5 U.S.C. § 8439 — Accounting and information

Page 1164 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8439 rector (as that term is defined under section 8401(13) of title 5, United States Code) shall develop and issue guidance implementing the requirements of this Act [see section 1 of Pub. L. 113–255, set out as a Short Title of 2014 Amendment note under section 101 of this title].’’ [Guidance issued in the form of a final rule published Aug. 28, 2015, effective Sept. 5, 2015, see 80 F.R. 52173.] REMOVAL OF INVESTMENT RESTRICTIONS Pub. L. 101–335, § 3(b)(4), July 17, 1990, 104 Stat. 320, provided that: ‘‘Any other provision of law, in effect on the date of enactment of this Act [July 17, 1990], which provides that any amounts contributed to the Thrift Savings Fund, or earnings thereon, may be invested or reinvested only in the Government Securities Invest- ment Fund established under section 8438(b)(1)(A) of title 5, United States Code, shall cease to be effective.’’ § 8439. Accounting and information (a)(1) The Executive Director shall establish and maintain an account for each individual who makes contributions or for whom contribu- tions are made under section 8432 of this title or who makes contributions to the Thrift Savings Fund. (2) The balance in an individual’s account at any time is the excess of— (A) the sum of— (i) all contributions made to the Thrift Savings Fund by the individual; (ii) all contributions made to such Fund for the benefit of the individual; and (iii) the total amount of the allocations made to and reductions made in the account pursuant to paragraph (3), over (B) the amounts paid out of the Thrift Sav- ings Fund with respect to such individual under this subchapter. (3) Pursuant to regulations prescribed by the Executive Director, the Executive Director shall allocate to each account an amount equal to a pro rata share of the net earnings and net losses from each investment of sums in the Thrift Sav- ings Fund attributable to sums credited to such account, reduced by an appropriate share of the administrative expenses paid out of the net earnings under section 8437(d) of this title, as de- termined by the Executive Director. (b)(1) For the purposes of this subsection, the term ‘‘qualified public accountant’’ shall have the same meaning as provided in section 103(a)(3)(D) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1023(a)(3)(D)). (2) The Executive Director shall annually en- gage, on behalf of all individuals for whom an account is maintained, an independent qualified public accountant, who shall conduct an exam- ination of all accounts and other books and records maintained in the administration of this subchapter and subchapter VII as the public ac- countant considers necessary to enable the pub- lic accountant to make the determination re- quired by paragraph (3). The examination shall be conducted in accordance with generally ac- cepted auditing standards and shall involve such tests of the accounts, books, and records as the public accountant considers necessary. (3) The public accountant conducting an exam- ination under paragraph (2) shall determine whether the accounts, books, and records re- ferred to in such paragraph have been main- tained in conformity with generally accepted ac- counting principles applied on a basis consistent with the manner in which such principles were applied during the examination conducted under such paragraph during the preceding year. The public accountant shall transmit to the Board a report on his examination, including his deter- mination under this paragraph. (4) In making a determination under para- graph (3), a public accountant may rely on the correctness of any actuarial matter certified by an enrolled actuary if the public accountant states his reliance in the report transmitted to the Board under such paragraph. (c)(1) The Board shall prescribe regulations under which each individual for whom an ac- count is maintained shall be furnished with— (A) a periodic statement relating to the indi- vidual’s account; and (B) a summary description of the investment options under section 8438 of this title cov- ering, and an evaluation of, each such option the 5-year period preceding the date as of which such evaluation is made. (2) Information under this subsection shall be provided on a regular basis, and in a manner de- signed to facilitate informed decisionmaking with respect to elections under sections 8432 and 8438 of this title. Nothing in this