Federal Register: October 19, 2010 (Volume 75, Number 201)
DOCID: fr19oc10-3 FR Doc 2010-25941
DEPARTMENT OF THE TREASURY
Internal Revenue Service
CFR Citation: 26 CFR Part 1
RIN ID: RIN 1545-BG36
TD ID: [TD 9505]
NOTICE: RULES
DOCID: fr19oc10-3
DOCUMENT ACTION: Final Regulations.
SUBJECT CATEGORY:
Hybrid Retirement Plans
DATES: Effective Date: These regulations are effective on October 19, 2010.
Applicability Date: These regulations generally apply to plan years that begin on or after January 1, 2011. However, see the ``Effective/ Applicability Dates'' section in this preamble for additional information regarding the applicability of these regulations.
DOCUMENT SUMMARY:
This document contains final regulations providing guidance relating to certain provisions of the Internal Revenue Code (Code) that apply to hybrid defined benefit pension plans. These regulations provide guidance on changes made by the Pension Protection Act of 2006, as amended by the Worker, Retiree, and Employer Recovery Act of 2008. These regulations affect sponsors, administrators, participants, and beneficiaries of hybrid defined benefit pension plans.
SUMMARY:
Hybrid Retirement Plans
SUPPLEMENTAL INFORMATION
Background
This document contains amendments to the Income Tax Regulations (26 CFR part 1) under sections 411(a)(13) and 411(b)(5) of the Code. Generally, a defined benefit pension plan must satisfy the minimum vesting standards of section 411(a) and the accrual requirements of section 411(b) in order to be qualified under section 401(a) of the Code. Sections 411(a)(13) and 411(b)(5), which modify the minimum vesting standards of section 411(a) and the accrual requirements of section 411(b), were added to the Code by section 701(b) of the Pension Protection Act of 2006, Public Law 109280 (120 Stat. 780 (2006)) (PPA '06). Sections 411(a)(13) and 411(b)(5), as well as certain effective date provisions related to these sections, were subsequently amended by the Worker, Retiree, and Employer Recovery Act of 2008, Public Law 110 458 (122 Stat. 5092 (2008)) (WRERA '08).
Section 411(a)(13)(A) provides that an applicable defined benefit plan (which is defined in section 411(a)(13)(C)) is not treated as failing to meet either (i) the requirements of section 411(a)(2) (subject to a special vesting rule in section 411(a)(13)(B) with respect to benefits derived from employer contributions) or (ii) the requirements of section 411(a)(11), 411(c), or 417(e), with respect to accrued benefits derived from employer contributions, merely because the present value of the accrued benefit (or any portion thereof) of any participant is, under the terms of the plan, equal to the amount expressed as the balance of a hypothetical account or as an accumulated percentage of the participant's final average compensation. Section 411(a)(13)(B) requires an applicable defined benefit plan to provide that an employee who has completed at least 3 years of service has a nonforfeitable right to 100 percent of the employee's accrued benefit derived from employer contributions.
Under section 411(a)(13)(C)(i), an applicable defined benefit plan
is defined as a defined benefit plan under which the accrued benefit
(or any portion thereof) of a participant is calculated as the balance
of a hypothetical account maintained for the participant or as an accumulated percentage of the participant's final
[[Page 64124]]
average compensation. Under section 411(a)(13)(C)(ii), the Secretary of
the Treasury is to issue regulations which include in the definition of
an applicable defined benefit plan any defined benefit plan (or portion
of such a plan) which has an effect similar to a plan described in section 411(a)(13)(C)(i).
Section 411(b)(1)(H)(i) provides that a defined benefit plan fails to comply with section 411(b) if, under the plan, an employee's benefit accrual is ceased, or the rate of an employee's benefit accrual is reduced, because of the attainment of any age. Section 411(b)(5), which was added to the Code by section 701(b)(1) of PPA '06, provides additional rules related to section 411(b)(1)(H)(i). Section 411(b)(5)(A) generally provides that a plan is not treated as failing to meet the requirements of section 411(b)(1)(H)(i) if a participant's accrued benefit, as determined as of any date under the terms of the plan, would be equal to or greater than that of any similarly situated, younger individual who is or could be a participant. For this purpose, section 411(b)(5)(A)(iv) provides that the accrued benefit may, under the terms of the plan, be expressed as an annuity payable at normal retirement age, the balance of a hypothetical account, or the current value of the accumulated percentage of the employee's final average compensation. Section 411(b)(5)(G) provides that, for purposes of section 411(b)(5), any reference to the accrued benefit of a participant refers to the participant's benefit accrued to date.
Section 411(b)(5)(B) imposes certain requirements on an applicable defined benefit plan in order for the plan to satisfy section 411(b)(1)(H). Section 411(b)(5)(B)(i) provides that such a plan is treated as failing to meet the requirements of section 411(b)(1)(H) if the terms of the plan provide for an interest credit (or an equivalent amount) for any plan year at a rate that is greater than a market rate of return. Under section 411(b)(5)(B)(i)(I), a plan is not treated as having an abovemarket rate merely because the plan provides for a reasonable minimum guaranteed rate of return or for a rate of return that is equal to the greater of a fixed or variable rate of return. Section 411(b)(5)(B)(i)(II) provides that an applicable defined benefit plan is treated as failing to meet the requirements of section 411(b)(1)(H) unless the plan provides that an interest credit (or an equivalent amount) of less than zero can in no event result in the account balance or similar amount being less than the aggregate amount of contributions credited to the account. Section 411(b)(5)(B)(i)(III) authorizes the Secretary of the Treasury to provide by regulation for rules governing the calculation of a market rate of return for purposes of section 411(b)(5)(B)(i)(I) and for permissible methods of crediting interest to the account (including fixed or variable interest rates) resulting in effective rates of return meeting the requirements of section 411(b)(5)(B)(i)(I).
Section 411(b)(5)(B)(ii), (iii), and (iv) contains additional
requirements that apply if, after June 29, 2005, an applicable plan
amendment is adopted. Section 411(b)(5)(B)(v)(I) defines an applicable
plan amendment as an amendment to a defined benefit plan which has the
effect of converting the plan to an applicable defined benefit plan.
