Title 29 — Labor
Chapter 18 — Employee Retirement Income Security Program
§ 1344. Allocation of assets
Statutory text
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:
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.
Second, to that portion of each individual’s accrued benefit which is derived from the participant’s mandatory contributions.
Third, in the case of benefits payable as an annuity—
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,
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.
Fourth—
to all other benefits (if any) of individuals under the plan guaranteed under this subchapter (determined without regard to section 1322b(a) of this title), and
to the additional benefits (if any) which would be determined under subparagraph (A) if section 1322(b)(5)(B) of this title did not apply.
For purposes of this paragraph, section 1321 of this title shall be applied without regard to subsection (c) thereof.
Fifth, to all other nonforfeitable benefits under the plan.
Sixth, to all other benefits under the plan.
Adjustment of allocations; reallocations; mandatory contributions; establishment of subclasses and categories
For purposes of subsection (a)—
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).
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.
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.
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.
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.
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.
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 section 401(a)(4) of title 26 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.
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.
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.
Increase or decrease in value of assets
Any 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 section 1342(b) of this title 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.
Distribution of residual assets; restrictions on reversions pursuant to recently amended plans; assets attributable to employee contributions; calculation of remaining assets
Subject to paragraph (3), any residual assets of a single-employer plan may be distributed to the employer if—
all liabilities of the plan to participants and their beneficiaries have been satisfied,
the distribution does not contravene any provision of law, and
the plan provides for such a distribution in these circumstances.
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.
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.
Except as otherwise provided in regulations of the Secretary of the Treasury, in any case in which a transaction described in section 1058 of this title occurs, subparagraph (A) shall continue to apply separately with respect to the amount of any assets transferred in such transaction.
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 (o) of section 414 of title 26.
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 section 1056(d)(3)(K) of this title).
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—
the market value of the total remaining assets, by
a fraction—
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
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).
For purposes of this paragraph, each person who is, as of the termination date—
a participant under the plan, or
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 section 1053(e) of this title 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)).
Nothing in this subsection shall be construed to limit the requirements of section 4980(d) of title 26 (as in effect immediately after the enactment of the Omnibus Budget Reconciliation Act of 1990) or section 1104(d) of this title with respect to any distribution of residual assets of a single-employer plan to the employer.
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.
Valuation of section 1362(c) liability for determining amounts payable by corporation to participants and beneficiaries
In general
In the case of a terminated plan, the value of the recovery of liability under section 1362(c) of this title 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—
the amount of liability under section 1362(c) of this title as of the termination date of the plan, by
the applicable section 1362(c) recovery ratio.
Section 1362(c) recovery ratio
For purposes of this subsection—
In general
Except as provided in subparagraph (C), the term “section 1362(c) recovery ratio” means the ratio which—
the sum of the values of all recoveries under section 1362(c) of this title determined by the corporation in connection with plan terminations described under subparagraph (B), bears to
the sum of all the amounts of liability under section 1362(c) of this title with respect to such plans as of the termination date in connection with any such prior termination.
Prior terminations
A plan termination described in this subparagraph is a termination with respect to which—
the value of recoveries under section 1362(c) of this title have been determined by the corporation, and
notices of intent to terminate were provided (or in the case of a termination by the corporation, a notice of determination under section 1342 of this title 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 section 1342 of this title) with respect to the plan termination for which the recovery ratio is being determined.
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—
the value of the recoveries on behalf of the plan under section 1362(c) of this title, to
the amount of the liability owed under section 1362(c) of this title as of the date of plan termination to the trustee appointed under section 1342(b) or (c) of this title.
Subsection not to apply
This subsection shall not apply with respect to the determination of—
whether the amount of outstanding benefit liabilities exceeds $20,000,000, or
the amount of any liability under section 1362 of this title to the corporation or the trustee appointed under section 1342(b) or (c) of this title.
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.
Legislative history
Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.
