This notice announces that the Service is beginning to process determination
letter and examination cases in which an application for a determination letter
or a plan under examination involves an amendment to change a traditional
defined benefit plan into a cash balance plan and provides related guidance.
This notice also provides transitional guidance on the requirements of §§ 411(a)(13)
and 411(b)(5) of the Internal Revenue Code (Code), as added by section 701(b)
of the Pension Protection Act of 2006, Public Law 109-280 (PPA ’06),
which was enacted on August 17, 2006. This guidance generally relates to
cash balance plans and other hybrid defined benefit pension plans and to amendments
that convert defined benefit pension plans to hybrid defined benefit pension
plans. This notice also requests comments on certain issues raised by §§ 411(a)(13)
and 411(b)(5).
A defined benefit pension plan generally must satisfy the minimum vesting
standards of § 411(a) and the accrual requirements of § 411(b)
in order to be qualified under § 401(a). Both sections have been
modified by section 701(b) of PPA ’06, which added §§ 411(a)(13)
and 411(b)(5) to the Code.
Section 411(a)(13)(A) provides that a plan described in § 411(a)(13)(C)
is not treated as failing to meet either (i) the requirements of § 411(a)(2)
(subject to a special vesting rule in § 411(a)(13)(B) with respect
to benefits derived from employer contributions), or (ii) the requirements
of § 411(c) or § 417(e) with respect to benefits derived
from employer contributions, solely because the present value of the accrued
benefit (or any portion thereof) of any participant is, under the terms of
the plan, equal to the amount expressed as the balance in a hypothetical account
or as an accumulated percentage of the participant’s final average compensation.
A plan is described in § 411(a)(13)(C)(i) if the plan is a
defined benefit plan under which the accrued benefit (or any portion thereof)
of a participant is calculated as the balance of a hypothetical account maintained
for the participant or as an accumulated percentage of the participant’s
final average compensation. Under § 411(a)(13)(C)(ii), the Secretary
is to issue regulations that treat any defined benefit plan (or any portion
of such a plan) that has an effect similar to a plan described in § 411(a)(13)(C)(i)
as if it were described in § 411(a)(13)(C)(i). For purposes of
this notice, a plan described either in § 411(a)(13)(C)(i) or in
regulations or other guidance issued pursuant to § 411(a)(13)(C)(ii)
is referred to as a statutory hybrid plan.
Section 411(b)(1)(H)(i) provides that a defined benefit plan fails to
comply with § 411(b) if, under the plan, an employee’s benefit
accrual is ceased, or the employee’s rate of benefit accrual is reduced,
because of the attainment of any age. Section 411(b)(5)(A), as added by section
701(b)(1) of PPA ’06, generally provides that a plan will not be treated
as failing to meet the requirements of § 411(b)(1)(H)(i) if a participant’s
benefit accrued to date, as determined as of any date under the terms of the
plan, would be equal to or greater than that of any similarly situated, younger
individual who is or could be a participant. For purposes of this notice,
a participant’s benefit accrued to date is referred to as the participant’s accumulated
benefit. Under § 411(b)(5)(A)(iv), for purposes of the
safe harbor standard of § 411(b)(5)(A), a participant’s accumulated
benefit may, under the terms of the plan, be expressed as an annuity payable
at normal retirement age, the balance of a hypothetical account, or the current
value of the accumulated percentage of the employee’s final average
compensation.
Section 411(b)(5)(B) imposes several requirements on a statutory hybrid
plan as a condition of satisfying § 411(b)(1)(H). First, § 411(b)(5)(B)(i)
provides that a statutory hybrid plan is treated as failing to meet the requirements
of § 411(b)(1)(H) if the terms of the plan provide for an interest
credit (or an equivalent amount) for any plan year at a rate that is greater
than a market rate of return. Second, § 411(b)(5)(B)(ii) and (iii)
contain minimum benefit rules that apply if, after June 29, 2005, an amendment
is adopted that converts a defined benefit plan to a statutory hybrid plan.
For purposes of this notice, such an amendment is referred to as a conversion
amendment. Third, § 411(b)(5)(B)(vi) provides a special
rule for projecting variable interest crediting rates in the case of a terminating
statutory hybrid plan. In addition, § 411(a)(13)(B) requires a
statutory hybrid plan to provide that an employee who has completed at least
3 years of service has a nonforfeitable right to 100 percent of the employee’s
accrued benefit derived from employer contributions.