Under section 411(b)(5)(B)(ii), if, after June 29, 2005, an applicable
plan amendment is adopted, the plan is treated as failing to meet the
requirements of section 411(b)(1)(H) unless the requirements of section
411(b)(5)(B)(iii) are met with respect to each individual who was a
participant in the plan immediately before the adoption of the
amendment. Section 411(b)(5)(B)(iii) specifies that, subject to section
411(b)(5)(B)(iv), the requirements of section 411(b)(5)(B)(iii) are met
with respect to any participant if the accrued benefit of the
participant under the terms of the plan as in effect after the
amendment is not less than the sum of: (I) The participant's accrued
benefit for years of service before the effective date of the
amendment, determined under the terms of the plan as in effect before
the amendment; plus (II) the participant's accrued benefit for years of
service after the effective date of the amendment, determined under the
terms of the plan as in effect after the amendment. Section 411(b)(5)(B)(iv) provides that, for purposes of section
411(b)(5)(B)(iii)(I), the plan must credit the participant's account or
similar amount with the amount of any early retirement benefit or
retirementtype subsidy for the plan year in which the participant
retires if, as of such time, the participant has met the age, years of
service, and other requirements under the plan for entitlement to such benefit or subsidy.
Section 411(b)(5)(B)(v) sets forth certain provisions related to an applicable plan amendment. Section 411(b)(5)(B)(v)(II) provides that if the benefits under two or more defined benefit plans of an employer are coordinated in such a manner as to have the effect of adoption of an applicable plan amendment, the plan sponsor is treated as having adopted an applicable plan amendment as of the date the coordination begins. Section 411(b)(5)(B)(v)(III) directs the Secretary of the Treasury to issue regulations to prevent the avoidance of the purposes of section 411(b)(5)(B) through the use of two or more plan amendments rather than a single amendment.
Section 411(b)(5)(B)(vi) provides special rules for determining benefits upon termination of an applicable defined benefit plan. Under section 411(b)(5)(B)(vi)(I), an applicable defined benefit plan is not treated as satisfying the requirements of section 411(b)(5)(B)(i) (regarding permissible interest crediting rates) unless the plan provides that, upon plan termination, if the interest crediting rate under the plan is a variable rate, the rate of interest used to determine accrued benefits under the plan is equal to the average of the rates of interest used under the plan during the 5year period ending on the termination date. In addition, under section 411(b)(5)(B)(vi)(II), the plan must provide that, upon plan termination, the interest rate and mortality table used to determine the amount of any benefit under the plan payable in the form of an annuity payable at normal retirement age is the rate and table specified under the plan for this purpose as of the termination date, except that if the interest rate is a variable rate, the rate used is the average of the rates used under the plan during the 5year period ending on the termination date.
Section 411(b)(5)(C) provides that a plan is not treated as failing to meet the requirements of section 411(b)(1)(H)(i) solely because the plan provides offsets against benefits under the plan to the extent the offsets are otherwise allowable in applying the requirements of section 401(a). Section 411(b)(5)(D) provides that a plan is not treated as failing to meet the requirements of section 411(b)(1)(H) solely because the plan provides a disparity in contributions or benefits with respect to which the requirements of section 401(l) (relating to permitted disparity for Social Security benefits and related matters) are met.
Section 411(b)(5)(E) provides that a plan is not treated as failing
to meet the requirements of section 411(b)(1)(H) solely because the
plan provides for indexing of accrued benefits under the plan. Under
section 411(b)(5)(E)(iii), indexing means the periodic adjustment of
the accrued benefit by means of the application of a recognized
investment index or methodology. Section 411(b)(5)(E)(ii) requires
that, except in the case of a variable annuity, the indexing not result in a smaller benefit
[[Page 64125]]
than the accrued benefit determined without regard to the indexing.
Section 701(a) of PPA '06 added provisions to the Employee
Retirement Income Security Act of 1974, Public Law 93406 (88 Stat. 829
(1974)) (ERISA), that are parallel to sections 411(a)(13) and 411(b)(5)
of the Code. The guidance provided in these regulations with respect to
the Code also applies for purposes of the parallel amendments to ERISA made by section 701(a) of PPA '06.\1\
\1\ Under section 101 of Reorganization Plan No. 4 of 1978 (43 FR 47713), the Secretary of the Treasury has interpretive
jurisdiction over the subject matter addressed by these regulations for purposes of ERISA, as well as the Code.
Section 701(c) of PPA '06 added provisions to the Age Discrimination in Employment Act of 1967, Public Law 90202 (81 Stat. 602 (1967)) (ADEA), that are parallel to section 411(b)(5) of the Code. Executive Order 12067 requires all Federal departments and agencies to advise and offer to consult with the Equal Employment Opportunity Commission (EEOC) during the development of any proposed rules, regulations, policies, procedures, or orders concerning equal employment opportunity. The Treasury Department and the IRS have consulted with the EEOC prior to the issuance of these regulations.
Section 701(d) of PPA '06 provides that nothing in the amendments made by section 701 should be construed to create an inference concerning the treatment of applicable defined benefit plans or conversions of plans into applicable defined benefit plans under section 411(b)(1)(H), or concerning the determination of whether an applicable defined benefit plan fails to meet the requirements of section 411(a)(2), 411(c), or 417(e), as in effect before such amendments, solely because the present value of the accrued benefit (or any portion thereof) of any participant is, under the terms of the plan, equal to the amount expressed as the balance of a hypothetical account or as an accumulated percentage of the participant's final average compensation.
Section 701(e) of PPA '06 sets forth the effective date provisions with respect to amendments made by section 701 of PPA '06. Section 701(e)(1) specifies that the amendments made by section 701 generally apply to periods beginning on or after June 29, 2005. Thus, the age discrimination safe harbors under section 411(b)(5)(A) and section 411(b)(5)(E) are effective for periods beginning on or after June 29, 2005. Section 701(e)(2) provides that the special present value rules of section 411(a)(13)(A) are effective for distributions made after August 17, 2006 (the date PPA '06 was enacted).
Under section 701(e) of PPA '06, the 3year vesting rule under section 411(a)(13)(B) is generally effective for years beginning after December 31, 2007, for a plan in existence on June 29, 2005, while, pursuant to the amendments made by section 107(c) of WRERA '08, this vesting rule is generally effective for plan years ending on or after June 29, 2005, for a plan not in existence on June 29, 2005. The market rate of return limitation under section 411(b)(5)(B)(i) is generally effective for years beginning after December 31, 2007, for a plan in existence on June 29, 2005, while the limitation is generally effective for periods beginning on or after June 29, 2005, for a plan not in existence on June 29, 2005. Section 701(e)(4) of PPA '06 contains special effective date provisions for collectively bargained plans that modify these effective dates.
Under section 701(e)(5) of PPA '06, as amended by WRERA '08, sections 411(b)(5)(B)(ii), (iii), and (iv) apply to a conversion amendment that is adopted on or after, and takes effect on or after, June 29, 2005.
Under section 701(e)(6) of PPA '06, as added by WRERA '08, the 3 year vesting rule under section 411(a)(13)(B) does not apply to a participant who does not have an hour of service after the date the 3 year vesting rule would otherwise be effective.
