The Internal Revenue Service has released guidance providing relief from certain excise taxes under Section 4975 of the IRS Code and any related reporting requirements to conform to the temporary enforcement policy issued by the Department of Labor regarding its fiduciary rule.

Unless an exemption is satisfied, advisors who engage in prohibited transactions face an excise tax of 15% of the “amount involved,” rising to 100% if the transactions aren’t corrected within certain time frames.

“The problem is that the DOL non-enforcement policy isn’t actually an exemption,” Joshua Waldbeser, an attorney with Drinker, Biddle and Reath, told ThinkAdvisor in an email Tuesday. “So the IRS policy is designed to keep the tax from applying where the DOL’s non-enforcement policy would apply.  It fills an important void that the DOL policy alone cannot.”

Labor released its Field Assistance Bulletin 2017-01 on March 13, explaining that while Labor expects the final regulation delaying the applicability date of its fiduciary rule from April 10 to June 9 to be effective before April 10, if Labor fails to meet that deadline, it plans to help fiduciary advisors avoid problems because of the delay.

The IRS noted in its guidance that the Treasury Department and IRS have determined that it is appropriate to adopt a temporary excise tax non-applicability policy that conforms with the Labor’s temporary enforcement policy described in FAB 2017-01.

Accordingly, “the IRS will not apply Section 4975 and related reporting obligations with respect to any transaction or agreement to which the DOL’s temporary enforcement policy, or other subsequent related enforcement guidance, would apply.”

As explained in the IRS notice, the fiduciary rule’s prohibited transaction exemptions “would allow, subject to appropriate safeguards, certain broker-dealers, insurance agents, and others that act as investment advice fiduciaries, as defined under the final rule, to continue to receive a variety of forms of compensation that would otherwise violate prohibited transaction rules, triggering excise taxes and civil liability.”

FAB 2017-1 “only applies to DOL enforcement,” Waldbeser said. “So the industry remained concerned that financial institutions could still be liable for excise taxes on prohibited transactions – which is an IRS issue – even where the DOL itself wouldn’t take enforcement action.”

The IRS announcement provides that “no excise taxes will attach where the DOL non-enforcement policy would apply,” Waldbeser explained. “In other words, it’s meant to sync up the IRS’ enforcement of the excise tax rules on prohibited transactions with the DOL’s non-enforcement policy,” which he characterized as “a very important piece of relief.”

For instance, consider advice to IRAs, Waldbeser said. “Here, the DOL doesn’t even have enforcement powers, and the excise taxes are the main ‘penalty’ for advisors and institutions who influence their compensation through their recommendations, without satisfying a prohibited transaction exemption. In the IRA space then, this announcement from the IRS is technically more important than the DOL non-enforcement policy it mirrors.”

R. Alexander Acosta, President Donald Trump’s nominee to be Labor secretary, told the Senate Health, Education, Labor & Pensions Committee on March 22 that, if confirmed, he would follow the president’s Feb. 3 executive order directing Labor to review its fiduciary rule.

Article Published by ThinkAdvisor March 28 2015