29 U.S.C. § 1103 | Establishment of trust

(a)

Benefit plan assets to be held in trust; authority of trustees

section 1102(a) of this titleExcept as provided in subsection (b), all assets of an employee benefit plan shall be held in trust by one or more trustees. Such trustee or trustees shall be either named in the trust instrument or in the plan instrument described in or appointed by a person who is a named fiduciary, and upon acceptance of being named or appointed, the trustee or trustees shall have exclusive authority and discretion to manage and control the assets of the plan, except to the extent that—

(1)

the plan expressly provides that the trustee or trustees are subject to the direction of a named fiduciary who is not a trustee, in which case the trustees shall be subject to proper directions of such fiduciary which are made in accordance with the terms of the plan and which are not contrary to this chapter, or

(2)

section 1102(c)(3) of this title authority to manage, acquire, or dispose of assets of the plan is delegated to one or more investment managers pursuant to .

(b)

Exceptions

The requirements of subsection (a) of this section shall not apply—

(1)

to any assets of a plan which consist of insurance contracts or policies issued by an insurance company qualified to do business in a State;

(2)

to any assets of such an insurance company or any assets of a plan which are held by such an insurance company;

(3)

to a plan—

(A)

section 401(c)(1) of title 26 some or all of the participants of which are employees described in ; or

(B)

section 408 of title 26 which consists of one or more individual retirement accounts described in ;

to the extent that such plan’s assets are held in one or more custodial accounts which qualify under section 401(f) or 408(h) of title 26, whichever is applicable.

(4)

to a plan which the Secretary exempts from the requirement of subsection (a) and which is not subject to any of the following provisions of this chapter—

(A)

part 2 of this subtitle,

(B)

part 3 of this subtitle, or

(C)

subchapter III of this chapter; or

(5)

section 403(b) of title 26 section 403(b)(7) of title 26 to a contract established and maintained under to the extent that the assets of the contract are held in one or more custodial accounts pursuant to .

(6)

Any plan, fund or program under which an employer, all of whose stock is directly or indirectly owned by employees, former employees or their beneficiaries, proposes through an unfunded arrangement to compensate retired employees for benefits which were forfeited by such employees under a pension plan maintained by a former employer prior to the date such pension plan became subject to this chapter.

(c)

Assets of plan not to inure to benefit of employer; allowable purposes of holding plan assets

(1)

1 See References in Text note below.

section 420 of title 26December 29, 2022 Except as provided in paragraph (2), (3), or (4)  or subsection (d), or under sections 1342 and 1344 of this title (relating to termination of insured plans), or under (as in effect on ), the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan.

(2)

(A)

In the case of a contribution, or a payment of withdrawal liability under part 1 of subtitle E of subchapter III—

(i)

if such contribution or payment is made by an employer to a plan (other than a multiemployer plan) by a mistake of fact, paragraph (1) shall not prohibit the return of such contribution to the employer within one year after the payment of the contribution, and

(ii)

section 401(a) of title 26 section 501(a) of title 26 if such contribution or payment is made by an employer to a multiemployer plan by a mistake of fact or law (other than a mistake relating to whether the plan is described in or the trust which is part of such plan is exempt from taxation under ), paragraph (1) shall not prohibit the return of such contribution or payment to the employer within 6 months after the plan administrator determines that the contribution was made by such a mistake.

(B)

If a contribution is conditioned on initial qualification of the plan under section 401 or 403(a) of title 26, and if the plan receives an adverse determination with respect to its initial qualification, then paragraph (1) shall not prohibit the return of such contribution to the employer within one year after such determination, but only if the application for the determination is made by the time prescribed by law for filing the employer’s return for the taxable year in which such plan was adopted, or such later date as the Secretary of the Treasury may prescribe.

(C)

section 404 of title 26 If a contribution is conditioned upon the deductibility of the contribution under , then, to the extent the deduction is disallowed, paragraph (1) shall not prohibit the return to the employer of such contribution (to the extent disallowed) within one year after the disallowance of the deduction.

(3)

In the case of a withdrawal liability payment which has been determined to be an overpayment, paragraph (1) shall not prohibit the return of such payment to the employer within 6 months after the date of such determination.

(d)

Termination of plan

(1)

section 1321 of this title section 1344 of this title Upon termination of a pension plan to which does not apply at the time of termination and to which this part applies (other than a plan to which no employer contributions have been made) the assets of the plan shall be allocated in accordance with the provisions of , except as otherwise provided in regulations of the Secretary.

(2)

The assets of a welfare plan which terminates shall be distributed in accordance with the terms of the plan, except as otherwise provided in regulations of the Secretary.