Section 411(b)(5)(E) provides that a plan is not treated as failing
to meet the requirements of § 411(b)(1)(H) solely because the plan
provides for indexing of accrued benefits under the plan. Under § 411(b)(5)(E)(iii),
indexing means, in connection with an accrued benefit, the periodic adjustment
of the accrued benefit by means of the application of a recognized investment
index or methodology.
Section 701(a) of PPA ’06 added provisions to the Employee Retirement
Income Security Act of 1974, Public Law 93-406 (ERISA) that are parallel to
the above described sections of the Code that were added by section 701(b)
of PPA ’06. The guidance provided in this notice with respect to the
Code also applies for purposes of the parallel amendments to ERISA made by
PPA ’06.[1]
Section 701(c) of PPA ’06 added provisions to the Age Discrimination
in Employment Act of 1967, Public Law 90-202 (ADEA), that are parallel to
§ 411(b)(5) of the Code. Executive Order 12067 requires all Federal
departments and agencies to advise and offer to consult with the Equal Employment
Opportunity Commission (EEOC) during the development of any proposed rules,
regulations, policies, procedures or orders concerning equal employment opportunity.
Treasury and the Service have consulted with the EEOC prior to the issuance
of this notice.
The amendments made by section 701 of PPA ’06 are generally effective
for periods beginning on or after June 29, 2005. There are a number of special
effective date rules, some of which are described in this notice. Section
701(d) of PPA ’06 provides that nothing in the amendments made by section
701 should be construed to create an inference concerning the treatment of
statutory hybrid plans or conversions of plans into such plans under § 411(b)(1)(H),
or concerning the determination of whether a statutory hybrid plan fails to
meet the requirements of § 411(a)(2), 411(c), or 417(e) as in effect
before such amendments solely because the present value of the accrued benefit
(or any portion thereof) of any participant is equal to the amount expressed
as the balance in a hypothetical account or as an accumulated percentage of
the participant’s final average compensation.
Section 702 of PPA ’06 requires the Secretary to prescribe regulations
for the application of the provisions of section 701 of PPA ’06 in cases
where the conversion of a plan to a statutory hybrid plan is made with respect
to a group of employees who become employees by reason of a merger, acquisition,
or similar transaction.
Proposed regulations (EE-184-86, 1988-1 C.B. 881) under §§ 411(b)(1)(H)
and 411(b)(2) were published by Treasury and the Service in the Federal Register
on April 11, 1988 (53 F.R. 11876), as part of a package of regulations that
also included proposed regulations under §§ 410(a), 411(a)(2),
411(a)(8), and 411(c) (relating to the maximum age for participation, vesting,
normal retirement age, and actuarial adjustments after normal retirement age,
respectively).[2]
Notice 96-8, 1996-1 C.B. 359, described the application of §§ 411
and 417(e), prior to the enactment of PPA ’06, to a single-sum distribution
under a cash balance plan where interest credits under the plan are frontloaded
(i.e., where future interest credits to an employee’s
hypothetical account balance are not conditioned upon future service and thus
accrue at the same time that the benefits attributable to a hypothetical allocation
to the account accrue). Under the analysis set forth in Notice 96-8, in order
to comply with §§ 411(a) and 417(e) in calculating the amount
of a single-sum distribution under a cash balance plan, the balance of an
employee’s hypothetical account must be projected to normal retirement
age and converted to an annuity under the terms of the plan, and then the
employee must be paid at least the present value of the projected annuity,
determined in accordance with § 417(e). Under that analysis, where
a cash balance plan provides frontloaded interest credits using an interest
rate that is higher than the § 417(e) applicable interest rate,
payment of a single-sum distribution equal to the current hypothetical account
balance as a complete distribution of the employee’s accrued benefit
may result in a violation of § 417(e) or a forfeiture in violation
of § 411(a). In addition, Notice 96-8 proposed a safe harbor that
provided that, if frontloaded interest credits are provided under a plan at
a rate no greater than the sum of identified standard indices and associated
margins, no violation of § 411(a) or 417(e) would result if the
employee’s entire accrued benefit is distributed in the form of a single-sum
distribution equal to the employee’s hypothetical account balance, provided
the plan uses appropriate annuity conversion factors.
