statement). An NBT who wants only names, addresses, and identifying numbers deleted should state this in the deletions statement. An NBT who wants more information deleted must provide a copy of its submissions and supporting documents on which the NBT has placed brackets around the material to be deleted.
The deletions statement must not appear within the material submitted by the NBT. Instead, the deletions statement is to be made in a separate document that is signed and dated by the NBT or the NBT’s authorized representative. A stamped signature or faxed signature is not permitted.
The NBT should follow this same process to propose deletions from any additional information submitted after the initial deletions request. An additional deletions statement is not required with each submission of additional information if the NBT's initial deletions statement requests that only names, addresses, and identifying numbers are to be deleted and the NBT wants only the same information deleted from the additional information.
Exhibit 4.72.18-4
Sample Interview Questions
Sample Interview Questions
Nonbank Trustee (NBT) Investigations Interview Questions
History-Interview Questions:
Ask to take a tour of the Trust Department/Area.
Conduct first interview with the Head of Trust Department or the Supervisor of Trust personnel to gain an understanding of the internal controls and the systems utilized for accounting for the assets of the fiduciary accounts. The meeting should not take longer than two hours. Then, interview several trust department employees (see last two items of IDR).
Part I - Ownership
(Workpaper Part II A 1 Continuity) (Item 1 of IDR)
1. Describe the ownership of the NBT.
a. Is it publicly traded?
□ Yes □ No
b. Does it have a parent that is publicly traded?
□ Yes □ No
c. Does any owner (stockholder/partner) own more than 20% of the NBT?
□ Yes (see below) □ No
If the answer to 1c is "yes" then,
(i) What are the owner’s names and ownership percentages?
(ii) Do those owners, who own more than 20%, own more than 50% in the aggregate?
□ Yes (see below) □ No
Part II — Trust Personnel
(Workpaper Part II A 3— Fiduciary Expertise, Part II A 4 B - Capacity to Account, 4 C —Fitness to handle funds) (Item 4 & 11 on IDR)
1. What are the names of the Trust Department employees?
2. How many years have they been with the NBT?
3. How many years have they been in this field?
4. What are their job responsibilities?
Who directs and monitors actions of employees?
Who maintains records for federal tax purposes?
Who prepares 1099s?
Who prepares 5498 statements?
Who calculates net worth requirements?
Who performs calculations of income?
Who prepares the distributions?
Who issues certificates of ownership?
Part Ill — Trust (and other business) Operations
1. What are the NBT’s normal business hours?
(Workpaper Part II A 2— Established Location)
2. What type of fiduciary accounts does the NBT hold:
(Workpaper Part I C - Types of Accounts)
3. a. How many fiduciary accounts does the NBT maintain?
(Workpaper Part II A 4 B — Capacity to Account)
b. What is their aggregate value?
4. a. Is investment advice given by the NBT or any related entity?
□ Yes (see below) □ No
b. If "yes" , how often?
c. Does the NBT consider its self a passive or non-passive NBT?
(Workpaper Part II A 4 C —Fitness to Handle Funds)
□ Passive □ Non-passive
5. a. What other types of accounts are maintained?
(Workpaper Part II A 4 C — Fitness to Handle Funds)
b. How many of these other types of accounts are maintained?
c. What is their aggregate value?
6. If fiduciary and non-fiduciary accounts are maintained:
a. Is a separate trust division with separate personnel and facilities maintained?
□ Yes □ No (see below)
b. If not, does the trust department maintain a separate identity? Please describe. (Workpaper Part II A 4 D 1 (f))
c. Does the NBT keep separate and distinct records for fiduciary accounts? Please describe. (Workpaper Part II A 4 D 7 (a))
□ Yes □ No
d. How long are those records maintained?
(Workpaper Part II A 4 D 7 (a))
7. a. Are separate investment accounts maintained for each account holder?
(Workpaper Part II A 4 D 5 (a))
□ Yes □ No
b. Does the NBT have pooled investment accounts?
(If yes, contact National Office for guidance.)
□ Yes □ No
8. Describe how accounts are handled from inception to closure:
a. Who is responsible for receiving investment funds when a new account is opened and how is this done?
b. What is the time lag between receipt of new monies and their investment?
(Workpaper Part II A 4 D 4)
c. What type of documentation is given to the new account holder?