Section 702 of PPA '06 provides for regulations to be prescribed by August 16, 2007, addressing the application of rules set forth in section 701 of PPA '06 where the conversion of a defined benefit pension plan into an applicable defined benefit plan is made with respect to a group of employees who become employees by reason of a merger, acquisition, or similar transaction.
Under section 1107 of PPA '06, a plan sponsor is permitted to delay adopting a plan amendment pursuant to statutory provisions under PPA '06 (or pursuant to any regulation issued under PPA '06) until the last day of the first plan year beginning on or after January 1, 2009 (January 1, 2011, in the case of governmental plans). As described in Rev. Proc. 200744 (200728 IRB 54), this amendment deadline applies to both interim and discretionary amendments that are made pursuant to PPA '06 statutory provisions or any regulation issued under PPA '06. See Sec. 601.601(d)(2)(ii)(b).
Section 1107 of PPA '06 also permits certain amendments to reduce or eliminate section 411(d)(6) protected benefits. Except to the extent permitted under section 1107 of PPA '06 (or under another statutory provision, including section 411(d)(6) and Sec. Sec. 1.411(d)3 and 1.411(d)4), section 411(d)(6) prohibits a plan amendment that decreases a participant's accrued benefits or that has the effect of eliminating or reducing an early retirement benefit or retirementtype subsidy, or eliminating an optional form of benefit, with respect to benefits attributable to service before the amendment. However, an amendment that eliminates or decreases benefits that have not yet accrued does not violate section 411(d)(6), provided that the amendment is adopted and effective before the benefits accrue. If section 1107 of PPA '06 applies to an amendment of a plan, section 1107 provides that the plan does not fail to meet the requirements of section 411(d)(6) by reason of such amendment, except as provided by the Secretary of the Treasury.
Proposed regulations (EE18486) under sections 411(b)(1)(H) and
411(b)(2) were published by the Treasury Department and the IRS in the
Federal Register on April 11, 1988 (53 FR 11876), as part of a package
of regulations that also included proposed regulations under sections
410(a), 411(a)(2), 411(a)(8), and 411(c) (relating to the maximum age
for participation, vesting, normal retirement age, and actuarial adjustments after normal retirement age, respectively).\2\
\2\ On December 11, 2002, the Treasury Department and the IRS
issued proposed regulations regarding the age discrimination
requirements of section 411(b)(1)(H) that specifically addressed
cash balance plans as part of a package of regulations that also
addressed section 401(a)(4) nondiscrimination crosstesting rules
applicable to cash balance plans (67 FR 76123). The 2002 proposed
regulations were intended to replace the 1988 proposed regulations.
In Ann. 200322 (20031 CB 847), see Sec. 601.601(d)(2)(ii)(b), the
Treasury Department and the IRS announced the withdrawal of the 2002
proposed regulations under section 401(a)(4), and in Ann. 200457
(20042 CB 15), see Sec. 601.601(d)(2)(ii)(b), the Treasury
Department and the IRS announced the withdrawal of the 2002 proposed regulations relating to age discrimination.
Notice 968 (19961 CB 359), see Sec. 601.601(d)(2)(ii)(b),
described the application of sections 411 and 417(e) to a singlesum
distribution under a cash balance plan where interest credits under the
plan are frontloaded (that is, where the right to future interest
credits with respect to an employee's hypothetical account balance is
not conditioned upon future service and thus accrues at the same time
that the benefits attributable to a hypothetical allocation to the
account accrue). Under the analysis set forth in Notice 968, in order
to comply with sections 411(a) and 417(e) in calculating the amount of [[Page 64126]]
a singlesum distribution under a cash balance plan, the balance of an
employee's hypothetical account must be projected to normal retirement
age and converted to an annuity under the terms of the plan, and then
the employee must be paid at least the present value of the projected
annuity, determined in accordance with section 417(e). Under that
analysis, where a cash balance plan provides frontloaded interest
credits using an interest rate that is higher than the section 417(e)
applicable interest rate, payment of a singlesum distribution equal to
the current hypothetical account balance as a complete distribution of
the employee's accrued benefit may result in a violation of section
417(e) or a forfeiture in violation of section 411(a). In addition,
Notice 968 proposed a safe harbor which provided that, if frontloaded
interest credits are provided under a plan at a rate no greater than
the sum of identified standard indices and associated margins, no
violation of section 411(a) or 417(e) would result if the employee's
entire accrued benefit were to be distributed in the form of a single
sum distribution equal to the employee's hypothetical account balance,
provided the plan uses appropriate annuity conversion factors. Since
the issuance of Notice 968, four Federal appellate courts have
followed the analysis set out in the Notice: Esden v. Bank of Boston,
229 F.3d 154 (2d Cir. 2000), cert. dismissed, 531 U.S. 1061 (2001);
West v. AK Steel Corp. Ret. Accumulation Pension Plan, 484 F.3d 395
(6th Cir. 2007), cert. denied, 129 S. Ct. 895 (2009); Berger v. Xerox
Corp. Ret. Income Guarantee Plan, 338 F.3d 755 (7th Cir. 2003), reh'g
and reh'g en banc denied, No. 023674, 2003 U.S. App. LEXIS 19374 (7th
Cir. Sept. 15, 2003); Lyons v. GeorgiaPacific Salaried Employees Ret.
Plan, 221 F.3d 1235 (11th Cir. 2000), cert. denied, 532 U.S. 967 (2001).
Notice 20076 (20071 CB 272), see Sec. 601.601(d)(2)(ii)(b), provides transitional guidance with respect to certain requirements of sections 411(a)(13) and 411(b)(5) and section 701(b) of PPA '06. Notice 20076 includes certain special definitions, including: Accumulated benefit, which is defined as a participant's benefit accrued to date under a plan; lump sumbased plan, which is defined as a defined benefit plan under the terms of which the accumulated benefit of a participant is expressed as the balance of a hypothetical account maintained for the participant or as the current value of the accumulated percentage of the participant's final average compensation; and statutory hybrid plan, which is defined as a lump sumbased plan or a plan which has an effect similar to a lump sumbased plan. Notice 20076 provides guidance on a number of issues, including a rule under which a plan that provides for indexed benefits described in section 411(b)(5)(E) is a statutory hybrid plan (because it has an effect similar to a lump sumbased plan), unless the plan either solely provides for postretirement adjustment of the amounts payable to a participant or is a variable annuity plan under which the assumed interest rate used to determine adjustments is at least 5 percent. Notice 20076 provides a safe harbor for applying the rules set forth in section 701 of PPA '06 where the conversion of a defined benefit pension plan into an applicable defined benefit plan is made with respect to a group of employees who become employees by reason of a merger, acquisition, or similar transaction. This transitional guidance, along with the other guidance provided in Part III of Notice 20076, applies pending the issuance of further guidance and, thus, does not apply for periods to which these final regulations apply.
