For 12 years, Stan Gabriel (not his real name) has sold big-ticket equipment to waste collection and processing companies. In that time, his commissions have steadily grown, and he has accumulated retirement savings in mutual funds through 401(k) plans.
During his time in the equipment business, Gabriel has had three different employers who each offered 401(k) programs. Gabriel dutifully worked for years at the same desk, finding and minding customers but making no waves. All of a sudden, he's become an activist: He wants a say-so on his retirement funds.
Gabriel is frustrated by the fact that his 401(k) account is not owned or controlled by his current employer. Rather, a former owner has legal custody of the accounts. As a result, Gabriel cannot manage his own money.
Gabriel wants to combine all of his retirement funds, including the accounts from previous employers. He believes that his current employer's 401(k) plan can generate a better return than what he can expect with the old plans.
He simply is asking for nothing more than the result Congress intended when it created the 401(k) program: an opportunity for workers to take responsibility for their financial future.
As buy-outs and mergers transform all segments of corporate America, including the waste industry, employees can lose control of their retirement accounts after their company changes hands, even though their employment is unaffected.
Gabriel and other employees are victims of an Internal Revenue Service regulation aimed at preventing workers from withdrawing their retirement assets before they leave their jobs or retire. The so-called "same-desk rule" blocks distributions of 401(k) assets to workers who don't change their work station, and involuntarily links them to one or more former employers.
"I get calls from [retirement plan] participants, and they're just screaming at me," says David Wray with the Chicago-based Profit Sharing/401(k) Council of America. "'The company won't give me my money. They're cheating me out of my money.'"
Some employers are sympathetic. "It's a stupid law that never should have been enacted," says a plan director of a large retail firm. "Another attempt by do-gooders in Congress to protect the average citizen from himself," he adds. Nevertheless, his company won't release any accounts because the tax status of its entire 401(k) program would be threatened.
"They tell me they can't give me my funds because I'm still marked as an employee," says someone whose work unit was formerly owned by that retail firm. "If I'm an employee, give me my discount back."
Experts say the same-desk rule emerged in response to abuses made by small-employer pension funds. "The world has changed dramatically since that time. For one thing, it's much easier to roll over your money," Wray says.
Congress passed a tax bill last year that eliminated the same-desk rule, but when President Clinton vetoed the bill, the repeal vanished.
The solution seems simple enough: the IRS could change its rule. But now that a legislative measure has been introduced again in Congress, the IRS won't address the issue. "It will not be fixed until it's clear the legislation is dead," Wray says. The tax agency sees the matter differently.
"This isn't one of those things where we can interpret our way out of this mess," says IRS official Robert Masnik. "There are bills pending in Congress. That's where the relief is. It's not us."
Overwhelming Congressional support for the rule's elimination virtually guarantees that the repeal will not be enacted as a separate bill. Popular bills tend to draw contentious amendments sponsored by members who use a non controversial bill to shield a disliked measure.
To illustrate the needless risk to all concerned: Who is most likely to sue a retirement fund for a bad investment decision? Someone who never wanted to keep his money there.