Employee Retirement Income Security Act of 1974
Pub. L. 93–406 title IV § 4044 · 88 Stat. 829
Enacted · 29 U.S.C. § 1344
Pub. L. 93–406, title IV, § 4044, Sept. 2, 1974, 88 Stat. 1025
Source evidence
Code source credit
Pub. L. 93–406, title IV, § 4044, Sept. 2, 1974, 88 Stat. 1025Enacted provision · exact public law section
Sec. 4044. allocation of assets (a) In the case of the termination of a defined benefit 29 USC 1344. 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) to all other benefits (if any) of individuals under the plan guaranteed under this title (determined without regard to section 4022(b)(5)), and (B) to the additional benefits (if any) which would be determined under subparagraph (A) if section 4022(b)(6) did not apply. For purposes of this paragraph, section 4021 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) 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 (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) 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. (4) 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 section 401(a)(4) of the Internal Revenue Code of 1954 then, if required to prevent Ante, p. 938. 26 USC 403, 405. the disqualification of the plan (or any trust under the plan) under section 401(a), 403(a), or 405(a) of such Code, the assets allocated under subsections (a)(4)(B), (a)(5), and (a)(6) shall be reallocated to the extent necessary to avoid such discrimination. (5) The term “mandatory contributions” means amounts contributed “Mandatory contributions.” 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. (6) 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) Any increase or decrease in the value of the assets of a plan occurring during the period beginning on the later of (1) the date a trustee is appointed under section 4042(b) or (2) the date on which Ante, p. 1021. 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 plan occurring after the date on which the plan is terminated shall be credited to, or suffered by, the corporation. (d) (1) Any residual assets of a 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) 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.Multiemployer Pension Plan Amendments Act of 1980
Pub. L. 96–364 § 402(a)(7)(A) · 94 Stat. 1208
Inserted · 29 U.S.C. § 1344(a)
Pub. L. 96–364, § 402(a)(7)(A), inserted “single-employer” before “defined benefit”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 96–364, § 402(a)(7)(A), inserted “single-employer” before “defined benefit”.Enacted provision · exact public law section
(A) in subsection (a), by inserting “single-employer” before “defined benefit plan”;Multiemployer Pension Plan Amendments Act of 1980
Pub. L. 96–364 § 402(a)(7)(B) · 94 Stat. 1208
Inserted · 29 U.S.C. § 1344(c)
Pub. L. 96–364, § 402(a)(7)(B), inserted “single-employer” before “plan occurring” wherever appearing
Source evidence
Code amendment note
Subsec. (c). Pub. L. 96–364, § 402(a)(7)(B), inserted “single-employer” before “plan occurring” wherever appearing.Enacted provision · exact public law section
(B) in subsection (c), by inserting “single-employer” before “plan occurring during” and before “plan occurring after”; andMultiemployer Pension Plan Amendments Act of 1980
Pub. L. 96–364 § 402(a)(7)(C) · 94 Stat. 1208
Inserted · 29 U.S.C. § 1344(d)(1)
Pub. L. 96–364, § 402(a)(7)(C), inserted “single-employer” after “assets of a”
Source evidence
Code amendment note