Proposed regulations (REG10494607) under sections 411(a)(13) and 411(b)(5) (2007 proposed regulations) were published by the Treasury Department and the IRS in the Federal Register on December 28, 2007 (72 FR 73680). The Treasury Department and the IRS received written comments on the 2007 proposed regulations and a public hearing was held on June 6, 2008.
Announcement 200982 (200948 IRB 720) and Notice 200997 (200952 IRB 972), see Sec. 601.601(d)(2)(ii)(b), announced certain expected relief with respect to the requirements of section 411(b)(5). In particular, Announcement 200982 stated that the rules in the regulations specifying permissible market rates of return are not expected to go into effect before the first plan year that begins on or after January 1, 2011. In addition, Notice 200997 stated that, once final regulations under sections 411(a)(13) and 411(b)(5) are issued, it is expected that relief from the requirements of section 411(d)(6) will be granted for a plan amendment that eliminates or reduces a section 411(d)(6) protected benefit, provided that the amendment is adopted by the last day of the first plan year that begins on or after January 1, 2010, and the elimination or reduction is made only to the extent necessary to enable the plan to meet the requirements of section 411(b)(5).\3\ Notice 200997 also extended the deadline for amending cash balance and other applicable defined benefit plans, within the meaning of section 411(a)(13)(C), to meet the requirements of section 411(a)(13) (other than section 411(a)(13)(A)) and section 411(b)(5), relating to vesting and other special rules applicable to these plans. Under Notice 200997, the deadline for these amendments is the last day of the first plan year that begins on or after January 1, 2010. \3\ However, see footnote 6 in the preamble to the 2010 proposed regulations described in the next paragraph.
After consideration of the comments received in response to the 2007 proposed regulations, these final regulations generally adopt the provisions of the 2007 proposed regulations with certain modifications as described under the heading ``Explanation of Provisions.'' In addition, the Treasury Department and the IRS are issuing proposed regulations (2010 proposed regulations) that address certain issues under sections 411(a)(13) and 411(b)(5) that have not been addressed in these final regulations (and that are generally indicated as ``RESERVED'' in these final regulations), and that also address a related issue under section 411(b)(1). The 2010 proposed regulations are being issued at the same time as these final regulations. Explanation of Provisions
Overview
In general, these final regulations incorporate the transitional
guidance provided under Notice 20076 as well as the provisions of the
2007 proposed regulations. The regulations adopt the terminology used
in the proposed regulations (such as ``statutory hybrid benefit
formula'' and ``lump sumbased benefit formula'') to take into account
situations where plans provide more than one benefit formula. These
regulations also provide additional guidance with respect to sections
411(a)(13) and 411(b)(5), taking into account comments received in
response to the 2007 proposed regulations and also reflecting the enactment of WRERA '08.
I. Section 411(a)(13): Applicable Definitions, Relief of Section
411(a)(13)(A), and Special Vesting Rules for Applicable Defined Benefit Plans
A. Definitions
The regulations under section 411(a)(13) contain certain definitions
[[Page 64127]]
that apply both for purposes of the regulations under section
411(a)(13) and the regulations under section 411(b)(5). Section
411(b)(5)(G) provides that, for purposes of section 411(b)(5), any
reference to the accrued benefit means the benefit accrued to date. The
final regulations refer to this as the ``accumulated benefit'', which
is distinct from the participant's accrued benefit under section
411(a)(7) (an annuity beginning at normal retirement age that is
actuarially equivalent to the participant's accumulated benefit). As in
the 2007 proposed regulations, the regulations use the term ``statutory
hybrid plan'' to refer to an applicable defined benefit plan described
in section 411(a)(13)(C). Under the regulations, a statutory hybrid
plan is a defined benefit plan that contains a statutory hybrid benefit
formula, and a ``statutory hybrid benefit formula'' is a benefit
formula that is either a lump sumbased benefit formula or a formula
that has an effect similar to a lump sumbased benefit formula.
The regulations define a ``lump sumbased benefit formula'' as a benefit formula used to determine all or any part of a participant's accumulated benefit under which the accumulated benefit provided under the formula is expressed as the current balance of a hypothetical account maintained for the participant or as the current value of the accumulated percentage of the participant's final average compensation. The final regulations adopt the rules of the 2007 proposed regulations whereby the determination as to whether a benefit formula is a lump sumbased benefit formula is made based on how the accumulated benefit of a participant is expressed under the terms of the plan, and does not depend on whether the plan provides an optional form of benefit in the form of a singlesum payment. Similarly, a formula does not fail to be a lump sumbased benefit formula merely because the plan's terms state that the participant's accrued benefit is an annuity at normal retirement age that is actuarially equivalent to the balance of a hypothetical account maintained for the participant.
The preamble to the 2007 proposed regulations asked for comments on plan formulas that calculate benefits as the current value of an accumulated percentage of the participant's final average compensation (often referred to as ``pension equity plans'' or ``PEPs''). Commenters indicated that some of these plans never credit interest, directly or indirectly, some explicitly credit interest after cessation of PEP accruals, and some do not credit interest explicitly but provide for specific amounts to be payable after cessation of accruals (both immediately and at future dates) based on actuarial equivalence using specified actuarial factors applied after cessation of accruals.
In response to these comments, the final regulations clarify that a benefit formula is expressed as the balance of a hypothetical account maintained for the participant if it is expressed as a current single sum dollar amount. A lump sumbased benefit formula that credits interest is subject to the market rate of return rules, so that in any case in which a PEP formula provides for interest credits after cessation of PEP accruals, the interest credits are subject to the market rate of return rules.
The 2007 proposed regulations contained a rule whereby a benefit formula would not have been treated as a lump sumbased benefit formula with respect to a participant merely because the participant is entitled to a benefit that is not less than the benefit properly attributable to aftertax employee contributions. In response to comments received that this rule be broadened, the final regulations provide that the benefit properly attributable to aftertax employee contributions, rollover contributions, and other similar employee contributions is disregarded when determining whether a benefit formula is a lump sumbased benefit formula with respect to a participant. Thus, for example, a plan is not a statutory hybrid plan with a lump sumbased benefit formula with respect to a participant merely because the plan provides that the participant's benefit is equal to the sumof or greaterof the benefit properly attributable to employee contributions and the benefit under a traditional defined benefit formula.