(Workpaper Part II A 4 D 1 b)
i. When a new fiduciary account is established does the NBT provide the individual with a copy of their Notice of Approval?
(Workpaper - Other Regulations - 10 Miscellaneous)
□ Yes □ No
d. How are buy/sell orders executed?
i. What type of documentation is generated?
e. How does a customer initiate account closure?
i. What is the time frame between request for funds and actual disbursement of fund?
ii. What type of documentation is given when the account is closed out? (Workpaper Part II A 4 D 1 b) & (Workpaper Part II A 4 D 4)
f. Aside from servicing accounts, what other services/products are available through the NBT? (Workpaper Part II A 3 Fiduciary Experience, Part II A 4 B Capacity to Account, Part II A 4 C Fitness to handle funds)
Part IV — Miscellaneous Business Operations
1. a. Is the NBT the subject of any ongoing litigation?
□ Yes (see below) □ No
b. If so, please explain the matter. (Workpaper Part II A 4 D 7)
2. a. Does the NBT employ or retain legal counsel versed in fiduciary matters? (Workpaper Part II A 4 D 1 e)
□ Yes □ No
b. Who are they (name of firm or individual)?
c. Are they in-house or on retainer?
□ In-House □ On Retainer
3 a. Are employees bonded?
(Workpaper Part II A 4 D 1 d)
□ Yes □ No
b. If so, which employees?
4. Is there a safe or vault to keep assets?
□ Yes □ No
5. Is there a permanent record of assets going into and out of the safe/vault?
(Workpaper Part II A 4 D 5 b)
□ Yes □ No
Part V - Accounting and Auditing.
1. How often are Trust assets evaluated for performance objective?
(Workpaper Part II A 4 D 1 c)
2. a. How often are Trust assets valued?
b. What were the last two valuation dates?
c. How is FMV determined?
(Workpaper Part II A 4 D 2 d)
d. How often are audits of fiduciary assets conducted?
e. What were the dates of the last two audits?
(Workpaper Part II A 4 D 3 a (1)-(3) & c)
f. Who performs the audit?
g. How is the audit used?
h. Who reviews the audit?
i. Are the audit recommendations followed?
□ Yes □ No
j. Where are these actions documented?
3. a. Is the NBT regulated by either a State or Federal Agency?
(Workpaper Part II A 4 D 3 b)
□ Yes (see below) □ No
b. If "yes," does the Agency require periodic examinations of the audit systems (if "yes" obtain copy)
c. If "yes," does this supersede the certified audit requirement?
Exhibit 4.72.18-5
Sample Favorable Closing Letter
Sample Favorable Closing Letter
NOTE: Use Letterhead
Dear Sir or Madam:
On [insert date], you were issued a Notice of Approval authorizing [insert name of NBT] to act as a nonbank custodian of plans qualified under section 401 of the Internal Revenue Code, as a custodian of custodial accounts described in section 403(b)(7), and as a nonbank trustee or custodian for IRAs established under section 408. In the Notice of Approval, you were advised that continued approval would be contingent upon the continued satisfaction of the criteria set forth in section 1.408-2(e) of the Income Tax Regulations (regulations).
Based upon the results of the nonbank trustee/custodian investigation we recently conducted, we have determined that generally, [insert name of NBT] is operating within the requirements applicable to nonbank trustee/custodian under Treas. Reg. 1.408-2(e).
This investigation was not an examination under section 7605(b).
If you have any questions regarding these findings, please contact the individual listed above.
Exhibit 4.72.18-6
Sample Favorable Closing Letter with Deficiencies
Sample Favorable Closing Letter with Deficiencies
NOTE: Use Letterhead
Dear Sir or Madam:
On [insert date], you were issued a Notice of Approval authorizing [insert name of NBT] to act as a nonbank custodian of plans qualified under section 401 of the Internal Revenue Code, as a custodian of custodial accounts described in section 403(b)(7), and as a nonbank trustee or custodian for IRAs established under section 408. In the Notice of Approval, you were advised that continued approval would be contingent upon the continued satisfaction of the criteria set forth in Treas. Reg. 1.408-2(e).
Based upon the results of the nonbank trustee/custodian investigation we recently conducted, we have determined that generally, [insert name of NBT] is operating within the requirements applicable to nonbank trustee/custodian under Treas. Reg. 1.408-2(e). However, certain minor deficiencies were noted. Enclosed is an explanation of the deficiencies and the corrective action.