Subsec. (d)(1). Pub. L. 96–364, § 402(a)(7)(C), inserted “single-employer” after “assets of a”.Enacted provision · exact public law section
(C) in subsection (d)(1), by inserting “single-employer” before “plan may be distributed”.Single-Employer Pension Plan Amendments Act of 1986
Pub. L. 99–272 § 11016(c)(12) · 100 Stat. 82
Struck · 29 U.S.C. § 1344(a)
Pub. L. 99–272, § 11016(c)(12), in provision preceding par. (1) struck out “defined benefit” after “single-employer”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 99–272, § 11016(c)(12), in provision preceding par. (1) struck out “defined benefit” after “single-employer”.Enacted provision · exact public law section
(12) Conforming amendment.— Section 4044(a) (29 U.S.C. 1344(a)) is amended by striking out “defined benefit”.Single-Employer Pension Plan Amendments Act of 1986
Pub. L. 99–272 § 11016(c)(13)(A) · 100 Stat. 82
Substituted · 29 U.S.C. § 1344(a)(4)(A)
Pub. L. 99–272, § 11016(c)(13)(A), substituted “section 1322b(a)” for “section 1322(b)(5)”
Source evidence
Code amendment note
Subsec. (a)(4)(A). Pub. L. 99–272, § 11016(c)(13)(A), substituted “section 1322b(a)” for “section 1322(b)(5)”.Enacted provision · exact public law section
(A) in subparagraph (A), by striking out “section 4022(b)(5)” and inserting in lieu thereof “section 4022B(a)”; andSingle-Employer Pension Plan Amendments Act of 1986
Pub. L. 99–272 § 11016(c)(13)(B) · 100 Stat. 82
Substituted · 29 U.S.C. § 1344(a)(4)(B)
Pub. L. 99–272, § 11016(c)(13)(B), substituted “section 1322(b)(5)” for “section 1322(b)(6)”
Source evidence
Code amendment note
Subsec. (a)(4)(B). Pub. L. 99–272, § 11016(c)(13)(B), substituted “section 1322(b)(5)” for “section 1322(b)(6)”.Enacted provision · exact public law section
(B) in subparagraph (B), by striking out “section 4022(b)(6)” and inserting in lieu thereof “section 4022(b)(5)”.Pub. L. 100–203 § 9311(c) · 101 Stat. 1330
Struck · 29 U.S.C. § 1344(b)(4)
Pub. L. 100–203, § 9311(c), struck out reference to section 405(a) of title 26
Source evidence
Code amendment note
Subsec. (b)(4). Pub. L. 100–203, § 9311(c), struck out reference to section 405(a) of title 26.Enacted provision · exact public law section
(c) Technical Amendment.— Section 4044(b)(4) of ERISA (29 U.S.C. 1344(b)(4)) is amended by striking “section 401(a), 403(a), or 405(a)” and inserting “section 401(a) or 403(a)”.Pub. L. 100–203 § 9311(b)(1) · 101 Stat. 1330
Substituted · 29 U.S.C. § 1344(d)(1)
Pub. L. 100–203, § 9311(b)(1), substituted “Subject to paragraph (3), any” for “Any”
Source evidence
Code amendment note
Subsec. (d)(1). Pub. L. 100–203, § 9311(b)(1), substituted “Subject to paragraph (3), any” for “Any”.Enacted provision · exact public law section
(1) in paragraph (1), by striking “Any” and inserting “Subject to paragraph (3), any”; andPub. L. 100–203 § 9311(a)(1)(B) · 101 Stat. 1330
Redesignated · 29 U.S.C. § 1344(d)(2)
Pub. L. 100–203, § 9311(a)(1)(B), added par. (2). Former par. (2) redesignated (3)
Source evidence
Code amendment note
Subsec. (d)(2). Pub. L. 100–203, § 9311(a)(1)(B), added par. (2). Former par. (2) redesignated (3).Enacted provision · exact public law section
(B) by inserting after paragraph (1) the following new paragraph:Pub. L. 100–203 § 9311(b)(2) · 101 Stat. 1330
Amended · 29 U.S.C. § 1344(d)(3)
Pub. L. 100–203, § 9311(b)(2), as amended by Pub. L. 101–239, § 7881(e)(3)
Added · 29 U.S.C. § 1344(d)(3)
Pub. L. 100–203, § 9311(b)(2), as added par. (3)
Struck · 29 U.S.C. § 1344(d)(3)
Pub. L. 100–203, § 9311(b)(2), as 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.”
