29 U.S.C. § 1344 | Allocation of assets

(a)

Order of priority of participants and beneficiaries

In the case of the termination of a single-employer plan, the plan administrator shall allocate the assets of the plan (available to provide benefits) among the participants and beneficiaries of the plan in the following order:

(1)

First, to that portion of each individual’s accrued benefit which is derived from the participant’s contributions to the plan which were not mandatory contributions.

(2)

Second, to that portion of each individual’s accrued benefit which is derived from the participant’s mandatory contributions.

(3)

Third, in the case of benefits payable as an annuity—

(A)

in the case of the benefit of a participant or beneficiary which was in pay status as of the beginning of the 3-year period ending on the termination date of the plan, to each such benefit, based on the provisions of the plan (as in effect during the 5-year period ending on such date) under which such benefit would be the least,

(B)

in the case of a participant’s or beneficiary’s benefit (other than a benefit described in subparagraph (A)) which would have been in pay status as of the beginning of such 3-year period if the participant had retired prior to the beginning of the 3-year period and if his benefits had commenced (in the normal form of annuity under the plan) as of the beginning of such period, to each such benefit based on the provisions of the plan (as in effect during the 5-year period ending on such date) under which such benefit would be the least.

For purposes of subparagraph (A), the lowest benefit in pay status during a 3-year period shall be considered the benefit in pay status for such period.

(4)

Fourth—

(A)

section 1322b(a) of this title to all other benefits (if any) of individuals under the plan guaranteed under this subchapter (determined without regard to ), and

(B)

section 1322(b)(5)(B) of this title to the additional benefits (if any) which would be determined under subparagraph (A) if did not apply.

section 1321 of this titleFor purposes of this paragraph, shall be applied without regard to subsection (c) thereof.

(5)

Fifth, to all other nonforfeitable benefits under the plan.

(6)

Sixth, to all other benefits under the plan.

(b)

Adjustment of allocations; reallocations; mandatory contributions; establishment of subclasses and categories

For purposes of subsection (a)—

(1)

The amount allocated under any paragraph of subsection (a) with respect to any benefit shall be properly adjusted for any allocation of assets with respect to that benefit under a prior paragraph of subsection (a).

(2)

If the assets available for allocation under any paragraph of subsection (a) (other than paragraphs (4), (5), and (6)) are insufficient to satisfy in full the benefits of all individuals which are described in that paragraph, the assets shall be allocated pro rata among such individuals on the basis of the present value (as of the termination date) of their respective benefits described in that paragraph.

(3)

If assets available for allocation under paragraph (4) of subsection (a) are insufficient to satisfy in full the benefits of all individuals who are described in that paragraph, the assets shall be allocated first to benefits described in subparagraph (A) of that paragraph. Any remaining assets shall then be allocated to benefits described in subparagraph (B) of that paragraph. If assets allocated to such subparagraph (B) are insufficient to satisfy in full the benefits described in that subparagraph, the assets shall be allocated pro rata among individuals on the basis of the present value (as of the termination date) of their respective benefits described in that subparagraph.

(4)

This paragraph applies if the assets available for allocation under paragraph (5) of subsection (a) are not sufficient to satisfy in full the benefits of individuals described in that paragraph.

(A)

If this paragraph applies, except as provided in subparagraph (B), the assets shall be allocated to the benefits of individuals described in such paragraph (5) on the basis of the benefits of individuals which would have been described in such paragraph (5) under the plan as in effect at the beginning of the 5-year period ending on the date of plan termination.

(B)

If the assets available for allocation under subparagraph (A) are sufficient to satisfy in full the benefits described in such subparagraph (without regard to this subparagraph), then for purposes of subparagraph (A), benefits of individuals described in such subparagraph shall be determined on the basis of the plan as amended by the most recent plan amendment effective during such 5-year period under which the assets available for allocation are sufficient to satisfy in full the benefits of individuals described in subparagraph (A) and any assets remaining to be allocated under such subparagraph shall be allocated under subparagraph (A) on the basis of the plan as amended by the next succeeding plan amendment effective during such period.