On September 15, 1999, the Service’s Director, Employee Plans,
issued a field directive requiring that open determination letter applications
and examination cases that involved the conversion of a defined benefit plan
formula into a benefit formula commonly known as a cash balance formula be
submitted for technical advice with respect to the conversion’s effect
on the qualified status of the plan (referred to in this notice as the 1999
Field Directive). The 1999 Field Directive identified as a cash
balance formula a benefit formula in a defined benefit plan by whatever name
(e.g., personal account plan, pension equity plan, life
cycle plan, cash account plan, etc.) that, rather than expressing the accrued
benefit as a life annuity commencing at normal retirement age, defines benefits
for each employee by reference to a single-sum distribution amount. In Announcement
2003-1, 2003-1 C.B. 281, the Service announced that the cases that were the
subject of the 1999 Field Directive would not be processed pending issuance
of regulations addressing age discrimination.
III. TRANSITIONAL GUIDANCE
This part III provides transitional guidance with respect to rules in
§§ 411(a)(13) and 411(b)(5) that relate to statutory hybrid
plans and the conversion of a defined benefit plan into a statutory hybrid
plan. The transitional guidance provided in this part III applies pending
the issuance of further guidance.
A. Section 411(a)(13)(C): Definition of statutory hybrid
plan.
1. In general. A statutory hybrid plan described
in § 411(a)(13)(C)(i) and (ii) is a plan that is either a lump sum
based plan or a plan that has a similar effect to a lump sum based plan.
For purposes of this notice, the term lump sum based plan means
a defined benefit plan under the terms of which the accumulated benefit of
a participant is expressed as the balance of a hypothetical account maintained
for the participant or as the current value of the accumulated percentage
of the participant’s final average compensation, and includes a plan
under which the accrued benefit under the terms of the plan is calculated
as the actuarial equivalent of such a hypothetical account balance or accumulated
percentage. Whether a plan is a lump sum based plan is determined based on
how the accumulated benefit of a participant is expressed under the terms
of the plan, and does not depend on whether the plan provides for an optional
form of benefit in the form of a lump sum payment.
2. Similar effect to a lump sum based plan.
(i) Treated as having a similar effect. Except
as provided below in part IIIA(2)(ii) of this notice, a plan that is not a
lump sum based plan is treated as having a similar effect to a lump sum based
plan if the plan provides that a participant’s accrued benefit (payable
at normal retirement age) is expressed as a benefit that includes automatic
periodic increases through normal retirement age that results in the payment
of a larger amount at normal retirement age to a similarly situated participant
who is younger. This includes a plan that provides for indexing of accrued
benefits within the meaning of § 411(b)(5)(E)(iii), such as a plan
that expresses the accrued benefit as an indexed annuity.
(ii) Not treated as having a similar effect.
(I) Plan with post-retirement adjustment. A plan
described in § 411(b)(5)(E) that solely provides for post-retirement
adjustment of the amounts payable to a participant is not treated as having
a similar effect to a lump sum based plan.
(II) Variable annuity plan. A variable annuity
plan is not treated as having a similar effect to a lump sum based plan if
it has an assumed interest rate used for purposes of adjustment of amounts
payable to a participant that is at least five percent. For this purpose,
a variable annuity plan includes any plan which provides that the amount payable
is periodically adjusted by reference to the difference between the rate of
return of plan assets (or specified market indices) and the assumed interest
rate.
B. Section 411(a)(13): Special rules for the application
of §§ 411(a)(2), 411(c), and 417(e).
1. In general. Section 411(a)(13)(A) provides
special rules with respect to §§ 411(a)(2), 411(c), and 417(e)
for benefits expressed as the balance of a hypothetical account maintained
for a participant or as the current value of the accumulated percentage of
a participant’s final average compensation under a lump sum based plan.
Specifically, with respect to such benefits, a lump sum based plan is not
treated as failing to meet the requirements of § 411(a)(2), or the
requirements of §§ 411(c) and 417(e) with respect to such benefits
derived from employer contributions, solely because the present value of such
benefits of any participant is, under the terms of the plan, equal to the
amount expressed as the balance in the hypothetical account or as the accumulated
percentage of the participant’s final average compensation. Section
411(a)(13)(A) does not apply to benefits under a statutory hybrid plan that
are expressed neither as the balance of a hypothetical account maintained
for a participant nor as the current value of the accumulated percentage of
a participant’s final average compensation.