Source evidence
Code amendment note
Subsec. (d)(3). Pub. L. 100–203, § 9311(b)(2), as amended by Pub. L. 101–239, § 7881(e)(3), 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.”Enacted provision · exact public law section
(2) by striking paragraph (3) (as redesignated by subsection (c)(1)) and inserting the following new paragraph:Pub. L. 100–203 § 9311(a)(1)(A) · 101 Stat. 1330
Redesignated · 29 U.S.C. § 1344(d)(3)
Pub. L. 100–203, § 9311(a)(1)(A), redesignated former par. (2) as (3)
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 100–203, § 9311(a)(1)(A), redesignated former par. (2) as (3).Enacted provision · exact public law section
(A) by redesignating paragraph (2) as paragraph (3); andRevenue Reconciliation Act of 1989
Pub. L. 101–239 § 7894(g)(2) · 103 Stat. 2106
Substituted · 29 U.S.C. § 1344(a)(1)
Pub. L. 101–239, § 7894(g)(2), substituted “accrued” for “accured”
Source evidence
Code amendment note
Subsec. (a)(1). Pub. L. 101–239, § 7894(g)(2), substituted “accrued” for “accured”.Enacted provision · exact public law section
(2) Paragraph (1) of section 4044(a) of ERISA is amended by 29 USC 1344. striking “accured” and inserting “accrued”.Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7891(a)(1) · 103 Stat. 2106
Substituted · 29 U.S.C. § 1344(b)(4)
Pub. L. 101–239, § 7891(a)(1), 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
Source evidence
Code amendment note
Subsec. (b)(4). Pub. L. 101–239, § 7891(a)(1), 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.Enacted provision · exact public law section
(1) Titles I, III, and IV of ERISA (other than sections 3(37)(E), 29 USC 1001 et seq. 301(a)(7), and 308, the last sentence of section 408(d), and sections 414(c), 4001(a)(3)(ii), and 4303) are each amended by striking “Internal Revenue Code of 1954” each place it appears and inserting “Internal Revenue Code of 1986”.Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7881(e)(3) · 103 Stat. 2106
Changed · 29 U.S.C. § 1344(d)(3)
Pub. L. 101–239, § 7881(e)(3), made technical correction to directory language of Pub. L. 100–203, § 9311(b)(2), see 1987 Amendment note below
Source evidence
Code amendment note
Subsec. (d)(3). Pub. L. 101–239, § 7881(e)(3), made technical correction to directory language of Pub. L. 100–203, § 9311(b)(2), see 1987 Amendment note below.Enacted provision · exact public law section
(3) Section 9311(b)(2) of the Pension Protection Act is amended by striking “subsection (c)(1)” and inserting “subsection (a)(1)”.Omnibus Budget Reconciliation Act of 1990
Pub. L. 101–508 title XII § 12002(b)(2)(B) · 104 Stat. 1388
Added · 29 U.S.C. § 1344(d)(4)
Pub. L. 101–508 added par. (4)
Source evidence
Code amendment note
Subsec. (d)(4). Pub. L. 101–508 added par. (4).Enacted provision · exact public law section
(B) Section 4044(d) of such Act (29 U.S.C. 1344(d)) is amended by adding at the end thereof the following new paragraph: “(4) Nothing in this subsection shall be construed to limit the requirements of section 4980(d) of the Internal Revenue Code of 1986 (as in effect immediately after the enactment of the Omnibus Budget Reconciliation Act of 1990) or section 404(d) of this Act with respect to any distribution of residual assets of a single-employer plan to the employer.”Pub. L. 109–280 § 407(b)(1) · 120 Stat. 780
Substituted · 29 U.S.C. § 1344(a)(4)(B)
Pub. L. 109–280, § 407(b)(1), substituted “1322(b)(5)(B)” for “1322(b)(5)”
Source evidence
Code amendment note
Subsec. (a)(4)(B). Pub. L. 109–280, § 407(b)(1), substituted “1322(b)(5)(B)” for “1322(b)(5)”.Enacted provision · exact public law section
(1) Section 4044(a)(4)(B) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1344(a)(4)(B)) is amended by striking “section 4022(b)(5)” and inserting “section 4022(b)(5)(B)”.Effective date note
Amendment by Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code.Pub. L. 109–280 § 407(b)(2)(A) · 120 Stat. 780
Substituted · 29 U.S.C. § 1344(b)(2)
Pub. L. 109–280, § 407(b)(2)(A), substituted “(4), (5),” for “(5)”
Source evidence
Code amendment note
Subsec. (b)(2). Pub. L. 109–280, § 407(b)(2)(A), substituted “(4), (5),” for “(5)”.Enacted provision · exact public law section
(A) by striking “(5)” in paragraph (2) and inserting “(4), (5),”, andEffective date note
Amendment by Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code.Pub. L. 109–280 § 407(b)(2)(B) · 120 Stat. 780
Added · 29 U.S.C. § 1344(b)(3)(7)
Pub. L. 109–280, § 407(b)(2)(B), added par. (3)
Redesignated · 29 U.S.C. § 1344(b)(3)(7)
Pub. L. 109–280, § 407(b)(2)(B), redesignated former pars. (3) to (6) as (4) to (7), respectively
Source evidence
Code amendment note