(5)

section 401(a)(4) of title 26 If the Secretary of the Treasury determines that the allocation made pursuant to this section (without regard to this paragraph) results in discrimination prohibited by then, if required to prevent the disqualification of the plan (or any trust under the plan) under section 401(a) or 403(a) of title 26, the assets allocated under subsections (a)(4)(B), (a)(5), and (a)(6) shall be reallocated to the extent necessary to avoid such discrimination.

(6)

The term “mandatory contributions” means amounts contributed to the plan by a participant which are required as a condition of employment, as a condition of participation in such plan, or as a condition of obtaining benefits under the plan attributable to employer contributions. For this purpose, the total amount of mandatory contributions of a participant is the amount of such contributions reduced (but not below zero) by the sum of the amounts paid or distributed to him under the plan before its termination.

(7)

A plan may establish subclasses and categories within the classes described in paragraphs (1) through (6) of subsection (a) in accordance with regulations prescribed by the corporation.

(c)

Increase or decrease in value of assets

section 1342(b) of this titleAny increase or decrease in the value of the assets of a single-employer plan occurring during the period beginning on the later of (1) the date a trustee is appointed under or (2) the date on which the plan is terminated is to be allocated between the plan and the corporation in the manner determined by the court (in the case of a court-appointed trustee) or as agreed upon by the corporation and the plan administrator in any other case. Any increase or decrease in the value of the assets of a single-employer plan occurring after the date on which the plan is terminated shall be credited to, or suffered by, the corporation.

(d)

Distribution of residual assets; restrictions on reversions pursuant to recently amended plans; assets attributable to employee contributions; calculation of remaining assets

(1)

Subject to paragraph (3), any residual assets of a single-employer plan may be distributed to the employer if—

(A)

all liabilities of the plan to participants and their beneficiaries have been satisfied,

(B)

the distribution does not contravene any provision of law, and

(C)

the plan provides for such a distribution in these circumstances.

(2)

(A)

In determining the extent to which a plan provides for the distribution of plan assets to the employer for purposes of paragraph (1)(C), any such provision, and any amendment increasing the amount which may be distributed to the employer, shall not be treated as effective before the end of the fifth calendar year following the date of the adoption of such provision or amendment.

(B)

A distribution to the employer from a plan shall not be treated as failing to satisfy the requirements of this paragraph if the plan has been in effect for fewer than 5 years and the plan has provided for such a distribution since the effective date of the plan.

(C)

section 1058 of this title Except as otherwise provided in regulations of the Secretary of the Treasury, in any case in which a transaction described in occurs, subparagraph (A) shall continue to apply separately with respect to the amount of any assets transferred in such transaction.

(D)

osection 414 of title 26 For purposes of this subsection, the term “employer” includes any member of the controlled group of which the employer is a member. For purposes of the preceding sentence, the term “controlled group” means any group treated as a single employer under subsection (b), (c), (m) or () of .

(3)

(A)

section 1056(d)(3)(K) of this title Before any distribution from a plan pursuant to paragraph (1), if any assets of the plan attributable to employee contributions remain after satisfaction of all liabilities described in subsection (a), such remaining assets shall be equitably distributed to the participants who made such contributions or their beneficiaries (including alternate payees, within the meaning of ).

(B)

For purposes of subparagraph (A), the portion of the remaining assets which are attributable to employee contributions shall be an amount equal to the product derived by multiplying—

(i)

the market value of the total remaining assets, by

(ii)

a fraction—

(I)

the numerator of which is the present value of all portions of the accrued benefits with respect to participants which are derived from participants’ mandatory contributions (referred to in subsection (a)(2)), and

(II)

the denominator of which is the present value of all benefits with respect to which assets are allocated under paragraphs (2) through (6) of subsection (a).

(C)

For purposes of this paragraph, each person who is, as of the termination date—

(i)

a participant under the plan, or

(ii)

section 1053(e) of this title an individual who has received, during the 3-year period ending with the termination date, a distribution from the plan of such individual’s entire nonforfeitable benefit in the form of a single sum distribution in accordance with or in the form of irrevocable commitments purchased by the plan from an insurer to provide such nonforfeitable benefit,

shall be treated as a participant with respect to the termination, if all or part of the nonforfeitable benefit with respect to such person is or was attributable to participants’ mandatory contributions (referred to in subsection (a)(2)).