The regulations provide that a benefit is not properly attributable to employee contributions if such contributions are credited with interest at a rate that exceeds a reasonable rate of interest or if the conversion factors used to calculate the benefit based on such employee contributions are not actuarially reasonable. The regulations clarify that section 411(c) merely provides an example of an acceptable methodology for purposes of determining the benefit that is properly attributable to employee contributions.
The 2007 proposed regulations provided that a benefit formula under a defined benefit plan has an effect similar to a lump sumbased benefit formula if the formula provides that a participant's accumulated benefit payable at normal retirement age (or at benefit commencement, if later) is expressed as a benefit that includes periodic adjustments (including a formula that provides for indexed benefits described in section 411(b)(5)(E)) that are reasonably expected to result in a smaller annual benefit at normal retirement age (or at benefit commencement, if later) for the participant, when compared to a similarly situated, younger individual who is or could be a participant in the plan. A number of commenters suggested that the rule in the 2007 proposed regulations was too broad generally and also suggested that certain types of plans, such as plans described in section 411(b)(5)(E), be exempted entirely. However, the Treasury Department and the IRS believe that a key purpose of sections 411(a)(13) and 411(b)(5) is to address defined benefit plan formulas where younger participants receive a larger annual benefit at normal retirement age when compared to similarly situated, older participants. Therefore, the final regulations do not significantly narrow the definition of a benefit formula that has an effect similar to a lump sumbased benefit formula.
The regulations clarify that a benefit formula under a defined benefit plan has an effect similar to a lump sumbased benefit formula if the formula provides that a participant's accumulated benefit is expressed as a benefit that includes adjustments (including a formula that provides for indexed benefits described in section 411(b)(5)(E)) for a future period and the total dollar amount of the adjustments is reasonably expected to be smaller for the participant, when compared to a similarly situated, younger individual who is or could be a participant in the plan. Thus, a formula that provides that a participant's accumulated benefit is expressed as a benefit that includes the right to periodic adjustments is treated as having an effect similar to a lump sumbased benefit formula based on a comparison of the expected total dollar amount of the adjustments through benefit commencement, rather than the expected total accumulated benefit after application of these adjustments.
As in the 2007 proposed regulations, the regulations provide that a
benefit formula under a plan has an effect similar to a lump sumbased
benefit formula where the right to future adjustments accrues at the
same time as the benefit that is subject to those adjustments. In
addition, the regulations provide that a benefit formula that does not
include adjustments is nevertheless treated as a formula with an effect
similar to a lump sumbased benefit formula where benefits are adjusted [[Page 64128]]
pursuant to a pattern of repeated plan amendments and the total dollar
amount of those adjustments is reasonably expected to be smaller for
the participant than for any similarly situated, younger individual who
is or could be a participant. See Sec. 1.411(d)4, A1(c)(1).
Like the 2007 proposed regulations, the regulations provide that certain benefits are disregarded when determining whether a benefit formula has an effect similar to a lump sumbased benefit formula. For example, the regulations provide that, for purposes of determining whether a benefit formula has an effect similar to a lump sumbased benefit formula, indexing that applies to adjust benefits after the annuity starting date (for example, costofliving increases) is disregarded. In addition, benefits properly attributable to certain employee contributions that are disregarded for purposes of determining whether a participant is treated as having a lumpsum based benefit formula are also disregarded for purposes of determining whether a formula has an effect similar to a lump sumbased benefit formula.
The regulations include an example that illustrates that a defined benefit formula is not treated as a statutory hybrid benefit formula merely because the formula provides for actuarial increases after normal retirement age. This is because actuarial increases after normal retirement age do not provide smaller adjustments for older participants when compared to similarly situated, younger participants.
The 2007 proposed regulations provided that variable annuity benefit formulas with assumed interest rates (sometimes referred to as ``hurdle rates'') of at least 5 percent are not treated as having an effect similar to a lump sumbased benefit formula. A number of commenters requested that the regulations extend this rule to variable annuity plans with lower hurdle rates. However, plans with lower hurdle rates are more likely to provide positive adjustments for future periods than plans with higher hurdle rates and, as a result, younger participants are more likely to receive a meaningfully larger total dollar amount of adjustments than older participants under these plans. The Treasury Department and the IRS are concerned that exempting these plans would mean that participants would lose the protections afforded to participants in statutory hybrid plans (including 3year vesting and conversion protection). Therefore, the final regulations retain the rule whereby adjustments under a variable annuity do not have an effect similar to a lump sumbased benefit formula if the assumed interest rate used to determine the adjustments is 5 percent or higher. Such an annuity does not have an effect similar to a lump sumbased benefit formula even if postannuity starting date adjustments are made using a specified assumed interest rate that is less than 5 percent. B. Relief Under Section 411(a)(13)(A)
The regulations reflect new section 411(a)(13)(A) by providing that a statutory hybrid plan is not treated as failing to meet the requirements of section 411(a)(2), or, with respect to the participant's accrued benefit derived from employer contributions, the requirements of sections 411(a)(11), 411(c), or 417(e), merely because the plan provides that the present value of benefits as determined under a lump sumbased benefit formula is equal to the thencurrent balance of the hypothetical account maintained for the participant or the thencurrent value of the accumulated percentage of the participant's final average compensation under that formula. However, section 411(a)(13) does not alter the definition of the accrued benefit under section 411(a)(7)(A) (which generally defines the participant's accrued benefit as the annual benefit commencing at normal retirement age), nor does it alter the definition of the normal retirement benefit under section 411(a)(9) (which generally defines the participant's normal retirement benefit as the benefit under the plan commencing at normal retirement age).
Section 411(a)(13)(A) applies only with respect to a benefit provided under a lump sumbased benefit formula. A statutory hybrid plan that provides benefits under a benefit formula that is a statutory hybrid benefit formula other than a lump sumbased benefit formula (such as a plan that provides for indexing as described in section 411(b)(5)(E)) must comply with the present value rules of section 417(e) with respect to an optional form of benefit that is subject to the requirements of section 417(e).
The regulations do not provide guidance as to how section
411(a)(13)(A) applies with respect to payments that are not made in the
form of a singlesum distribution of the hypothetical account balance
or accumulated percentage of final average compensation, such as
payments made in the form of an annuity. That issue is being addressed in the 2010 proposed regulations.