Subsec. (b)(3) to (7). Pub. L. 109–280, § 407(b)(2)(B), added par. (3) and redesignated former pars. (3) to (6) as (4) to (7), respectively.Enacted provision · exact public law section
(B) by redesignating paragraphs (3) through (6) as paragraphs (4) through (7), respectively, and by inserting after paragraph (2) the following new 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.” .Effective date note
Amendment by Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code.Pub. L. 109–280 § 408(b)(2) · 120 Stat. 780
Added · 29 U.S.C. § 1344(e)
Pub. L. 109–280, § 408(b)(2), added subsec. (e) relating to valuation of section 1362(c) liability for determining amounts payable by corporation to participants and beneficiaries
Source evidence
Code amendment note
Subsec. (e). Pub. L. 109–280, § 408(b)(2), added subsec. (e) relating to valuation of section 1362(c) liability for determining amounts payable by corporation to participants and beneficiaries.Enacted provision · exact public law section
(2) Allocation of assets.— Section 4044 of the Employee Retirement Income Security Act of 1974 29 USC 1344. (29 U.S.C. 1362) is amended by adding at the end the following new subsection: “(e) Valuation of Section 4062(c) Liability for Determining Amounts Payable by Corporation to Participants and Beneficiaries.— “(1) In general.— In the case of a terminated plan, the value of the recovery of liability under section 4062(c) 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) the amount of liability under section 4062(c) as of the termination date of the plan, by “(B) the applicable section 4062(c) recovery ratio. “(2) Section 4062(c) recovery ratio.— For purposes of this subsection— “(A) In general.— Except as provided in subparagraph (C), the term ‘section 4062(c) recovery ratio’ means the ratio which— “(i) the sum of the values of all recoveries under section 4062(c) determined by the corporation in connection with plan terminations described under subparagraph (B), bears to “(ii) the sum of all the amounts of liability under section 4062(c) 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) the value of recoveries under section 4062(c) have been determined by the corporation, and “(ii) notices of intent to terminate were provided (or in the case of a termination by the corporation, a notice of determination under section 4042 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 section 4042) 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 4062(c) recovery ratio’ means, with respect to the termination of such plan, the ratio of— “(i) the value of the recoveries on behalf of the plan under section 4062(c), to “(ii) the amount of the liability owed under section 4062(c) as of the date of plan termination to the trustee appointed under section 4042 (b) or (c). “(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) the amount of any liability under section 4062 to the corporation or the trustee appointed under section 4042 (b) or (c). “(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.” .Effective date note
Amendment by Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code.Pub. L. 109–280 § 404(b) · 120 Stat. 780
Substituted · 29 U.S.C. § 1344(e)
Pub. L. 109–280, § 404(b), added subsec. (e) relating to substitution of bankruptcy filing date for termination date
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 109–280, § 404(b), added subsec. (e) relating to substitution of bankruptcy filing date for termination date.Enacted provision · exact public law section
(b) Allocation of Assets Among Priority Groups in Bankruptcy Proceedings.— Section 4044 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1344) is amended by adding at the end the following: “(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, United States Code, 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.” .Effective date note
Amendment by Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code.Worker, Retiree, and Employer Recovery Act of 2008
Pub. L. 110–458 title I § 104(c) · 122 Stat. 5092
Redesignated · 29 U.S.C. § 1344(e); 29 U.S.C. § 1344(f)
Pub. L. 110–458 redesignated subsec. (e) relating to valuation of section 1362(c) liability for determining amounts payable by corporation to participants and beneficiaries as (f)
Source evidence
Code amendment note
Subsecs. (e), (f). Pub. L. 110–458 redesignated subsec. (e) relating to valuation of section 1362(c) liability for determining amounts payable by corporation to participants and beneficiaries as (f).Enacted provision · exact public law section
(c) Amendment Related to Section 408.— Section 4044(e) of ERISA, as added by section 408(b)(2) of the 2006 Act, 29 USC 1344. is redesignated as subsection (f).Effective date note
Amendment by Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code.