(4)

section 4980(d) of title 26 section 1104(d) of this title Nothing in this subsection shall be construed to limit the requirements of (as in effect immediately after the enactment of the Omnibus Budget Reconciliation Act of 1990) or with respect to any distribution of residual assets of a single-employer plan to the employer.

(e)

Bankruptcy filing substituted for termination date

If a contributing sponsor of a plan has filed or has had filed against such person a petition seeking liquidation or reorganization in a case under title 11 or under any similar Federal law or law of a State or political subdivision, and the case has not been dismissed as of the termination date of the plan, then subsection (a)(3) shall be applied by treating the date such petition was filed as the termination date of the plan.

(f)

Valuation of section 1362(c) liability for determining amounts payable by corporation to participants and beneficiaries

(1)

In general

section 1362(c) of this titleIn the case of a terminated plan, the value of the recovery of liability under allocable as a plan asset under this section for purposes of determining the amount of benefits payable by the corporation shall be determined by multiplying—

(A)

section 1362(c) of this title the amount of liability under as of the termination date of the plan, by

(B)

the applicable section 1362(c) recovery ratio.

(2)

Section 1362(c) recovery ratio

For purposes of this subsection—

(A)

In general

Except as provided in subparagraph (C), the term “section 1362(c) recovery ratio” means the ratio which—

(i)

section 1362(c) of this title the sum of the values of all recoveries under determined by the corporation in connection with plan terminations described under subparagraph (B), bears to

(ii)

section 1362(c) of this title the sum of all the amounts of liability under with respect to such plans as of the termination date in connection with any such prior termination.

(B)

Prior terminations

A plan termination described in this subparagraph is a termination with respect to which—

(i)

section 1362(c) of this title the value of recoveries under have been determined by the corporation, and

(ii)

section 1342 of this title section 1342 of this title notices of intent to terminate were provided (or in the case of a termination by the corporation, a notice of determination under was issued) during the 5-Federal fiscal year period ending with the third fiscal year preceding the fiscal year in which occurs the date of the notice of intent to terminate (or the notice of determination under ) with respect to the plan termination for which the recovery ratio is being determined.

(C)

Exception

In the case of a terminated plan with respect to which the outstanding amount of benefit liabilities exceeds $20,000,000, the term “section 1362(c) recovery ratio” means, with respect to the termination of such plan, the ratio of—

(i)

section 1362(c) of this title the value of the recoveries on behalf of the plan under , to

(ii)

section 1362(c) of this title the amount of the liability owed under as of the date of plan termination to the trustee appointed under section 1342(b) or (c) of this title.

(3)

Subsection not to apply

This subsection shall not apply with respect to the determination of—

(A)

whether the amount of outstanding benefit liabilities exceeds $20,000,000, or

(B)

section 1362 of this title the amount of any liability under to the corporation or the trustee appointed under section 1342(b) or (c) of this title.

(4)

Determinations

Determinations under this subsection shall be made by the corporation. Such determinations shall be binding unless shown by clear and convincing evidence to be unreasonable.

Pub. L. 93–406, title IV, § 4044Sept. 2, 197488 Stat. 1025 Pub. L. 96–364, title IV, § 402(a)(7)Sept. 26, 198094 Stat. 1299 Pub. L. 99–272, title XI, § 11016(c)(12)Apr. 7, 1986100 Stat. 274 Pub. L. 100–203, title IX, § 9311(a)(1)Dec. 22, 1987101 Stat. 1330–359 Pub. L. 101–239, title VIIDec. 19, 1989103 Stat. 2440 Pub. L. 101–508, title XII, § 12002(b)(2)(B)Nov. 5, 1990104 Stat. 1388–566 Pub. L. 109–280, title IVAug. 17, 2006120 Stat. 928 Pub. L. 110–458, title I, § 104(c)Dec. 23, 2008122 Stat. 5104(, , ; , , ; , (13), , ; , (b), (c), , , 1330–360; , §§ 7881(e)(3), 7891(a)(1), 7894(g)(2), , , 2445, 2451; , , ; , §§ 404(b), 407(b), 408(b)(2), , , 930, 931; , , .)