Pub. L. 93–406, title I, § 403Sept. 2, 197488 Stat. 876 Pub. L. 96–364, title III, § 310Sept. 26, 198094 Stat. 1296 Pub. L. 100–203, title IX, § 9343(c)Dec. 22, 1987101 Stat. 1330–372 Pub. L. 101–239, title VIIDec. 19, 1989103 Stat. 2443 Pub. L. 101–508, title XII, § 12012(a)Nov. 5, 1990104 Stat. 1388–571 Pub. L. 103–465, title VII, § 731(c)(4)(B)Dec. 8, 1994108 Stat. 5004 Pub. L. 106–170, title V, § 535(a)(2)(B)Dec. 17, 1999113 Stat. 1934 Pub. L. 108–218, title II, § 204(b)(2)Apr. 10, 2004118 Stat. 609 Pub. L. 108–357, title VII, § 709(a)(2)Oct. 22, 2004118 Stat. 1551 Pub. L. 109–280, title I, § 108(a)(11)Aug. 17, 2006120 Stat. 819 Pub. L. 111–192, title II, § 202(a)June 25, 2010124 Stat. 1297 Pub. L. 112–141, div. D, title II, § 40241(b)(1)July 6, 2012126 Stat. 859 Pub. L. 114–41, title II, § 2007(b)(1)July 31, 2015129 Stat. 459 Pub. L. 117–328, div. T, title VI, § 606(b)(2)Dec. 29, 2022136 Stat. 5397(, , ; , title IV, §§ 402(b)(2), 410(a), 411(c), , , 1299, 1308; , , ; , §§ 7881(k), 7891(a)(1), 7894(e)(1)(A), (3), , , 2445, 2450; , , ; , , ; , , ; , , ; , , ; , formerly § 107(a)(11), , , renumbered , , ; , , ; , , ; , , .)

Editorial Notes

References in Text

Pub. L. 93–406 section 1001 of this titleThis chapter, referred to in subsecs. (a)(1) and (b)(4), (6), was in the original “this Act”, meaning , known as the Employee Retirement Income Security Act of 1974. Titles I, III, and IV of such Act are classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under and Tables.

Pub. L. 101–239, title VII, § 7881(k)Dec. 19, 1989103 Stat. 2443Paragraph (2), (3), or (4), referred to in subsec. (c)(1), probably should be a reference only to par. (2) or (3) of subsec. (c), as par. (3) was struck out, and par. (4) was redesignated as (3), by , , .

Amendments

Pub. L. 117–328December 29, 2022July 31, 20152022—Subsec. (c)(1). substituted “(as in effect on )” for “(as in effect on )”.

Pub. L. 114–41July 31, 2015July 6, 20122015—Subsec. (c)(1). substituted “” for “”. Amendment was executed to reflect the probable intent of Congress notwithstanding an extra closing quotation mark in the directory language.

Pub. L. 112–141July 6, 2012August 17, 20062012—Subsec. (c)(1). substituted “” for “”.

Pub. L. 109–280August 17, 2006October 22, 20042006—Subsec. (c)(1). substituted “” for “”.

Pub. L. 108–357October 22, 2004April 10, 20042004—Subsec. (c)(1). substituted “” for “”.

Pub. L. 108–218April 10, 2004December 17, 1999 substituted “” for “”.

Pub. L. 106–170December 17, 1999January 1, 19951999—Subsec. (c)(1). substituted “” for “”.

Pub. L. 103–4651994—Subsec. (c)(1). substituted “1995” for “1991”.

Pub. L. 101–508 section 420 of title 26January 1, 19911990—Subsec. (c)(1). inserted “, or under (as in effect on )” after “insured plans”.

Pub. L. 101–239, § 7891(a)(1)1989—Subsecs. (b)(3), (5), (c)(2)(A)(ii), (C). , substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”, which for purposes of codification was translated as “title 26” thus requiring no change in text.

Pub. L. 101–239, § 7894(e)(3)Subsec. (b)(3). , redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively, struck out “, to the extent that such plan’s assets are held in one or more custodial accounts which qualify under section 401(f) or 408(h) of title 26, whichever is applicable” before the semicolon in subpar. (B), and inserted concluding provision “to the extent that such plan’s assets are held in one or more custodial accounts which qualify under section 401(f) or 408(h) of title 26, whichever is applicable.”

Pub. L. 101–239, § 7894(e)(1)(A)Subsec. (c)(2)(A). , in introductory provisions, made technical amendment to reference to part 1 of subtitle E of subchapter III of this chapter to correct reference to corresponding part of original Act, requiring no change in text, and in cls. (i) and (ii), inserted “if such contribution or payment is” before “made by an employer”.

Pub. L. 101–239, § 7881(k)section 4979(c) of title 26Subsec. (c)(3), (4). , redesignated par. (4) as (3) and struck out former par. (3) which read as follows: “In the case of a contribution which would otherwise be an excess contribution (as defined in ) paragraph (1) shall not prohibit a correcting distribution with respect to such contribution from the plan to the employer to the extent permitted in such section to avoid payment of an excise tax on excess contributions under such section.”