25 of 25 references resolved to an enrolled provision
Editorial Notes
References in Text
The enactment of the Omnibus Budget Reconciliation Act of 1990, referred to in subsec. (d)(4), is the enactment of Pub. L. 101–508, which was approved .
Amendments1980–2008 · 7 rounds
2008
Subsecs. (e), (f). Pub. L. 110–458 redesignated subsec. (e) relating to valuation of section 1362(c) liability for determining amounts payable by corporation to participants and beneficiaries as (f).
2006
Subsec. (a)(4)(B). Pub. L. 109–280, § 407(b)(1), substituted “1322(b)(5)(B)” for “1322(b)(5)”.
Subsec. (b)(2). Pub. L. 109–280, § 407(b)(2)(A), substituted “(4), (5),” for “(5)”.
Subsec. (b)(3) to (7). Pub. L. 109–280, § 407(b)(2)(B), added par. (3) and redesignated former pars. (3) to (6) as (4) to (7), respectively.
Subsec. (e). Pub. L. 109–280, § 408(b)(2), 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.
1990
Subsec. (d)(4). Pub. L. 101–508 added par. (4).
1989
Subsec. (a)(1). Pub. L. 101–239, § 7894(g)(2), substituted “accrued” for “accured”.
Subsec. (b)(4). Pub. L. 101–239, § 7891(a)(1), 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.
Subsec. (d)(3). Pub. L. 101–239, § 7881(e)(3), made technical correction to directory language of Pub. L. 100–203, § 9311(b)(2), see 1987 Amendment note below.
1987
Subsec. (b)(4). Pub. L. 100–203, § 9311(c), struck out reference to section 405(a) of title 26.
Subsec. (d)(1). Pub. L. 100–203, § 9311(b)(1), substituted “Subject to paragraph (3), any” for “Any”.
Subsec. (d)(2). Pub. L. 100–203, § 9311(a)(1)(B), added par. (2). Former par. (2) redesignated (3).
Subsec. (d)(3). Pub. L. 100–203, § 9311(b)(2), as amended by Pub. L. 101–239, § 7881(e)(3), 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).
1986
Subsec. (a). Pub. L. 99–272, § 11016(c)(12), in provision preceding par. (1) struck out “defined benefit” after “single-employer”.
Subsec. (a)(4)(A). Pub. L. 99–272, § 11016(c)(13)(A), substituted “section 1322b(a)” for “section 1322(b)(5)”.
Subsec. (a)(4)(B). Pub. L. 99–272, § 11016(c)(13)(B), substituted “section 1322(b)(5)” for “section 1322(b)(6)”.
1980
Subsec. (a). Pub. L. 96–364, § 402(a)(7)(A), inserted “single-employer” before “defined benefit”.
Subsec. (c). Pub. L. 96–364, § 402(a)(7)(B), inserted “single-employer” before “plan occurring” wherever appearing.
Subsec. (d)(1). Pub. L. 96–364, § 402(a)(7)(C), inserted “single-employer” after “assets of a”.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment by Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code.
Effective Date of 2006 Amendment
Amendment by section 404(b) of Pub. L. 109–280 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 section 404(c) of Pub. L. 109–280, set out as a note under section 1322 of this title.
Amendment by section 407(b) of Pub. L. 109–280 applicable to plan terminations under section 1341(c) of this title with respect to which notices of intent to terminate are provided under section 1341(a)(2) of this title after , and under section 1342 of this title with respect to which notices of determination are provided under such section after such date, see section 407(d)(1) of Pub. L. 109–280, set out as a note under section 1321 of this title.
Amendment by section 408(b)(2) of Pub. L. 109–280 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 section 1342 of this title is issued, on or after the date which is 30 days after , see section 408(c) of Pub. L. 109–280, set out as a note under section 1322 of this title.