paragraph shall be considered to limit the dissemination of in- formation only to the times required under the preceding sentence. (d)(1) Each employee, Member, former em- ployee, or former Member who elects to invest in any investment fund or option under this chapter, other than the Government Securities Investment Fund, shall sign an acknowledge- ment prescribed by the Executive Director which states that the employee, Member, former employee, or former Member understands that an investment in any such fund or option is made at the employee’s, Member’s, former em- ployee’s, or former Member’s risk, that the em- ployee, Member, former employee, or former Member is not protected by the Government against any loss on such investment, and that a return on such investment is not guaranteed by the Government. (2) Prior to enrollment in the Thrift Savings Fund, or as soon as practicable thereafter, an in- dividual who is automatically enrolled pursuant to section 8432(b)(2) shall receive the risk ac- knowledgment information described under paragraph (1). (Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 555; amended Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title I, § 103]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–373; Pub. L. 104–316, title I, § 103(j), Oct. 19, 1996, 110 Stat. 3829; Pub. L. 106–65, div. A, title VI, § 661(a)(5), Oct. 5, 1999, 113 Stat. 672; Pub. L. 106–361, § 2(b)(4), (5), Oct. 27, 2000, 114 Stat. 1401; Pub. L. 108–469, § 1(d)(3), Dec. 21, 2004, 118 Stat. 3892; Pub. L. 111–31, div. B, title I, § 106(a), June 22, 2009, 123 Stat. 1855; Pub. L. 113–255, § 2(b), Dec. 18, 2014, 128 Stat. 2920.) Editorial Notes AMENDMENTS 2014—Subsec. (d). Pub. L. 113–255 designated existing provisions as par. (1) and added par. (2). Page 1165 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8440 2009—Subsec. (d). Pub. L. 111–31, § 106(a)(2), sub- stituted ‘‘any such fund or option’’ for ‘‘either such Fund’’. Pub. L. 111–31, § 106(a)(1), which directed substitution of ‘‘any investment fund or option under this chapter, other than the Government Securities Investment Fund,’’ for ‘‘the matter after ‘who elects to invest in’ and before ‘shall sign an acknowledgment’ ’’, was exe- cuted by making the substitution for ‘‘the Common Stock Index Investment Fund, the Fixed Income In- vestment Fund, the International Stock Index Invest- ment Fund, or the Small Capitalization Stock Index In- vestment Fund, defined in paragraphs (1), (3), (5), and (10), respectively, of section 8438(a) of this title’’, before ‘‘shall sign an acknowledgement’’, to reflect the prob- able intent of Congress. 2004—Subsec. (c)(2). Pub. L. 108–469 substituted ‘‘on a regular basis’’ for ‘‘at least 30 calendar days before the beginning of each election period under section 8432(b)(1)(A) of this title’’. 2000—Subsec. (a)(1). Pub. L. 106–361, § 2(b)(4), inserted ‘‘who makes contributions or’’ after ‘‘for each indi- vidual’’ and substituted ‘‘section 8432’’ for ‘‘section 8432(c)(1)’’. Subsec. (c)(2). Pub. L. 106–361, § 2(b)(5), inserted at end ‘‘Nothing in this paragraph shall be considered to limit the dissemination of information only to the times re- quired under the preceding sentence.’’ 1999—Subsec. (a)(1). Pub. L. 106–65, § 661(a)(5)(A), in so far as it directed amendment of par. (1) by striking out ‘‘under section 8432(c)(1) of this title’’, could not be exe- cuted because the words ‘‘under section 8432(c)(1) of this title’’ did not appear subsequent to amendment by Pub. L. 106–361, § 2(b)(4). See 2000 Amendment note above. Pub. L. 106–65, § 661(a)(5)(A), struck out ‘‘under sec- tion 8351 of this title’’ after ‘‘Thrift Savings Fund’’. Subsec. (a)(2)(A)(i). Pub. L. 106–65, § 661(a)(5)(B), struck out ‘‘under section 8432(a) or 8351 of this title’’ after ‘‘individual’’. Subsec. (a)(2)(A)(ii). Pub. L. 106–65, § 661(a)(5)(C), struck out ‘‘under section 8432(c) of this title’’ after ‘‘individual’’. 