C. Special Vesting Rules for Applicable Defined Benefit Plans
Pursuant to section 411(a)(13)(B), the regulations provide that, in the case of a participant whose accrued benefit (or any portion thereof) under a defined benefit plan is determined under a statutory hybrid benefit formula, the plan is treated as failing to satisfy the requirements of section 411(a)(2) unless the plan provides that the participant has a nonforfeitable right to 100 percent of the participant's accrued benefit derived from employer contributions if the participant has 3 or more years of service. As in the 2007 proposed regulations, the final regulations provide that this requirement applies on a participantbyparticipant basis and applies to the participant's entire benefit derived from employer contributions under a statutory hybrid plan (not just the portion of the participant's benefit that is determined under a statutory hybrid benefit formula). Furthermore, the regulations retain the rule under which, if a participant is entitled to the greater of two (or more) benefit amounts under a plan, where each amount is determined under a different benefit formula (including a benefit determined pursuant to an offset among formulas within the plan or a benefit determined as the greater of a protected benefit under section 411(d)(6) and another benefit amount), at least one of which is a benefit calculated under a statutory hybrid benefit formula, the 3year vesting requirement applies to that participant's entire accrued benefit under the plan even if the participant's benefit under the statutory hybrid benefit formula is ultimately smaller than under the other formula.
The 2007 proposed regulations requested comments regarding the
application of the 3year vesting requirement to a floor plan that is
not a statutory hybrid plan but that is part of a flooroffset
arrangement with an independent plan that is a statutory hybrid plan. A
number of commenters suggested that the 3year vesting requirement
should apply on a planbyplan basis, without regard to whether a plan
is part of a flooroffset arrangement. In contrast, one commenter
suggested that the 3year vesting requirement should apply to both
plans that are part of a flooroffset arrangement even if only one of
the plans is a statutory hybrid plan, because the commenter felt that
determining the amount of the offset in an arrangement involving plans
with different vesting schedules would be inherently difficult.
However, this concern is mitigated because, in the view of the Treasury [[Page 64129]]
Department and the IRS, a flooroffset arrangement where the benefit
payable under a floor plan is reduced by the benefit payable under an
independent plan is only permissible if the arrangement limits the
offset to amounts that are vested under the independent plan.\4\
Therefore, the regulations retain the rule whereby the 3year vesting
requirement is limited to plans that contain a statutory hybrid benefit
formula and provide an example illustrating this rule with respect to a
flooroffset arrangement where the benefit payable under a floor plan
that does not include a statutory hybrid benefit formula is reduced by
the vested accrued benefit payable under an independent plan that includes a statutory hybrid benefit formula.
\4\ See Rev. Rul. 76259 (19762 CB 111), see Sec.
601.601(d)(2)(ii)(b).
II. Section 411(b)(5): Safe Harbor for Age Discrimination, Conversion Protection, and Market Rate of Return Limitation
A. Safe Harbor for Age Discrimination
The regulations reflect new section 411(b)(5)(A), which provides that a plan is not treated as failing to meet the requirements of section 411(b)(1)(H)(i) with respect to certain benefit formulas if, as determined as of any date, a participant's accumulated benefit expressed under one of those formulas would not be less than any similarly situated, younger participant's accumulated benefit expressed under the same formula. A plan that does not satisfy this test is required to satisfy the general age discrimination rule of section 411(b)(1)(H)(i).
As in the 2007 proposed regulations, the regulations provide that the safe harbor standard under section 411(b)(5)(A) is available only where a participant's accumulated benefit under the terms of the plan is expressed as an annuity payable at normal retirement age (or current age, if later), the current balance of a hypothetical account, or the current value of the accumulated percentage of the employee's final average compensation. For this purpose, if the accumulated benefit of a participant is expressed as an annuity payable at normal retirement age (or current age, if later) under the plan terms, then the comparison of benefits is made using such an annuity. Similarly, if the accumulated benefit of a participant is expressed under the plan terms as the current balance of a hypothetical account or the current value of an accumulated percentage of the participant's final average compensation, then the comparison of benefits is made using the current balance of a hypothetical account or the current value of the accumulated percentage of the participant's final average compensation, respectively.
The regulations require a comparison of the accumulated benefit of each possible participant in the plan to the accumulated benefit of each other similarly situated, younger individual who is or could be a participant in the plan. For this purpose, as in the 2007 proposed regulations, the regulations provide that an individual is similarly situated to another individual if the individual is identical to that other individual in every respect that is relevant in determining a participant's benefit under the plan (including, but not limited to, period of service, compensation, position, date of hire, work history, and any other respect) except for age. In determining whether an individual is similarly situated to another individual, any characteristic that is relevant for determining benefits under the plan and that is based directly or indirectly on age is disregarded. For example, if a particular benefit formula applies to a participant on account of the participant's age, an individual to whom the benefit formula does not apply and who is identical to a participant in all respects other than age is similarly situated to the participant. By contrast, an individual is not similarly situated to a participant if a different benefit formula applies to the individual and the application of the different formula is based neither directly nor indirectly on age. For example, if the benefit formula under a plan is changed from one type to another for employees hired after the effective date of the change, employees hired after the relevant date would not be similarly situated with employees hired before that date because the benefit formula for new hires is not based directly nor indirectly on age.
The comparison of accumulated benefits is made without regard to any subsidized portion of any early retirement benefit that is included in a participant's accumulated benefit. For this purpose, the subsidized portion of an early retirement benefit is the retirement type subsidy within the meaning of Sec. 1.411(d)3(g)(6) that is contingent on a participant's severance from employment and commencement of benefits before normal retirement age.
In addition, like the 2007 proposed regulations, the regulations provide that the safe harbor is generally not available with respect to a participant if the benefit of any similarly situated, younger individual is expressed in a different form than the participant's benefit. Thus, for example, the safe harbor is not available for comparing the accumulated benefit of a participant expressed as an annuity at normal retirement age with the accumulated benefit of a similarly situated, younger participant expressed as the current balance of a hypothetical account.
Like the 2007 proposed regulations, the regulations generally permit a plan that provides the sumof or the greaterof benefits that are expressed in two or more different forms of benefit to satisfy the safe harbor if the plan would separately satisfy the safe harbor for each separate form of benefit. For purposes of the safe harbor comparisons involving greaterof and sumof benefit formulas, the 2007 proposed regulations contained a rule where a similarly situated, younger participant would be treated as having an accumulated benefit of zero under a benefit formula that does not apply to the participant. While the sumof and greaterof provisions are organized differently in these regulations, the regulations effectively retain this rule because sumof and greaterof formulas are eligible for the safe harbor even where older participants receive benefits expressed in a different form than the benefits of similarly situated, younger participants, as long as younger participants are not entitled to benefits expressed in a different form than the benefits of similarly situated, older participants.