2. Effective date. Section 411(a)(13)(A) is effective
for distributions made after August 17, 2006. The Service expects to issue
regulations shortly interpreting the effective date of § 411(a)(13)(A).
3. Section 411(d)(6) relief. In the case of a
lump sum based plan that provides for a single-sum distribution to a participant
that exceeds the participant’s hypothetical account balance or accumulated
percentage of final average compensation, the plan may be amended to eliminate
the excess for distributions made after August 17, 2006, under the rules of
section 1107 of PPA ’06. Because such an amendment is made pursuant
to section 701 of PPA ’06, section 1107 of PPA ’06 applies to
the amendment if the amendment satisfies the requirements specified in section
1107. Thus, if the amendment is adopted on or before the last day of the
first plan year beginning on or after January 1, 2009 (January 1, 2011, for
a governmental plan), and the plan is operated as if such amendment were in
effect as of the first date the amendment is effective, then the amendment
does not violate section 411(d)(6) with respect to distributions made after
the later of August 17, 2006, or the effective date of the amendment.
4. Section 4980F. Pursuant to this notice, in
the case of an amendment described in section B(3) of this part III, a notice
required under § 4980F (and the parallel provision at section 204(h)
of ERISA) must be provided at least 30 days before the date the amendment
is first effective. Thus, if an amendment described in section B(3) of this
part III that significantly reduces the rate of future benefit accrual for
purposes of § 4980F is adopted retroactively (i.e.,
is adopted after the effective date of the amendment) as an amendment under
the rules of section 1107 of PPA ’06, then the notice required under
§ 4980F must be provided at least 30 days before the earliest date
on which the plan is operated in accordance with the amendment.
5. Vesting. See § 411(a)(13)(B) for
a special 3-year vesting schedule for statutory hybrid plans.
C. Section 411(b)(5)(A)(iv): Scope of rule.
In applying the age discrimination test set forth in § 411(b)(5)(A)(i),
a lump sum based plan may under § 411(b)(5)(A)(iv) determine the
accumulated benefit of a participant as the balance of a hypothetical account
or the current value of the accumulated percentage of the employee’s
final average compensation even if the plan defines the participant’s
accrued benefit as an annuity at normal retirement age that is actuarially
equivalent to such balance or value.
D. Section 411(b)(5)(B)(i): Market rate of return.
1. Future guidance on market rate of return.
During 2007, Treasury and the Service expect to issue guidance that addresses
the market rate of return rules at § 411(b)(5)(B)(i), including
the special rule regarding preservation of capital under § 411(b)(5)(B)(i)(II)
and the minimum rate of return rules in the second sentence of § 411(b)(5)(B)(i)(I).
The guidance is also expected to address the extent to which § 411(d)(6)
relief provided under section 1107 of PPA ’06 applies to an amendment
to a statutory hybrid plan that changes the plan’s interest crediting
rate where such amendment is adopted after August 17, 2006.
2. Safe harbor. Pending further guidance, a market
rate of return for purposes of § 411(b)(5)(B)(i) includes the rate
of interest on long-term investment grade corporate bonds (as described in
§ 412(b)(5)(B)(ii)(II) prior to amendment by PPA ’06 for plan
years beginning prior to January 1, 2008, and the third segment rate described
in § 430(h)(2)(C)(iii) for subsequent plan years) or the rate of
interest on 30-year Treasury securities (as described in § 417(e)(3)
prior to amendment by PPA ’06). In addition, a market rate of return
for purposes of § 411(b)(5)(B)(i) includes the sum of any of the
standard indices and the associated margin for that index as described in
part IV of Notice 96-8.
3. Certain plan termination requirements. See
§ 411(b)(5)(B)(vi) for required plan terms related to termination
of a statutory hybrid plan.
E. Section 411(b)(5)(B)(ii) — (iv): Special rules
for conversion amendments.
1. In general. Section 411(b)(5)(B)(ii) provides
that if a conversion amendment is adopted with respect to a plan after June
29, 2005, the plan is treated as failing to meet the requirements of § 411(b)(1)(H)
unless the requirements of § 411(b)(5)(B)(iii) are met with respect
to each individual who was a participant in the plan immediately before the
adoption of the conversion amendment.
