Except as provided in subsection (b), this subchapter applies to any plan (including a successor plan) which, for a plan year—
(1)
section 1002 of this title is an employee pension benefit plan (as defined in paragraph (2) of ) established or maintained—
(A)
by an employer engaged in commerce or in any industry or activity affecting commerce, or
(B)
by any employee organization, or organization representing employees, engaged in commerce or in any industry or activity affecting commerce, or
(C)
by both,
which has, in practice, met the requirements of part I of subchapter D of chapter 1 of title 26 (as in effect for the preceding 5 plan years of the plan) applicable to the plans described in paragraph (2) for the preceding 5 plan years; or
(2)
section 401(a) of title 26section 404(a)(2) of title 26 is, or has been determined by the Secretary of the Treasury to be, a plan described in , or which meets, or has been determined by the Secretary of the Treasury to meet, the requirements of .
For purposes of this subchapter, a successor plan is considered to be a continuation of a predecessor plan. For this purpose, unless otherwise specifically indicated in this subchapter, a successor plan is a plan which covers a group of employees which includes substantially the same employees as a previously established plan, and provides substantially the same benefits as that plan provided.
(b)
Plans not covered
This section does not apply to any plan—
(1)
section 1002 of this title11 So in original. The comma probably should be a semicolon. which is an individual account plan, as defined in paragraph (34) of ,
(2)
45 U.S.C. 231section 1002(32) of this title22 So in original. A semicolon probably should appear. established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing, or to which the Railroad Retirement Act of 1935 or 1937 [ et seq.] applies and which is financed by contributions required under that Act, or which is described in the last sentence of
(3)
section 414(e) of title 26section 410(d) of title 2633Pub. L. 93–406 So in original. Subtitle B of title IV of , classified to this subtitle, does not contain parts.1 which is a church plan as defined in , unless that plan has made an election under , and has notified the corporation in accordance with procedures prescribed by the corporation, that it wishes to have the provisions of this part apply to it,
(4)(A)
established and maintained by a society, order, or association described in section 501(c)(8) or (9) of title 26, if no part of the contributions to or under the plan is made by employers of participants in the plan, or
which has not at any time after , provided for employer contributions;
(6)
which is unfunded and which is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees;
(7)
which is established and maintained outside of the United States primarily for the benefit of individuals substantially all of whom are nonresident aliens;
(8)
section 415 of title 26 which is maintained by an employer solely for the purpose of providing benefits for certain employees in excess of the limitations on contributions and benefits imposed by on plans to which that section applies, without regard to whether the plan is funded, and, to the extent that a separable part of a plan (as determined by the corporation) maintained by an employer is maintained for such purpose, that part shall be treated for purposes of this subchapter, as a separate plan which is an excess benefit plan;
(9)
which is established and maintained exclusively for substantial owners;
(10)
22 U.S.C. 288 of an international organization which is exempt from taxation under the International Organizations Immunities Act [ et seq.];
(11)
maintained solely for the purpose of complying with applicable workmen’s compensation laws or unemployment compensation or disability insurance laws;
(12)
section 1002 of this title which is a defined benefit plan, to the extent that it is treated as an individual account plan under paragraph (35)(B) of ; or
(13)
established and maintained by a professional service employer which does not at any time after , have more than 25 active participants in the plan.
(c)
Definitions
(1)
For purposes of subsection (b)(1), the term “individual account plan” does not include a plan under which a fixed benefit is promised if the employer or his representative participated in the determination of that benefit.
(2)
For purposes of this paragraph and for purposes of subsection (b)(13)—
(A)
the term “professional service employer” means any proprietorship, partnership, corporation, or other association or organization (i) owned or controlled by professional individuals or by executors or administrators of professional individuals, (ii) the principal business of which is the performance of professional services, and
(B)
the term “professional individuals” includes but is not limited to, physicians, dentists, chiropractors, osteopaths, optometrists, other licensed practitioners of the healing arts, attorneys at law, public accountants, public engineers, architects, draftsmen, actuaries, psychologists, social or physical scientists, and performing artists.
(3)
In the case of a plan established and maintained by more than one professional service employer, the plan shall not be treated as a plan described in subsection (b)(13) if, at any time after , the plan has more than 25 active participants.
(d)
Substantial owner defined
For purposes of subsection (b)(9), the term “substantial owner” means an individual who, at any time during the 60-month period ending on the date the determination is being made—
(1)
owns the entire interest in an unincorporated trade or business,
(2)
in the case of a partnership, is a partner who owns, directly or indirectly, more than 10 percent of either the capital interest or the profits interest in such partnership, or
(3)
in the case of a corporation, owns, directly or indirectly, more than 10 percent in value of either the voting stock of that corporation or all the stock of that corporation.
section 1563(e) of title 26section 414(c) of title 26For purposes of paragraph (3), the constructive ownership rules of (other than paragraph (3)(C) thereof) shall apply, including the application of such rules under .
act Aug. 29, 1935, ch. 81249 Stat. 967act June 24, 1937, ch. 382, part I50 Stat. 307Pub. L. 93–445, title I88 Stat. 1305The Railroad Retirement Act of 1935 or 1937, referred to in subsec. (b)(2), means , , known as the Railroad Retirement Act of 1935. The Railroad Retirement Act of 1935 was amended generally by , , and was known as the Railroad Retirement Act of 1937. The Railroad Retirement Act of 1937 was amended generally and redesignated the Railroad Retirement Act of 1974 by , , , and is classified generally to subchapter IV (§ 231 et seq.) of chapter 9 of Title 45, Railroads. For complete classification of this Act to the Code, see Tables.
act Dec. 29, 1945, ch. 65259 Stat. 669section 288 of Title 22The International Organizations Immunities Act, referred to in subsec. (b)(10), is title I of , , which is classified principally to subchapter XVIII (§ 288 et seq.) of chapter 7 of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under and Tables.
Amendments
Pub. L. 110–458section 7701(a)(40) of title 26section 7871(d) of title 262008—Subsec. (b)(14). struck out par. (14) which read as follows: “established and maintained by an Indian tribal government (as defined in ), a subdivision of an Indian tribal government (determined in accordance with ), or an agency or instrumentality of either, and all of the participants of which are employees of such entity substantially all of whose services as such an employee are in the performance of essential governmental functions but not in the performance of commercial activities (whether or not an essential government function).”
Pub. L. 101–239, § 7894(g)(3)(A)1989—Subsec. (a). , substituted “this subchapter applies” for “this section applies” in introductory provisions.
Pub. L. 101–239, § 7891(a)(1)Subsecs. (a)(1), (2), (b)(3), (4)(A), (8). , 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. 96–3641980—Subsec. (a). inserted “unless otherwise specifically indicated in this subchapter,” after “For this purpose,”.
Except as provided in paragraph (2), the amendments made by this section [amending this section and sections 1322, 1343, and 1344 of this title] shall apply to plan terminations—
“(A)
29 U.S.C. 1341(c)29 U.S.C. 1341(a)(2) under section 4041(c) of the Employee Retirement Income Security Act of 1974 () with respect to which notices of intent to terminate are provided under section 4041(a)(2) of such Act () after , and
“(B)
29 U.S.C. 1342 under section 4042 of such Act () with respect to which notices of determination are provided under such section after such date.
“(2)
Conforming amendments .—
section 1343 of this titleThe amendments made by subsection (c) [amending this section and ] shall take effect on .”