Several commenters requested that the regulations clarify that the safe harbor is also available to plans that allow older participants to choose, at the time a new statutory hybrid benefit formula goes into effect, whether to receive a benefit under the statutory hybrid benefit formula or under the preexisting traditional defined benefit formula. In response to such comments, the regulations adopt similar rules as the sumof and greaterof rules for plans that provide participants with the choice of benefits that are expressed in two or more different forms.
As part of the sumof, greaterof, and choiceof rules, the
regulations reflect the fact that the sum of benefits expressed in two
or more forms is never less than the greater of the same benefits and
that the greater of benefits expressed in two or more forms is never
less than the choice of the same benefits. As a result, the regulations
provide that in order for the safe harbor to be available with respect
to a participant who is provided with the greater of benefits expressed
in two or more different forms, the plan must not provide any similarly situated, younger participant with the sum of the same
[[Page 64130]]
benefits. Similarly, the regulations provide that in order for the safe
harbor to be available with respect to a participant who is provided
with the choice of benefits expressed in two or more different forms,
the plan must not provide any similarly situated, younger participant
with either the sum of or the greater of the same benefits. In
addition, in order for the safe harbor to be available, the plan cannot
provide for any other relationship between benefits expressed in
different forms other than sumof, greaterof, or choiceof benefits.
The regulations reflect new section 411(b)(5)(C), which provides that a plan is not treated as failing to meet the requirements of section 411(b)(1)(H) solely because the plan provides offsets of benefits under the plan to the extent such offsets are allowable in applying the requirements under section 401 and the applicable requirements of ERISA and ADEA. The regulations incorporate the provisions of section 411(b)(5)(D) (relating to permitted disparity under section 401(l)) without providing additional guidance. These rules are unchanged from the 2007 proposed regulations.
The regulations contain a number of new examples that illustrate the application of the safe harbor under various fact patterns. One of these examples illustrates that the safe harbor is not satisfied in the case of a plan that contains a suspension of benefits provision that reduces or eliminates interest credits for participants who continue in service after normal retirement age.
The regulations also reflect new section 411(b)(5)(E), which provides for the disregard of certain indexing of benefits for purposes of the age discrimination rules of section 411(b)(1)(H). As in the 2007 proposed regulations, the regulations limit the disregard of indexing to formulas under defined benefit plans other than lump sumbased formulas. In addition, the regulations clarify that the disregard of indexing is limited to situations in which the extent of the indexing for a participant would not be less than the indexing applicable to a similarly situated, younger participant. Thus, the disregard of indexing is only available if the indexing is neither terminated nor reduced on account of the attainment of any age.
Section 411(b)(5)(E) requires that the indexing be accomplished by application of a recognized investment index or methodology. The 2007 proposed regulations limited a recognized investment index or methodology to an eligible costofliving index as described in Sec. 1.401(a)(9)6, A14(b), the rate of return on the aggregate assets of the plan, or the rate of return on the annuity contract for the employee issued by an insurance company licensed under the laws of a State. The final regulations expand the list of what constitutes a recognized index or methodology by treating any rate of return that satisfies the market rate of return rules under these regulations as a recognized index or methodology.
As under the 2007 proposed regulations, the section 411(b)(5)(E)(ii) protection against loss (``noloss'') requirement for an indexed plan (which requires that the indexing not result in a smaller accrued benefit than if no indexing had applied) is implemented under the final regulations by applying the ``preservation of capital'' rule of section 411(b)(5)(B)(i)(II) to indexed plans. (The preservation of capital rule is discussed in section II. C. of this preamble.) The final regulations clarify that variable annuity benefit formulas (as defined in the regulations) are exempt from the noloss and preservation of capital rules.
B. Conversion Protection
The regulations provide guidance on the new conversion protections under section 411(b)(5)(B)(ii), (iii), and (iv) which is similar to the 2007 proposed regulations. Under the regulations, a participant whose benefits are affected by a conversion amendment that was both adopted and effective on or after June 29, 2005, must generally be provided with a benefit after the conversion that is at least equal to the sum of the benefits accrued through the date of the conversion and benefits earned after the conversion, with no permitted interaction between these two portions. This assures participants that there will be no ``wearaway'' as a result of a conversion, both with respect to the participant's accrued benefits and any early retirement subsidy to which the participant is entitled based on the preconversion benefits.
The 2007 proposed regulations included an alternative mechanism under which a plan could provide for the establishment of an opening hypothetical account balance or opening accumulated percentage of the participant's final average compensation as part of the conversion and keep separate track of (1) the benefit attributable to the opening hypothetical account balance (including interest credits attributable thereto) or attributable to the opening accumulated percentage of the participant's final average compensation and (2) the benefit attributable to postconversion service under the postconversion benefit formula. Comments on this rule were favorable and it is retained under the final regulations. A variety of examples illustrating application of the alternative are included in the regulations. Under this alternative, when a participant commences benefits, it must be determined whether the benefit attributable to the opening hypothetical account or attributable to the opening accumulated percentage that is payable in the particular optional form of benefit selected is greater than or equal to the benefit accrued under the plan prior to the date of conversion and that was payable in the same generalized optional form of benefit (within the meaning of Sec. 1.411(d)3(g)(8)) at the same annuity starting date. If the benefit attributable to the opening hypothetical account balance or opening accumulated percentage is greater, then the plan must provide that such benefit is paid in lieu of the preconversion benefit, in addition to the benefit attributable to postconversion service under the post conversion benefit formula. If the benefit attributable to the opening hypothetical account balance or opening accumulated percentage is less, then the plan must provide that such benefit will be increased sufficiently to provide the preconversion benefit, in addition to the benefit attributable to postconversion service under the post conversion benefit formula.
As in the 2007 proposed regulations, the final regulations provide under this alternative that, if an optional form of benefit is available on the annuity starting date with respect to the benefit attributable to the opening hypothetical account balance or opening accumulated percentage, but no optional form (such as a singlesum distribution) within the same generalized optional form of benefit was available at that annuity starting date under the terms of a plan as in effect immediately prior to the effective date of the conversion amendment, then the comparison must still be made by assuming that the preconversion plan had such an optional form of benefit.
The preamble to the 2007 proposed regulations asked for comments on
another alternative means of satisfying the conversion requirements
that would involve establishing an opening hypothetical account
balance, but would not require a comparison of benefits at the annuity
starting date if certain requirements are met. Comments on this
alternative were favorable, but some commenters requested that the
alternative only be available where there was sufficient protection to ensure that
[[Page 64131]]
participants' benefits would not be less than would apply under the
rules in the 2007 proposed regulations. While these final regulations
do not permit this additional alternative, it is included in the 2010 proposed regulations.