2. Requirements of § 411(b)(5)(B)(iii).
Subject to § 411(b)(5)(B)(iv), § 411(b)(5)(B)(iii) is
satisfied with respect to any participant if the accrued benefit of the participant
under the terms of the plan as in effect after the conversion amendment is
not less than the sum of—
(i) the participant’s accrued benefit for years of service before
the effective date of the conversion amendment, determined under the terms
of the plan as in effect before the amendment, and
(ii) the participant’s accrued benefit for years of service after
the effective date of the amendment, determined under the terms of the plan
as in effect after the amendment.
3. Requirements of § 411(b)(5)(B)(iv).
Under § 411(b)(5)(B)(iv), a plan must credit the accumulation account
or similar account for purposes of the accrued benefit described in part IIIE(2)(ii)
of this notice with the amount of any early retirement benefit or retirement-type
subsidy for the plan year in which the participant retires if, as of such
time, the participant has met the age, years of service, and other requirements
under the plan for entitlement to such benefit or subsidy. For this purpose,
the date on which a participant retires means the annuity starting date for
the participant’s benefit.
4. Effective date. Section 411(b)(5)(B)(ii) applies
to a conversion amendment that is adopted after, and takes effect after, June
29, 2005. See section 701(e)(5) of PPA ’06 for a special election with
respect to § 411(b)(5)(B)(ii).
F. Safe harbor for conversions related to mergers and acquisitions.
1. Future guidance on conversions related to mergers and
acquisitions. In accordance with section 702 of PPA ’06,
the Service expects to issue regulations not later than August 17, 2007, regarding
an amendment to convert a defined benefit plan into a hybrid defined benefit
plan with respect to a group of employees who become employees by reason of
a merger, acquisition, or similar transaction.
2. Safe harbor. Pending further guidance, a plan
amendment described in part IIIE that is also described in part IIIF(1) of
this notice is not treated as failing to meet the requirements of § 411(b)(1)(H)
if the benefit of each participant under the plan as amended is not less than
the sum of:
(A) the participant’s section 411(d)(6) protected benefit (as
defined in § 1.411(d)-3(g)(14)) with respect to service before the
effective date of the conversion amendment, determined under the terms of
the plan as in effect before the amendment, and
(B) the participant’s section 411(d)(6) protected benefit with
respect to service on and after the effective date of the conversion amendment,
determined under the terms of the plan as in effect after the amendment.
For purposes of this paragraph F(2), the benefits under clause (A) and
the benefits under clause (B) of this paragraph F(2) must each be determined
in the same manner as if they were provided under separate plans that are
independent of each other (e.g., without any benefit
offsets).
IV. DETERMINATION LETTERS
In light of the enactment of section 701 of PPA ’06, the Service
is no longer applying the 1999 Field Directive and Announcement 2003-1 and
is beginning to process the determination letters and examination cases that
were the subject of such field directive and announcement (referred to as moratorium
plans in this notice). This part IV describes certain rules that
will be applied for purposes of processing moratorium plans. Qualification
requirements that are not described in this part IV (e.g.,
the backloading rules of § 411(b)(1)(A), (B), and (C)) continue
to apply.
A. Age discrimination.
1. In general. Except as provided in part IVA(2)
of this notice, a moratorium plan will be reviewed as to whether accruals
under the plan that relate to service performed by the participant after the
conversion violate § 411(b)(1)(H). For this purpose, a moratorium
plan will not be treated as failing to satisfy the requirements of § 411(b)(1)(H)
merely because a moratorium plan that is frontloaded provides that interest
credits through normal retirement age are accrued in the year of the related
hypothetical allocation.
2. Pre-6/30/05 conversions. For purposes of processing
a determination letter application for a moratorium plan, the plan will not
be reviewed as to whether the conversion of the plan satisfies the requirements
of § 411(b)(1)(H) if the amendment that results in the conversion
was adopted prior to June 30, 2005. Therefore, determination letters issued
to moratorium plans will not consider, and may not be relied on with respect
to, whether such a conversion satisfies the requirements of § 411(b)(1)(H),
as in effect prior to the addition of § 411(b)(5) by PPA ’06,
including the effect of any wearaway.