Effective Date of 1990 Amendment
Amendment by Pub. L. 101–508 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 section 1054(h) of this title 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 section 12003 of Pub. L. 101–508, set out as a note under section 4980 of Title 26, Internal Revenue Code.
Effective Date of 1989 Amendment
Amendment by section 7881(e)(3) of Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Pension Protection Act, Pub. L. 100–203, §§ 9302–9346, to which such amendment relates, see section 7882 of Pub. L. 101–239, set out as a note under section 401 of Title 26, Internal Revenue Code.
Amendment by section 7891(a)(1) of Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 7891(f) of Pub. L. 101–239, set out as a note under section 1002 of this title.
Amendment by section 7894(g)(2) of Pub. L. 101–239 effective, except as otherwise provided, as if originally included in the provision of the Employee Retirement Income Security Act of 1974, Pub. L. 93–406, to which such amendment relates, see section 7894(i) of Pub. L. 101–239, set out as a note under section 1002 of this title.
Effective Date of 1987 Amendment
Pub. L. 100–203, title IX, § 9311(d), , 101 Stat. 1330–360, as amended by Pub. L. 101–239, title VII, § 7881(e)(2), , 103 Stat. 2439, provided that:
“The amendments made by this section [amending this section] shall apply with respect to—
“(1) plan terminations under section 4041 of ERISA [29 U.S.C. 1341] with respect to which notices of intent to terminate are provided under section 4041(a)(2) of ERISA after , and
“(2) plan terminations with respect to which proceedings are instituted by the Pension Benefit Guaranty Corporation under section 4042 of ERISA [29 U.S.C. 1342] after .
Except 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 .”
Effective Date of 1986 Amendment
Amendment by Pub. L. 99–272 effective , with certain exceptions, see section 11019 of Pub. L. 99–272, set out as a note under section 1341 of this title.
Effective Date of 1980 Amendment
Amendment by Pub. L. 96–364 effective , except as specifically provided, see section 1461(e) of this title.
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), , 101 Stat. 1330–359, as amended by Pub. L. 101–239, title VII, § 7881(e)(1), (4), , 103 Stat. 2439, 2440, provided that: “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 .”
Special Temporary Rule for Termination of Single-Employer Plan
For 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 section 11008(d) of Pub. L. 99–272, set out as a note under section 1341 of this title.
Credits
1974–2008 · 8 acts
- 1974Pub. L. 93–406, title IV, § 4044, , 88 Stat. 1025
- 1980Pub. L. 96–364, title IV, § 402(a)(7), , 94 Stat. 1299
- 1986Pub. L. 99–272, title XI, § 11016(c)(12), (13), , 100 Stat. 274
- 1987Pub. L. 100–203, title IX, § 9311(a)(1), (b), (c), , 101 Stat. 1330–359, 1330–360
- 1989Pub. L. 101–239, title VII, §§ 7881(e)(3), 7891(a)(1), 7894(g)(2), , 103 Stat. 2440, 2445, 2451
- 1990Pub. L. 101–508, title XII, § 12002(b)(2)(B), , 104 Stat. 1388–566
- 2006Pub. L. 109–280, title IV, §§ 404(b), 407(b), 408(b)(2), , 120 Stat. 928, 930, 931
- 2008Pub. L. 110–458, title I, § 104(c), , 122 Stat. 5104.
Show as published
(Pub. L. 93–406, title IV, § 4044, , 88 Stat. 1025; Pub. L. 96–364, title IV, § 402(a)(7), , 94 Stat. 1299; Pub. L. 99–272, title XI, § 11016(c)(12), (13), , 100 Stat. 274; Pub. L. 100–203, title IX, § 9311(a)(1), (b), (c), , 101 Stat. 1330–359, 1330–360; Pub. L. 101–239, title VII, §§ 7881(e)(3), 7891(a)(1), 7894(g)(2), , 103 Stat. 2440, 2445, 2451; Pub. L. 101–508, title XII, § 12002(b)(2)(B), , 104 Stat. 1388–566; Pub. L. 109–280, title IV, §§ 404(b), 407(b), 408(b)(2), , 120 Stat. 928, 930, 931; Pub. L. 110–458, title I, § 104(c), , 122 Stat. 5104.)