This investigation was not an examination under IRC 7605(b).
If you have any questions regarding these findings, please contact the individual listed above.
1. Treas. Reg. 1.408-2(e)(5) provides that the [nonbank trustee] applicant must demonstrate that the rules of fiduciary conduct specified in Treas. Reg. 1.408-2(e)(5)(i) through (viii) are incorporated in operating procedures, by-laws, or some other document that controls the applicant’s activities. Compliance with this requirement can be demonstrated by the following:
Compliance with this requirement may be demonstrated by a resolution of the NBT’s board of directors (or its equivalent) adopting the rules of fiduciary conduct and a copy of the document or the appropriate section of the document that contains the rules of fiduciary conduct as adopted by the board of directors. The rules of fiduciary conduct may not be incorporated by reference.
In lieu of the above demonstrations, the NBT may provide evidence it is operating under applicable statutory requirements either under state or federal law, which mirror the rules of fiduciary conduct.
During the application process, you submitted evidence that such a document exists. However, during the nonbank trustee investigation for continued compliance, you were not able to show evidence that such a document containing the language found at I.408-2(e)(5)(i) through 1.408-2(e)(5)(viii)(F) exists. The absence of this document is a violation of section I.408-2(e)(5). Therefore, please see to it that such a document comes into existence before you are selected for another investigation for continued compliance.
2. Section I.408-2(e)(5)(i)(B) provides that all employees taking part in the performance of the applicant’s fiduciary duties will be adequately bonded. The Bond you submitted during the investigation does not name (insert name of NBT) (the approved nonbank trustee under investigation) as an insured. In addition, there is no evidence in the investigation case file that you have hire-fire power over the employees of the named insured on the bond you submitted during the investigation. Therefore, it appears that, section I.408-2(e)(5)(i)(B) is not currently satisfied.
3. There are statements from you in the investigation case file that (insert name of NBT) (the approved nonbank trustee) was a participant in a merger. Therefore, it is understandable that there may have been a name change, change in employer identification number, or the end of the existence of (insert name of NBT) in favor of the surviving entity of the merger who has not demonstrated to the service that it meets the nonbank trustee requirements.
Paragraph two on page three of your notice of approval (best available copy available enclosed) to serve as a nonbank custodian provides:
"This approval letter is not transferable to any other entity. An entity that is a member of a controlled group of corporations, within the meaning of section 1563(a) of the Code, may not rely on an approval letter issued to another member of the same controlled group. Furthermore, any entity that goes through an acquisition, merger, consolidation or other type of reorganization may not necessarily be able to rely on the approval letter issued to such entity prior to the acquisition, merger, consolidation, or other type of reorganization. Such entity may have to apply for a new notice of approval in accordance with Treas. Reg. 1.408-2(e)."
The first full paragraph on page three of your notice of approval to serve as a nonbank custodian provides that (insert name of NBT) is required to notify the Commissioner of Internal Revenue in writing of any changes which affects the continuing accuracy of any representations made in its application.” [Section 1.408-2(e)(6)(iv) of the regulations]
4. Section 1.408-2(e)(7)(iii) of the regulations provides that the [NBT] applicant must not accept a fiduciary account until after the plan administrator or the person for whose benefit the account is to be established is furnished with a copy of the written notice of approval issued to the applicant.
Based on items 1, 2, 3, and 4 above, it appears that you may have violated sections 1.408-2(e)(5), I.408-2(e)(5)(i)(B), I.408-2(e)(6)(iv), and I. 408-2(e)(7)(iii) of the regulations. You now have the opportunity to ensure that you are in compliance with these nonbank trustee requirements.
Note:
The "List of Deficiencies" is only a sample. The actually deficiencies found during the investigation should be noted. If the deficiencies were corrected during the investigation, the correction should be noted as well.
Exhibit 4.72.18-7
Nonbank Trustee Transmittal Sheet
Nonbank Trustee Transmittal Sheet
Complete this form at the conclusion of the investigation. It is used to provide a synopsis of the results of the investigation.
Nonbank Trustee Entity Information
Rationale for the Conclusion
Briefly explain your conclusion, key findings or issues and the rationale. Other Issues or Concerns
Briefly explain any issues or concerns that should be brought to the attention of EP Rulings & Agreements
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