[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1857 Introduced in Senate (IS)]







108th CONGRESS
  1st Session
                                S. 1857

   To amend the Internal Revenue Code of 1986 to provide procedural 
   fairness in the application of the controlled group provisions to 
employers who contribute to multiemployer pension plans and who engage 
                  in bona fide corporate transactions.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

           November 13, (legislative day, November 12), 2003

  Mr. Lott (for himself and Mr. Smith) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
   To amend the Internal Revenue Code of 1986 to provide procedural 
   fairness in the application of the controlled group provisions to 
employers who contribute to multiemployer pension plans and who engage 
                  in bona fide corporate transactions.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Multiemployer Pension Plan 
Procedural Fairness Act of 2003''.

SEC. 2. AMENDMENT TO THE INTERNAL REVENUE CODE OF 1986.

    (a) In General.--Section 414(f) of the Internal Revenue Code of 
1986 is amended--
            (1) by striking paragraph (2) and inserting the following:
            ``(2) Common control.--
                    ``(A) In general.--For purposes of this subsection 
                and subtitle E of title IV of the Employee Retirement 
                Income Security Act of 1974 (29 U.S.C. 1381 et seq.), 
                all trades or businesses (whether or not incorporated) 
                which are under common control within the meaning of 
                subsection (c) are considered a single employer.
                    ``(B) Principal purpose test.--If a principal 
                purpose of any transaction is to evade or avoid 
                liability under subtitle E of title IV of the Employee 
                Retirement Income Security Act of 1974 (29 U.S.C. 1381 
                et seq.), then, subject to paragraph (6), the 
                determination of whether one or more trades or 
                businesses are under common control for purposes of 
                such subtitle shall be made without regard to such 
                transaction.'', and
            (2) by adding at the end the following:
            ``(6) Determination of common control more than 5 years 
        following a transaction.--
                    ``(A) In general.--If--
                            ``(i) a plan sponsor of a plan determines 
                        that--
                                    ``(I) a complete or partial 
                                withdrawal of an employer has occurred, 
                                or
                                    ``(II) an employer is liable for 
                                withdrawal liability payments with 
                                respect to the complete or partial 
                                withdrawal of an employer from the 
                                plan,
                            ``(ii) such determination is based in whole 
                        or in part on a finding by the plan sponsor 
                        that a principal purpose of any transaction was 
                        to evade or avoid liability under subtitle E of 
                        title IV of the Employee Retirement Income 
                        Security Act of 1974 (29 U.S.C. 1381 et seq.), 
                        and
                            ``(iii) such transaction occurred at least 
                        5 years before the date of the complete or 
                        partial withdrawal,
                then the special rules under subparagraph (B) shall be 
                used in applying section 4219(c) and section 4221(a) of 
                the Employee Retirement Income Security Act of 1974 (29 
                U.S.C. 1399(c) and 1401(a)) to the employer.
                    ``(B) Special rules.--
                            ``(i) Determination.--Notwithstanding 
                        section 4221(a)(3) of the Employee Retirement 
                        Income Security Act of 1974 (29 U.S.C. 
                        1401(a)(3))--
                                    ``(I) a determination by the plan 
                                sponsor under subparagraph (A)(i) shall 
                                not be presumed to be correct, and
                                    ``(II) the plan sponsor shall have 
                                the burden to establish, by a 
                                preponderance of the evidence, each and 
                                every element of the claim for 
                                withdrawal liability.
                            ``(ii) Procedure.--Notwithstanding section 
                        4219(c) and section 4221(d) of the Employee 
                        Retirement Income Security Act of 1974 (29 
                        U.S.C. 1399(c) and 1401(d)), if an employer 
                        contests the plan sponsor's determination under 
                        subparagraph (A)(i) through an arbitration 
                        proceeding pursuant to section 4221(a) of such 
                        Act (29 U.S.C. 1401(a)), or through a claim 
                        brought in a court of competent jurisdiction, 
                        the employer shall not be obligated to make any 
                        withdrawal liability payments until a final 
                        decision in the arbitration, or in court, 
                        upholds the plan sponsor's determination.''.
    (c) Effective Date.--The amendments made by this section shall 
apply to any employer that receives a notification under section 
4219(b)(1) of the Employee Retirement Income Security Act of 1974 (29 
U.S.C. 1399(b)(1)) after October 31, 2003.
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