Editorial Notes

References in Text

Pub. L. 101–508Nov. 5, 1990The enactment of the Omnibus Budget Reconciliation Act of 1990, referred to in subsec. (d)(4), is the enactment of , which was approved .

Amendments

Pub. L. 110–4582008—Subsecs. (e), (f). redesignated subsec. (e) relating to valuation of section 1362(c) liability for determining amounts payable by corporation to participants and beneficiaries as (f).

Pub. L. 109–280, § 407(b)(1)2006—Subsec. (a)(4)(B). , substituted “1322(b)(5)(B)” for “1322(b)(5)”.

Pub. L. 109–280, § 407(b)(2)(A)Subsec. (b)(2). , substituted “(4), (5),” for “(5)”.

Pub. L. 109–280, § 407(b)(2)(B)Subsec. (b)(3) to (7). , added par. (3) and redesignated former pars. (3) to (6) as (4) to (7), respectively.

Pub. L. 109–280, § 408(b)(2)Subsec. (e). , added subsec. (e) relating to valuation of section 1362(c) liability for determining amounts payable by corporation to participants and beneficiaries.

Pub. L. 109–280, § 404(b), added subsec. (e) relating to substitution of bankruptcy filing date for termination date.

Pub. L. 101–5081990—Subsec. (d)(4). added par. (4).

Pub. L. 101–239, § 7894(g)(2)1989—Subsec. (a)(1). , substituted “accrued” for “accured”.

Pub. L. 101–239, § 7891(a)(1)Subsec. (b)(4). , 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, § 7881(e)(3)Pub. L. 100–203, § 9311(b)(2)Subsec. (d)(3). , made technical correction to directory language of , see 1987 Amendment note below.

Pub. L. 100–203, § 9311(c)section 405(a) of title 261987—Subsec. (b)(4). , struck out reference to .

Pub. L. 100–203, § 9311(b)(1)Subsec. (d)(1). , substituted “Subject to paragraph (3), any” for “Any”.

Pub. L. 100–203, § 9311(a)(1)(B)Subsec. (d)(2). , added par. (2). Former par. (2) redesignated (3).

Pub. L. 100–203, § 9311(b)(2)Pub. L. 101–239, § 7881(e)(3)Subsec. (d)(3). , as amended by , added par. (3), and struck out former par. (3) which read as follows: “Notwithstanding the provisions of paragraph (1), if any assets of the plan attributable to employee contributions, remain after all liabilities of the plan to participants and their beneficiaries have been satisfied, such assets shall be equitably distributed to the employees who made such contributions (or their beneficiaries) in accordance with their rate of contributions.”

Pub. L. 100–203, § 9311(a)(1)(A), redesignated former par. (2) as (3).

Pub. L. 99–272, § 11016(c)(12)1986—Subsec. (a). , in provision preceding par. (1) struck out “defined benefit” after “single-employer”.

Pub. L. 99–272, § 11016(c)(13)(A)Subsec. (a)(4)(A). , substituted “section 1322b(a)” for “section 1322(b)(5)”.

Pub. L. 99–272, § 11016(c)(13)(B)Subsec. (a)(4)(B). , substituted “section 1322(b)(5)” for “section 1322(b)(6)”.

Pub. L. 96–364, § 402(a)(7)(A)1980—Subsec. (a). , inserted “single-employer” before “defined benefit”.

Pub. L. 96–364, § 402(a)(7)(B)Subsec. (c). , inserted “single-employer” before “plan occurring” wherever appearing.

Pub. L. 96–364, § 402(a)(7)(C)Subsec. (d)(1). , inserted “single-employer” after “assets of a”.

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Pub. L. 110–458 Pub. L. 109–280 section 112 of Pub. L. 110–458 section 72 of Title 26Amendment by effective as if included in the provisions of to which the amendment relates, except as otherwise provided, see , set out as a note under , Internal Revenue Code.