3. Post-6/29/05 conversions. In the case of a
moratorium plan that involves a conversion of the plan to a statutory hybrid
plan pursuant to an amendment that is adopted after June 29, 2005, the conversion
must satisfy the requirements of § 411(b)(5)(B)(ii) (described in
part IIIE of this notice).
B. Distributions before August 18, 2006. The
Service expects to issue regulations interpreting the effective date of § 411(a)(13)(A)
(described in part IIIB(2) of this notice). Until this guidance is issued,
the Service will not process a moratorium plan that does not satisfy the requirements
of Notice 96-8 with respect to distributions made before August 18, 2006.
C. Terminating plans. Under Title IV of ERISA,
a standard termination may only occur if, when the final distribution of assets
occurs, the plan is sufficient for benefit liabilities determined as of the
termination date. See § 4041(b)(1)(D) of ERISA;
29 C.F.R. § 4041.8(a). The Pension Benefit Guaranty Corporation
(PBGC) has informed the Service that, for purposes of Title IV of ERISA, a
terminating plan with a termination date that is prior to August 18, 2006,
cannot apply § 411(a)(13)(A) in determining its benefit liabilities
with respect to any distributions made by the terminating plan.
V. COMMENTS REQUESTED AND FUTURE REGULATIONS
Treasury and the Service expect to issue regulations with respect to
the transitional guidance provided in this notice and the issues described
in part IIIB(2) of this notice. These initial regulations may address some
additional issues, but will not address all of the outstanding issues relating
to §§ 411(a)(13) and 411(b)(5).
Comments are requested on the following additional issues. These comments
will be considered in conjunction with the comments received in response to
the initial regulations in developing additional guidance.
-
Identification of when two or more amendments, or the coordination of
two or more defined benefit plans, have the effect of a conversion into a
statutory hybrid plan.
-
The definition of market rate of return for purposes of § 411(b)(5)(B)(i),
including the following related issues:
-
The impact of the minimum rate of return rules in the second sentence
of § 411(b)(5)(B)(i)(I) on the definition of market rate of return.
-
The impact of the preservation of capital rule in § 411(b)(5)(B)(i)(II)
on the definition of market rate of return.
-
The application of § 411(d)(6) to an amendment to the interest
crediting rate specified in a statutory hybrid plan, and the circumstances
under which the § 411(d)(6) relief provided under section 1107 of
PPA ’06 should apply to such an amendment.
-
Application of the special rules for hybrid plans in the case of a plan
in which only certain participants’ accrued benefits, or only a portion
of a participant’s accrued benefit, is determined by reference to a
hypothetical account balance or an accumulated percentage of final average
compensation, including plans in which the benefit payable under one plan
is offset by the benefit provided under another plan.
-
The application of qualification requirements other than §§ 411(b)(1)(H)
and 417(e) to a defined benefit plan under which the accrued benefit is calculated
as an accumulated percentage of the participant’s final average compensation
(commonly referred to as a pension equity plan or PEP), including the treatment
of interest credited with respect to terminated vested participants.
-
The definition of a recognized index or methodology for purposes of
§ 411(b)(5)(E) and whether there are any types of indexed plans
that should not be treated as statutory hybrid plans other than those described
in part IIIA(2)(i) above.
Written comments should be submitted by April 16, 2007. Send submissions
to CC:PA:LPD:DRU (Notice 2007-6), Room 5203, Internal Revenue Service, POB
7604 Ben Franklin Station, Washington, D.C. 20044. Comments may be hand
delivered to CC:PA:LPD:DRU (Notice 2007-6), Room 5203, Internal Revenue Service,
1111 Constitution Avenue, NW, Washington, DC. Alternatively, comments may
be submitted via the Internet at [email protected] (Notice
2007-6). All comments will be available for public inspection.
The principal authors of this notice are Kathleen J. Herrmann of the
Employee Plans, Tax Exempt and Government Entities Division and Christopher
A. Crouch, Lauson C. Green, and Linda S. F. Marshall of the Office of the
Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities).
For further information regarding this notice, contact Ms. Herrmann at (202)
283-9888 and Mr. Crouch, Mr. Green, and Ms. Marshall at (202) 622-6090 (not
toll-free numbers).
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