1996—Subsec. (b)(3). Pub. L. 104–316 struck out ‘‘and the Comptroller General of the United States’’ after ‘‘to the Board’’. Subsec. (d). Pub. L. 104–208 substituted ‘‘Each em- ployee, Member, former employee, or former Member who elects to invest in the Common Stock Index In- vestment Fund, the Fixed Income Investment Fund, the International Stock Index Investment Fund, or the Small Capitalization Stock Index Investment Fund, de- fined in paragraphs (1), (3), (5), and (10),’’ for ‘‘Each em- ployee, Member, former employee, or former Member who elects to invest in the Common Stock Index In- vestment Fund or the Fixed Income Investment Fund described in paragraphs (1) and (3),’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2014 AMENDMENT Amendment by Pub. L. 113–255 effective on the date that the Executive Director issues guidance under sec- tion 2(d) Pub. L. 113–255, set out as a Guidance note under section 8438 of this title [guidance published Aug. 28, 2015, effective Sept. 5, 2015], and applicable to indi- viduals enrolled in the Thrift Savings Plan on or after such date, see section 2(e) of Pub. L. 113–255, set out as a note under section 8438 of this title. EFFECTIVE DATE OF 2000 AMENDMENT Amendment by Pub. L. 106–361 effective at the ear- liest practicable date after Sept. 30, 2000, as determined by the Executive Director in regulations, see section 2(c)(1) of Pub. L. 106–361, set out as a note under section 8432 of this title. EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–65 effective 180 days after Oct. 30, 2000, unless postponed, see section 663 of Pub. L. 106–65, as amended, set out as an Effective Date note under section 8440e of this title. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–208 effective Sept. 30, 1996, with provisions for certain funds to be offered for in- vestment at earliest practicable election period, see section 101(f) [title VI, § 659 [title I, § 104]] of Pub. L. 104–208, set out as a note under section 8438 of this title. REPORTING REQUIREMENTS Pub. L. 111–31, div. B, title I, § 105, June 22, 2009, 123 Stat. 1855, provided that: ‘‘(a) ANNUAL REPORT.—The Board shall, not later than June 30 of each year, submit to Congress an an- nual report on the operations of the Thrift Savings Plan. Such report shall include, for the prior calendar year, information on the number of participants as of the last day of such prior calendar year, the median balance in participants’ accounts as of such last day, demographic information on participants, the percent- age allocation of amounts among investment funds or options, the status of the development and implemen- tation of the mutual fund window, the diversity demo- graphics of any company, investment adviser, or other entity retained to invest and manage the assets of the Thrift Savings Fund, and such other information as the Board considers appropriate. A copy of each annual re- port under this subsection shall be made available to the public through an Internet website. ‘‘(b) REPORTING OF FEES AND OTHER INFORMATION.— ‘‘(1) IN GENERAL.—The Board shall include in the periodic statements provided to participants under section 8439(c) of title 5, United States Code, the amount of the investment management fees, adminis- trative expenses, and any other fees or expenses paid with respect to each investment fund and option under the Thrift Savings Plan. Any such statement shall also provide a statement notifying participants as to how they may access the annual report de- scribed in subsection (a), as well as any other infor- mation concerning the Thrift Savings Plan that might be useful. ‘‘(2) USE OF ESTIMATES.—For purposes of providing the information required under this subsection, the Board may provide a reasonable and representative estimate of any fees or expenses described in para- graph (1) and shall indicate any such estimate as being such an estimate. Any such estimate shall be based on the previous year’s experience. ‘‘(c) DEFINITIONS.—For purposes of this section— ‘‘(1) the term ‘Board’ has the meaning given such term by 8401(5) of title 5, United States Code; ‘‘(2) the term ‘participant’ has the meaning given such term by section 8471(3) of title 5, United States Code; and ‘‘(3) the term ‘account’ means an account estab- lished under section 8439 of title 5, United States Code.’’ § 8440. Tax treatment of the Thrift Savings Fund (a) For purposes of the Internal Revenue Code of 1986— (1) the Thrift Savings Fund shall be treated as a trust described in section 401(a) of such Code which is exempt from taxation under sec- tion 501(a) of such Code; (2) any contribution to, or distribution from, the Thrift Savings Fund shall be treated in the same manner as contributions to or distribu- tions from such a trust; and (3) subject to section 401(k)(4)(B) of such Code and any dollar limitation on the applica- tion of section 402(a)(8) of such Code, contribu- tions to the Thrift Savings Fund shall not be treated as distributed or made available to an employee or Member nor as a contribution