Effective Date of 2006 Amendment

section 404(b) of Pub. L. 109–280Aug. 17, 2006section 404(c) of Pub. L. 109–280 section 1322 of this titleAmendment by applicable with respect to proceedings initiated under Title 11, Bankruptcy, or under any similar Federal law or law of a State or political subdivision, on or after the date that is 30 days after , see , set out as a note under .

section 407(b) of Pub. L. 109–280 section 1341(c) of this title section 1341(a)(2) of this titleDec. 31, 2005section 1342 of this title section 407(d)(1) of Pub. L. 109–280 section 1321 of this titleAmendment by applicable to plan terminations under with respect to which notices of intent to terminate are provided under after , and under with respect to which notices of determination are provided under such section after such date, see , set out as a note under .

section 408(b)(2) of Pub. L. 109–280 section 1342 of this titleAug. 17, 2006section 408(c) of Pub. L. 109–280 section 1322 of this titleAmendment by applicable for any termination for which notices of intent to terminate are provided, or in the case of a termination by the corporation, a notice of determination under is issued, on or after the date which is 30 days after , see , set out as a note under .

Effective Date of 1990 Amendment

Pub. L. 101–508Sept. 30, 1990Sept. 30, 1990Oct. 1, 1990section 1054(h) of this titleOct. 1, 1990Oct. 1, 1990Oct. 1, 1990section 12003 of Pub. L. 101–508 section 4980 of Title 26Amendment by applicable to reversions occurring after , but not applicable to any reversion after , if (1) in the case of plans subject to subchapter III of this chapter, notice of intent to terminate under such subchapter was provided to participants (or if no participants, to Pension Benefit Guaranty Corporation) before , (2) in the case of plans subject to subchapter I of this chapter (and not subchapter III), notice of intent to reduce future accruals under was provided to participants in connection with termination before , (3) in the case of plans not subject to subchapter I or III of this chapter, a request for a determination letter with respect to termination was filed with Secretary of the Treasury or Secretary’s delegate before , or (4) in the case of plans not subject to subchapter I or III of this chapter and having only one participant, a resolution terminating the plan was adopted by employer before , see , set out as a note under , Internal Revenue Code.

Effective Date of 1989 Amendment

section 7881(e)(3) 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(g)(2) 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 1987 Amendment

Pub. L. 100–203, title IX, § 9311(d)Dec. 22, 1987101 Stat. 1330–360 Pub. L. 101–239, title VII, § 7881(e)(2)Dec. 19, 1989103 Stat. 2439

“The amendments made by this section [amending this section] shall apply with respect to—

“(1)

29 U.S.C. 1341December 17, 1987 plan terminations under section 4041 of ERISA [] with respect to which notices of intent to terminate are provided under section 4041(a)(2) of ERISA after , and

“(2)

29 U.S.C. 1342December 17, 1987 plan terminations with respect to which proceedings are instituted by the Pension Benefit Guaranty Corporation under section 4042 of ERISA [] after .

December 17, 1987Except as provided in subsection (a)(2) [set out below], the amendments made by subsection (a) [amending this section] shall apply to any provision of the plan or plan amendment adopted after .”

, , , as amended by , , , provided that:

Effective Date of 1986 Amendment

Pub. L. 99–272Jan. 1, 1986section 11019 of Pub. L. 99–272 section 1341 of this titleAmendment by effective , with certain exceptions, 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 .

Transitional Rule Relating to Restrictions on Employer Reversions Upon Plan Termination Pursuant to Recently Amended Plans

Pub. L. 100–203, title IX, § 9311(a)(2)Dec. 22, 1987101 Stat. 1330–359 Pub. L. 101–239, title VII, § 7881(e)(1)Dec. 19, 1989103 Stat. 2439

December 17, 1987December 17, 1988“The amendments made by paragraph (1) [amending this section] shall apply, in the case of plans which, as of , have no provision relating to the distribution of residual plan assets upon termination, only with respect to plan amendments providing for the distribution of plan assets to the employer which are adopted after .”

, , , as amended by , (4), , , 2440, provided that:

Special Temporary Rule for Termination of Single-Employer Plan

section 11008(d) of Pub. L. 99–272 section 1341 of this titleFor special temporary rule relating to requirements to be met before the final distribution of assets in the case of the termination of certain single-employer plans with respect to which the amount payable to the employer pursuant to subsec. (d) of this section exceeds $1,000,000, see , set out as a note under .