The regulations also provide guidance that is unchanged from the 2007 proposed regulations on what constitutes a conversion amendment under section 411(b)(5)(B)(v). Under the final regulations, whether an amendment is a conversion amendment is determined on a participantby participant basis. The regulations provide that an amendment (including multiple amendments) is a conversion amendment with respect to a participant if it meets two criteria: (1) The amendment reduces or eliminates the benefits that, but for the amendment, the participant would have accrued after the effective date of the amendment under a benefit formula that is not a statutory hybrid benefit formula and under which the participant was accruing benefits prior to the amendment; and (2) after the effective date of the amendment, all or a portion of the participant's benefit accruals under the plan are determined under a statutory hybrid benefit formula.
The regulations clarify that only amendments that reduce or eliminate accrued benefits described in section 411(a)(7), or retirementtype subsidies described in section 411(d)(6)(B)(i), that would otherwise accrue as a result of future service are treated as amendments that reduce or eliminate the participant's benefits that would have accrued after the effective date of the amendment under a benefit formula that is not a statutory hybrid benefit formula. As under the 2007 proposed regulations, a plan is treated as having been amended for this purpose if, under the terms of the plan, a change in the conditions of a participant's employment results in a reduction or elimination of the benefits that the participant would have accrued in the future under a benefit formula that is not a statutory hybrid benefit formula (for example, a job transfer from an operating division covered by a nonstatutory hybrid defined benefit plan to an operating division that is covered by a formula expressed as the balance of a hypothetical account). However, in the absence of coordination between the formulas, the special requirements for conversion amendments typically will be satisfied automatically.
A number of commenters recommended that the effective date of a conversion amendment generally be the date accruals begin under a statutory hybrid benefit formula, rather than the date that future accruals are reduced under the nonstatutory hybrid benefit formula. Several commenters suggested that, if this recommendation was not implemented generally, it should nevertheless apply at the effective date of an amendment which provides participants with the greater of benefits under the prior formula and a statutory hybrid benefit formula for a period of time before benefit accruals cease under the prior formula, especially if the amendment applies to a subgroup of existing older, long service employees. However, some comments expressed concern that such a change in the proposed definition of the effective date of a conversion amendment would allow plans to delay the statutory anti wearaway protections by adding a less valuable cash balance benefit for the grandfathered group at a date, even though ``the effect of converting'' (within the meaning of section 411(b)(5)(B)(v)(I)) their traditional benefit into a cash balance benefit would occur for them at the later date when their benefit accruals cease under the prior formula.
The Treasury Department and the IRS are concerned that the requested change in the proposed rule would circumvent a key purpose behind the conversion protection requirements by allowing for a delayed wearaway that would occur at the time accruals cease under the prior formula. For example, if a plan were generally converted to a cash balance plan, but the plan were to provide for some class of participants, such as participants who are age 55 or older, to receive the greater of accruals under the prior formula or the new cash balance formula for a period of 5 years, the change requested in the comments would define the effective date of the conversion amendment for all participants to be the date the cash balance formula went into effect (rather than applying a participant by participant rule). As a result, 5 years after the cash balance formula went into effect, the hypothetical account balance for these older participants could provide benefits that are less than the frozen amount under the prior formula, a circumstance that would produce no additional accruals for some period of time after the end of the 5year period. Therefore, the approach suggested by these comments would allow the type of wearaway the statute was intended to prevent. Accordingly, like the 2007 proposed regulations, the regulations adopt a rule whereby the effective date of a conversion amendment is, with respect to a participant, the date as of which the reduction occurs in the benefits that the participant would have accrued after the effective date of the amendment under a benefit formula that is not a statutory hybrid benefit formula. In accordance with section 411(d)(6), the regulations provide that the date future benefit accruals are reduced cannot be earlier than the date of adoption of the conversion amendment.
The regulations provide rules, similar to those in the 2007 proposed regulations, prohibiting the avoidance of the conversion protections through the use of multiple plans or multiple employers. Under these rules, an employer is treated as having adopted a conversion amendment if the employer adopts an amendment under which a participant's benefits under a plan that is not a statutory hybrid plan are coordinated with a separate plan that is a statutory hybrid plan, such as through a reduction (offset) of the benefit under the plan that is not a statutory hybrid plan. In addition, if an employee's employer changes as a result of a merger, acquisition, or other transaction described in Sec. 1.410(b)2(f), then the employee's old and new employers would be treated as a single employer for this purpose. Thus, for example, in an acquisition, if the buyer adopts an amendment to its statutory hybrid plan under which a participant's benefits under the seller's plan (that is not a statutory hybrid plan) are coordinated with benefits under the buyer's plan, such as through a reduction (offset) of the buyer's plan benefits, the seller and buyer would be treated as a single employer and as having adopted a conversion amendment. However, if there is no coordination between the plans, there is no conversion amendment.
The regulations retain the rule from the 2007 proposed regulations
under which a conversion amendment also includes multiple amendments
that result in a conversion amendment, even if the amendments would not
be conversion amendments individually. If an amendment to provide a
benefit under a statutory hybrid benefit formula is adopted within 3
years after adoption of an amendment to reduce benefits under a non
statutory hybrid benefit formula, then those amendments would be
consolidated in determining whether a conversion amendment has been
adopted. In the case of an amendment to provide a benefit under a
statutory hybrid benefit formula that is adopted more than 3 years
after adoption of an amendment to reduce nonstatutory hybrid benefit
formula benefits, there is a presumption that the amendments are not
consolidated unless the facts and circumstances indicate that adoption of an amendment to provide a benefit
[[Page 64132]]
under a statutory hybrid benefit formula was intended at the time of
the reduction in the nonstatutory hybrid benefit formula benefits.
A number of commenters expressed concern that the interaction between employee transfers and the conversion protection effective date provisions was unclear under the 2007 proposed regulations. In response to such comments, the regulations clarify that a conversion amendment must be both adopted on or after June 29, 2005, and be effective on or after June 29, 2005, in order for the conversion protection provisions to apply to such amendment. Therefore, if a transfer provision was adopted before June 29, 2005, an employee transfer is not treated as part of a conversion amendment to which the conversion protection provisions apply, even if the transfer occurs on or after June 29, 2005.
C. Market Rate of Return Limitation
The regulations reflect the rule in section 411(b)(5)(B)(i)(I) under which a statutory hybrid plan is treated as failing to satisfy section 411(b)(1)(H) if it provides an interest crediting rate with respect to benefits determined under a statutory hybrid benefit formula that is in excess of a market rate of return. Several commenters suggested that the definition of
FOR FURTHER INFORMATION CONTACT
Neil S. Sandhu, Lauson C. Green, or Linda S. F. Marshall at (202) 6226090 (not a tollfree number).