Pub. L. 100–203, § 9343(c)(1)1987—Subsec. (c)(2)(B). , amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “If a contribution is conditioned on qualification of the plan under section 401, 403(a), or 405(a) of title 26, and if the plan does not qualify, then paragraph (1) shall not prohibit the return of such contributions to the employer within one year after the date of denial of qualification of the plan.”

Pub. L. 100–203, § 9343(c)(2)section 4979(c) of title 26 section 4972(b) of title 26Subsec. (c)(3). , substituted “” for “”.

Pub. L. 96–364, § 402(b)(2)1980—Subsec. (a)(1). , substituted “chapter” for “subchapter”.

Pub. L. 96–364, § 411(c)Subsec. (b)(6). , added par. (6).

Pub. L. 96–364, § 310(1)Subsec. (c)(1). , inserted reference to par. (4).

Pub. L. 96–364, § 410(a)Subsec. (c)(2)(A). , substituted provisions relating to contributions or payments of withdrawal liability under part 1 of subtitle E of subchapter III of this chapter made by an employer to a plan by a mistake of fact, and by an employer to a multiemployer plan by a mistake of fact or law, for provisions relating to contributions made by an employer by a mistake of fact.

Pub. L. 96–364, § 310(2)Subsec. (c)(4). , added par. (4).

Statutory Notes and Related Subsidiaries

Effective Date of 2022 Amendment

Pub. L. 117–328Dec. 29, 2022section 606(c) of Pub. L. 117–328 section 420 of Title 26Amendment by applicable to transfers made after , see , set out as a note under , Internal Revenue Code.

Effective Date of 2006 Amendment

Pub. L. 109–280 section 108(e) of Pub. L. 109–280 section 1021 of this titleAmendment by applicable to plan years beginning after 2007, see , set out as a note under .

Effective Date of 1999 Amendment

Pub. L. 106–170Dec. 17, 1999section 535(c)(1) of Pub. L. 106–170 section 420 of Title 26Amendment by applicable to qualified transfers occurring after , see , set out as a note under , Internal Revenue Code.

Effective Date of 1990 Amendment

Pub. L. 101–508 section 420 of title 26Nov. 5, 1990section 12012(e) of Pub. L. 101–508 section 1021 of this titleAmendment by applicable to qualified transfers under made after , see , set out as a note under .

Effective Date of 1989 Amendment

section 7881(k) of Pub. L. 101–239 Pub. L. 100–203 section 7882 of Pub. L. 101–239 section 401 of Title 26Amendment by effective, except as otherwise provided, as if included in the provision of the Pension Protection Act, , §§ 9302–9346, to which such amendment relates, see , set out as a note under , Internal Revenue Code.

section 7891(a)(1) of Pub. L. 101–239 Pub. L. 99–514 section 7891(f) of Pub. L. 101–239 section 1002 of this titleAmendment by effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, , to which such amendment relates, see , set out as a note under .

Section 7894(e)(1)(B) of Pub. L. 101–239

Pub. L. 96–364“The amendments made by subparagraph (A) [amending this section] shall take effect as if included in section 410 of the Multiemployer Pension Plan Amendments Act of 1980 [].”

provided that:

section 7894(e)(3) of Pub. L. 101–239 Pub. L. 93–406 section 7894(i) of Pub. L. 101–239 section 1002 of this titleAmendment by effective, except as otherwise provided, as if originally included in the provision of the Employee Retirement Income Security Act of 1974, , to which such amendment relates, see , set out as a note under .

Effective Date of 1980 Amendment

Pub. L. 96–364Sept. 26, 1980section 1461(e) of this titleAmendment by effective , except as specifically provided, see .

section 410(a) of Pub. L. 96–364Jan. 1, 1975Sept. 26, 1980section 410(c) of Pub. L. 96–364 section 401 of Title 26Amendment by effective , except with respect to contributions received by a collectively bargained plan maintained by more than one employer before , see , set out as a note under , Internal Revenue Code.

Regulations

Sept. 2, 1974Secretary authorized, effective , to promulgate regulations wherever provisions of this part call for the promulgation of regulations, see sections 1031 and 1114 of this title.

Pub. L. 109–280Applicability of Amendments by Subtitles A and B of Title I of

Pub. L. 109–280 Pub. L. 109–280 section 401 of Title 26For special rules on applicability of amendments by subtitles A (§§ 101–108) and B (§§ 111–116) of title I of to certain eligible cooperative plans, PBGC settlement plans, and eligible government contractor plans, see sections 104, 105, and 106 of , set out as notes under , Internal Revenue Code.